BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ARLENE M. SCHUBERT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 785314
 
         BURLINGTON PEPSI-COLA C0.
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Arlene M. 
 
         Schubert against Burlington Pepsi-Cola Company, her former 
 
         employer, and Cigna Companies, its insurance carrier.  Claimant 
 
         seeks benefits as a result of injuries sustained in an accident 
 
         that occurred on December 17, 1984, when a fork lift ran over her 
 
         left foot.
 
         
 
              The case was heard at Burlington, Iowa, on January 7, 1987, 
 
         and was fully submitted upon conclusion of the hearing.  The 
 
         record in the proceeding consists of testimony from Arlene M. 
 
         Schubert, Peggy Lewis, Suzanne Adams, Connie May and Roy Nelson.  
 
         The record also contains claimant's exhibits 1 through 19 and 
 
         defendants exhibits 1, 2, 4, 5 and 6. Subsequent to the hearing, 
 
         claimant sought to introduce exhibit 20, an electromyography 
 
         report dated December 24, 1986.  Defendants objected.  Admission 
 
         of the proposed exhibit would violate Rule 343-4.31 and the 
 
         provisions of the hearing assignment order.  The objection is 
 
         sustained.
 
         
 
                                   ISSUES
 
         
 
              The parties stipulated that claimant sustained an injury on 
 
         December 17, 1984 which arose out of and in the course of her 
 
         employment with regard to injury to her left foot, but an issue 
 
         exists regarding whether the injury is limited to the left foot.  
 
         Claimant contends that it extends into her back and leg.  The 
 
         parties stipulated that the injury is a cause of disability 
 
         during a period of recovery for the left foot, but claimant 
 
         contends the injury extends beyond the foot to the left leg and
 
         her,back.  The parties stipulated that claimant's entitlement to 
 
         healing period ran from December 17, 1984 to October 29, 1985.  
 
         They further stipulated that claimant worked commencing on 
 
         October 29, 1985 through November 26, 1985 and again on December 
 
         11, 12 and 13, 1985.  Claimant also seeks healing period 
 
         compensation for all other times subsequent to October 29, 1985.  
 

 
         The parties stipulated that claimant's rate of compensation is 
 
         $172.06 per week.  In accordance with the hearing assignment 
 
         order, the issue regarding the nature and extent of claimant's 
 
         permanent disability has been severed and is not to be decided in 
 
         this decision, but is reserved for a subsequent determination.
 
         
 
              Claimant also seeks payment of medical benefits under Iowa 
 
         Code section 85.27 in the total amount of $2,767.23 which 
 
         defendants contend were unauthorized.  It was stipulated that the 
 
         provider of the services would testify that the fees were 
 
         reasonable and that the expenses were incurred for reasonable and 
 
         necessary medical treatment.  Defendants also urged that the 
 
         injury is not a proximate cause of the expenses which claimant 
 
         seeks to recover.  The parties stipulated that defendants have 
 
         paid claimant 43 weeks of healing period compensation.
 
         
 
              The parties stipulated that treatment provided by Richard 
 
         Neiman, M.D., had been authorized.
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              All the evidence received at the hearing was considered when 
 
         deciding this case even though it may not be specifically 
 
         referred to in this decision.
 
         
 
              Arlene M. Schubert is a 59-year-old lady who has been 
 
         employed by the Burlington Pepsi-Cola Company, and its 
 
         predecessor, since 1962.  Schubert testified that on December 17, 
 
         1984, a fork lift ran over her left foot, causing her to fall to 
 
         the ground and injure her left elbow, left knee and left hip.  
 
         She testified that she had a large bruise on her left hip and 
 
         scrapes on her left elbow and knee.  Claimant was taken by 
 
         ambulance to the emergency room at Burlington Medical Center 
 
         where she was treated by Duane Nelson, M.D. X-rays disclosed 
 
         multiple fractures in her left foot for which she was treated 
 
         with a cast and then sent home.  Schubert testified that, while 
 
         at the emergency room, she told the persons treating her that she 
 
         had pain in her leg, elbow and groin, and that they treated the 
 
         elbow but did nothing about her groin or hip.  Schubert testified 
 
         that when she returned home, while undressing, she and her 
 
         daughter observed a large lump on her hip that was discolored and 
 
         that they returned to the emergency room where Dr. Ridgley 
 
         diagnosed the mark as a blood clot.  Schubert testified that when 
 
         she was subsequently seen by Dr. Nelson, she complained of pain 
 
         in her leg, hip, and back and that, at times, he had her stoop 
 
         over.  She stated that, at times, Dr. Nelson treated her
 
         
 
         back and sent her to physical therapy for her foot and back.  In 
 
         May, she was treated with a CT scan and steroid injection which 
 
         she felt had not helped.  Schubert testified that, in October, 
 
         Dr. Nelson advised her that he had done as much as he could, 
 
         released her to return to work, and informed her that she could 
 
         go to her family doctor.  She testified that, by that time, her 
 
         foot was no longer painful and seemed to be healed, but that she 
 
         did have pain in her back, leg and hip which was worsening.  
 
         Claimant testified that she then went to her family physician, 
 
         Harry N. McMurray, M.D., who in turn referred her to Richard F. 
 
         Neiman, M.D. Schubert stated she is currently under care by Dr. 
 
         Neiman.
 
         
 
              Claimant testified that, when she returned to work, she was 
 
         given a job punching holes in plastic two-liter bottles, sorting 
 
         and placing them into a case.   She felt that she did the job 
 
         adequately and was happy to be back to work, but that her 
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   3
 
         
 
         
 
         employment was involuntarily terminated.
 
         
 
              Schubert testified that, prior to the injury of December 17, 
 
         1984, she had not suffered any substantial injuries to her back 
 
         or left leg and that her back and legs had not made her unable to 
 
         perform the duties of her employment.  Defendants' Exhibit 6, a 
 
         copy of claimant's personnel file, shows her to have injuries in 
 
         the nature of a strained back on January 23, 1978, and April 19, 
 
         1973 as the only recorded injuries to her back.  The personnel 
 
         file shows no prior injuries to her left leg.  Claimant testified 
 
         that she was not restricted with regard to her leg or back prior 
 
         to the accident of December 17, 1984.  She denied sustaining any 
 
         other injury to her back since December 17, 1984.  Claimant 
 
         acknowledged one subsequent occasion, when she fell and injured 
 
         her foot for which it was again placed in a cast.  She stated 
 
         that she recovered from that incident and that her back returned 
 
         to the same condition as it was before she stumbled.  Claimant 
 
         testified that her back and hip are worse now than they were at 
 
         the time she returned to work in October, 1985.
 
         
 
              Schubert testified that, under the direction of Dr. Neiman, 
 
         she received tests and treatment at Mercy Hospital in Iowa City, 
 
         and was referred to Dr. Dykstra at Steindler Clinic who also 
 
         examined her and ordered steroid treatments.  Schubert testified 
 
         that she takes pain pills which she acquires at the Apothecary 
 
         and that the pills were prescribed by her doctors for the pain in 
 
         her back and leg.
 
         
 
              Claimant testified that she had nothing wrong with her when 
 
         she went to work on the morning of December 17, 1984.
 
         
 
         
 
              Peggy Lewis and Suzanne Adams testified that they are 
 
         friends of the claimant and have known her for several years.  
 
         Both testified that, prior to Schubert's December 17, 1984 
 
         injury, she was very active and exhibited no apparent 
 
         restrictions in her back or legs and gave no indication of being 
 
         in pain.
 
         Both also testified that since the injury, Schubert has exhibited 
 
         restricted physical activity, that it appears to be hard for her 
 
         to bend, and that she moves in a slower manner.  Both testified 
 
         that there are times when she appears to be in pain.
 
         
 
              Connie May, claimant's daughter, visited claimant at the 
 
         emergency room on December 17, 1984, observed the discoloration 
 
         and lump on claimant's left hip, and took her back to the 
 
         emergency room.  May cared for claimant for at least six weeks 
 
         and testified that claimant made complaints of pain in her foot 
 
         and hip during that period of time.
 
         
 
              May testified that she observed nothing wrong with 
 
         claimant's back, left hip or leg prior to December, 1984 and 
 
         stated that she knew of no prior injuries to claimant's back, hip 
 
         or leg.  She stated that claimant had previously exhibited no 
 
         restriction of motion and was very active.  She stated that, 
 
         since the injury of December, 1984, claimant is unable to bend, 
 
         kneel or squat as before and, in general, moves like an old 
 
         person.  May testified that claimant's condition is worsening 
 
         with the passage of time.  Connie May testified that Dr. Nelson, 
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   4
 
         
 
         
 
         an orthopaedic specialist, has now moved away from the 
 
         Burlington, Iowa area.
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              The primary issue in this case concerns whether or not the 
 
         fork lift accident of December 17, 1984, is a proximate cause of 
 
         injury to claimant's back or left hip and leg, rather than being 
 
         limited to her left foot.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 17, 1984 is causally 
 
         related to the disability on which claimant now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result, it need not be the only cause.  
 
         Blacksmith v. All American Inc., 290 N.W.2d 348, 354 (1980 
 
         Iowa).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (962).
 
         
 
              Joint Exhibit 1 is the deposition of Richard F. Neiman, 
 
         M.D., taken November 6, 1986.  Dr. Neiman is a qualified 
 
         neurologist.  As a result of the various diagnostic tests which 
 
         have been performed, Dr. Neiman has diagnosed claimant as having 
 
         severe spinal stenosis at the L4-5 level with an anteriorly 
 
         bulging disc. (Defendants' Exhibit 5; report dated May 22, 1986) 
 
         Dr. Neiman notes that claimant had extensive osteoarthritis in 
 
         her back which probably predated the accident but was aggravated 
 
         by the accident. (Defendants' Exhibit 5; report dated April 14, 
 
         1986) (Joint Exhibit 1, pages 10-12) Dr. Neiman indicated that a 
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   5
 
         
 
         
 
         multitude of activities could aggravate a preexisting condition 
 
         such as the one claimant had prior to her fall. (Joint Exhibit 1, 
 
         page 15) He stated, however:
 
         
 
              We see in many individuals who have asymptomatic 
 
              degenerative changes in the back with foraminal stenosis, a 
 
              relatively minor injury, like a fall, coming down can give 
 
              -- make a very symptomatic condition, so I'd have to say 
 
              even though you see a pre-existing condition, I felt the 
 
              accident was the responsible cause. (Joint Exhibit 1, page 
 
              17)
 
         
 
              Dr. Neiman opined that there was a direct causal connection 
 
         between claimant's spinal condition and the injury of December 
 
         17, 1984. (Joint Exhibit 1, pages 20, 21, 24, 25) Dr. Neiman 
 
         explained his disagreement with the opinion of Dr. Nelson, who 
 
         felt that there was no relationship between the trauma of 
 
         December 17, 1984 and claimant's current back condition.  He 
 
         stated:
 
         
 
              Well, certainly we have a condition of trauma to the 
 
              buttocks.  She obviously fell and hit the buttocks.  That's 
 
              well confirmed on the emergency room note.  It describes a 5 
 
              by 8 centimeter hematoma over the left thigh.  She obviously 
 
              fell and struck it.  She had pain referable in the lower 
 
              back since the time of the injury.  Dr. McMurray felt that 
 
              she had definite symptoms at least in his notes going 
 
              through this.  I felt her history was certainly consistent 
 
              with that of an injury to the lower back being caused by the 
 
              fall itself.  I thought there was just no question about it 
 
              at all. (Joint Exhibit 1, page 24)
 
         
 
              H.N. McMurray, M.D., claimant's long-time family physician, 
 
         in a report dated January 14, 1986, stated that his records going 
 
         back to 1971 showed no prior problems relating to claimant having 
 
         low back pain or left sciatic involvement.  He also indicated 
 
         that he had treated claimant for a possible thrombophlebitis 
 
         connected with the hematoma on her hip in early 1985.  Dr. 
 
         McMurray indicated in the report that when he examined claimant 
 
         again on November 8, 1985, she exhibited some sciatic symptoms on 
 
         the left side.  After testing and treatment for the problem, Dr. 
 
         McMurray recommended that claimant see a neurologist.  In the 
 
         next to last paragraph of the report, Dr. McMurray stated, "It 
 
         was my impression at that time that the current problem involved 
 
         was that of traumatic origin, and she should continue under the 
 
         care of the original physician .... She was referred back to Dr. 
 
         Nelson."
 
         
 
              Duane K. Nelson, M.D., was claimant's treating physician.  
 
         In a report dated December 20, 1985, he stated:
 
         
 
              I think that Mrs. Schubert's low back pain and sciatic pain 
 
              are from degenerative disease in her back.  I do not find 
 
              evidence of a traumatic injury.  The temporal relationship 
 
              between injury and complaints is such that I cannot 
 
              attribute her symptoms to the injury in December of 1984.  
 
              Most cases of low back pain and sciatica are from 
 
              degenerative changes although in our society a relationship 
 
              to an injury or work condition is often sought to explain 
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   6
 
         
 
         
 
              the discomfort.
 
         
 
              In a report dated December 4, 1985, Dr. Nelson stated:
 
         
 
              The recovery was delayed by the development of low back and 
 
              sciatic like pain.  I cannot attribute these symptoms to her 
 
              initial injury and [in] my opinion they are an unrelated 
 
              problem.
 
         
 
              Earlier indication in Dr. Nelson's notes seems somewhat 
 
         inconsistent with the December reports.  A note dated February 
 
         22, 1985 shows that he performed a straight leg raise test and 
 
         also tested for knee jerks and ankle jerks, tests commonly 
 
         performed on individuals with complaints of low back pain or
 
         
 
         
 
         
 
         
 
         evidence of nerve impingement.  A note of May 1, 1985 shows that 
 
         those tests have again been performed.  In a note of July 29, 
 
         1985, Dr. Nelson states:
 
         
 
              I think most of her left lower extremity symptoms may 
 
              be due to radicular symptoms and an L5 distribution 
 
              .... Her lower extremity pains have been present ever 
 
              since her fall and I'm sure are due to her injury.  We 
 
              do know that she did have a contusion over the lateral 
 
              aspect of her hip and its [sic] very likely that she 
 
              began to experience the low grade radicular symptoms at 
 
              that time.
 
         
 
              In a report of October 10, 1985, Dr. Nelson states, "She has 
 
         a sciatica which may or may not be related to her initial 
 
         injury." He then went on to provide a disability rating and 
 
         released her to return to work with restrictions.
 
         
 
              Claimant obviously had a preexisting degenerative condition 
 
         in her spine, but it appears that the condition was asymptomatic.  
 
         She fell and then became symptomatic evidencing particular 
 
         symptoms.  A review of Dr. Nelson's notes and claimant's own 
 
         testimony indicates that her back complaints have continued to 
 
         progressively worsen since the fall and even since her brief 
 
         return to work in October, 1985.  It is normally expected that, 
 
         following trauma, some recovery from the injuries will occur.
 
         
 
              Individuals with preexisting degenerative changes in their 
 
         spine are highly subject to injuries which aggravate that 
 
         preexisting condition.  Degenerative conditions generally worsen 
 
         over a period of time without any intervening trauma.  In cases 
 
         such as this, it is difficult to differentiate the extent to 
 
         which the current condition is a result of work-related trauma 
 
         and the extent to which it is the normal progression of the 
 
         degenerative condition.  That question is not, however, currently 
 
         before the undersigned for determination.  It is found that the 
 
         fall of December 17, 1984 is a substantial factor in bringing 
 
         about complaints regarding claimant's low back and left leg and 
 
         the injury of December 17, 1984 is found to have extended into 
 
         claimant's back and left leg by aggravating a preexisting 
 
         degenerative condition in her spine.
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   7
 
         
 
         
 
         
 
              Claimant seeks a running award of healing period.  The 
 
         healing period provided by section 85.34(l) ends when it is 
 
         medically indicated that significant improvement from the injury 
 
         is not anticipated, when the employee returns to work or when the 
 
         employee becomes medically capable of returning to employment 
 
         substantially similar to that in which the employee was engaged 
 
         at the time of injury.  In this case, claimant's return to work 
 
         was not a return to substantially similar employment.  Claimant's 
 
         return was to light duty, part-time work.  It is determined that 
 
         her healing period should be terminated at the point it was
 
         
 
         medically indicated that significant  improvement  from  the  
 
         injury was not anticipated.  Dr. Nelson indicated that such had 
 
         occurred in his office note of October 10, 1985.  A release to 
 
         return to work and an impairment rating are also sometimes used 
 
         as guidelines for determining the end of healing period.  Thomas 
 
         v. William Knutson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 
 
         1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
         App. 1981).  Dr. Neiman has provided treatment to claimant, but 
 
         the treatment does not appear to have produced any significant 
 
         improvement in claimant's condition.  Without surgery, it is not 
 
         expected that her condition will change significantly.  It is 
 
         therefore concluded that the healing period has ended and that it 
 
         ended October 29, 1985 as stipulated by the parties and as 
 
         supported by Dr. Nelson.  A period of disability, such as one 
 
         resulting from surgery, may support an entitlement to further 
 
         healing period in the future, but such issue is not presently 
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   8
 
         
 
         
 
         under determination.  It would be very unusual for the period of 
 
         recovery resulting from an injury of the type claimant suffered 
 
         to extend over a period of years.
 
         
 
              Roy Nelson testified that Dr. Nelson was the only physician 
 
         that had been authorized to treat claimant.  Apparently, the 
 
         employer had not specifically authorized a replacement after Dr. 
 
         Nelson left the Burlington area.  Counsel stipulated that Dr. 
 
         Neiman had been authorized to treat claimant.  In a note 
 
         maintained by Dr. Nelson dated February 18, 1985, he indicates 
 
         that claimant was referred to Dr. McMurray for the possible blood 
 
         clot and lump in her leg.  Defendants contend that claimant's 
 
         medical expenses were unauthorized as they relate to the five 
 
         items for which claimant seeks recovery.  Since defendants have 
 
         denied liability for claimant's back condition, they are not 
 
         entitled to select the care which claimant will receive for that 
 
         condition. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner 
 
         Report, 16 (Appeal Decision 1981).  A referral by an authorized 
 
         physician authorizes treatment by the physician to whom the 
 
         referral is made.  Limoges v. Meier Auto Salvage, I Iowa 
 
         Industrial Commissioner Report, 207 (1981).    The charges from 
 
         Mercy Hospital (exhibit 17) were incurred under the direction of 
 
         Dr. Neiman and are clearly the responsibility of the employer or 
 
         of defendants.  The referral to Dr. Dykstra at the Steindler 
 
         Clinic was also made by Dr. Neiman and is likewise clearly the 
 
         responsibility of defendants (exhibit 18).
 
         
 
              It is difficult to rule upon the medical expense charges 
 
         from Apothecary 24, from Dr. McMurray and from the Burlington 
 
         Medical Center without making some finding with regard to whether 
 
         or not the aggravation of claimant's preexisting degenerative 
 
         spinal condition created any permanency.  The issue which was 
 
         bifurcated was determination of the extent of permanent 
 
         disability and the issue of whether or not some degree of 
 
         permanency existed is not necessarily prohibited from being 
 
         addressed in this decision.  Consistent with the opinion 
 
         expressed by Dr. Neiman
 
         and the claimant's continuing complaints it is found that some 
 
         permanency did exist and that the permanency is a proximate cause 
 
         for the continuing medical treatment.  Accordingly, the treatment 
 
         by Dr. McMurray, including that at Burlington Medical Center, is 
 
         the responsibility of the employer as are the prescriptions at 
 
         Apothecary 24 (exhibits 15, 16 and 19).  Defendants are therefore 
 
         responsible for payment of claimant's medical expenses under 
 
         section 85.27 in the amount of $2,767.23. In accordance with the 
 
         stipulation made by the parties, they are entitled to credit for 
 
         amounts previously paid.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On December 17, 1984, Arlene M. Schubert was a resident 
 
         of the State of Iowa, employed by Burlington Pepsi-Cola Company 
 
         in Burlington, Iowa.
 
         
 
              2.  On December 17, 1984, claimant was injured when a fork 
 
         lift ran over her left foot and knocked her to the ground.  The 
 
         injury produced fractured bones in claimant's foot, caused a 
 
         hematoma on claimant's left hip and aggravated a preexisting 
 
         degenerative condition in claimant's spine.
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page   9
 
         
 
         
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         which she performed at time of injury from December 17, 1984 
 
         until October 29, 1985, when claimant reached the point that it 
 
         was medically indicated that further significant improvement from 
 
         the injury was not anticipated.
 
         
 
              4.  The aggravation of the preexisting condition in 
 
         claimant's back was a substantial factor in bringing about the 
 
         need for the medical treatment which claimant has received 
 
         including that received from Apothecary 24, Harry N. McMurray, 
 
         M.D., Mercy Hospital, Steindler Clinic and Burlington Medical 
 
         Center.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injuries claimant sustained on December 17, 1984 
 
         arose out of and in the course of her employment with Burlington 
 
         Pepsi-Cola Company.
 
         
 
              3.  Claimant's healing period runs from December 17, 1984 
 
         through October 28, 1985, a span of 45 and 1/7 weeks.
 
         
 
              4.  Claimant's injury was an injury to the body as a whole 
 
         and any compensation for permanent partial disability should be 
 
         computed under the provision of section 85.34(2)(u).
 
         
 
              5.  Defendants are responsible for payment of claimant's 
 
         medical expenses under the provision of section 85.27 in the 
 
         amount of $2,767.23.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant forty 
 
         five and one-seventh (45 1/7) weeks of healing period at the rate 
 
         of one hundred seventy-two and 06/100 dollars ($172.06) per week 
 
         commencing December 17, 1984.  Defendants shall receive credit 
 
         for all amounts previously paid in accordance with the 
 
         stipulation of the parties.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         thousand seven hundred sixty-seven and 23/100 dollars ($2,767.23) 
 
         under the provisions of section 85.27 for the following medical 
 
         expenses:
 
         
 
                   Apothecary 24                    $1,795.23
 
                   Harry N. McMurray, M.D.              99.00
 
                   Mercy Hospital                      316.00
 
                   Steindler Clinic                    110.00
 
                   Burlington Medical Center           447.00
 
         
 
         Defendants are entitled to credit for the amounts previously paid 
 
         to Apothecary 24.
 
         
 
              The costs of this proceeding are assessed against 
 

 
         
 
         
 
         
 
         SCHUBERT V. BURLINGTON PEPSI-COLA CO.
 
         Page  10
 
         
 
         
 
              defendants.
 
         
 
         
 
                                        
 
              Signed and filed this 9th day of June, 1987.
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. William Bauer
 
         Attorney at Law
 
         6th Floor, Burlington Building
 
         P.O. Box 517
 
         Burlington, Iowa 52601
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108, 1402.30, 1802,
 
                                            2206, 2501
 
                                            Filed June 9, 1987
 
                                            MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ARLENE M. SCHUBERT,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                 File No. 785314
 
         
 
         BURLINGTON PEPSI-COLA CO.,
 
                                               A R B I T R A T I 0 N
 
               Employer,
 
         and
 
                                                 D E C I S I 0 N
 
         CIGNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1108, 1402.30, 1802, 2206, 2501
 
         
 
              Claimant, a 59 year-old woman at time of hearing, with a 
 
         preexisting degenerative spinal condition, fell and was injured 
 
         at work when a fork lift ran over and crushed her left foot. it 
 
         was found that the injury was not limited to the foot, but also 
 
         included an aggravation of the preexisting condition in her 
 
         spine.   The healing period was ended at the time claimant 
 
         reached maximum medical improvement even though she continued 
 
         under intermittent medical care and even though future surgery is 
 
         a possibility.  The employer was ordered to pay claimant's 
 
         medical expenses 'incurred for treatment of her back condition.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RONALD D. ELDER,
 
         
 
             Claimant,
 
         
 
         VS.
 
                                                       File No. 785496
 
         AMANA REFRIGERATION, INC.,
 
                                                         A P P E A L
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal and claimant cross-appeals from an 
 
         arbitration decision in which claimant was awarded permanent 
 
         partial disability for an industrial disability of 45 percent.  
 
         The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 10; and 
 
         defendants' exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issue on appeal: The 
 
         permanent partial disability rating of 45 percent is too high.
 
         
 
              Claimant states the following issues on cross-appeal: 1) The 
 
         permanent partial disability rating of 45 percent is too low; 2) 
 
         admitting into evidence a "medical report" signed by James 
 
         LaMorgese, M.D., and dated September 4, 1986 was contrary to the 
 
         hearing assignment order; 3) permitting testimony from Shelby 
 
         Swain regarding possible employment opportunities for the 
 
         claimant was prejudicial.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              On January 22, 1985 claimant was injured as he reached to 
 
         move a 10 to 15 pound die.  He reported that his shoulder
 
         Opopped" and he immediately lost the use of his left arm.  He 
 
         has pain in the upper back, low neck, behind his left eye, both 
 

 
         
 
         
 
         
 
         ELDER V. AMANA REFRIGERATION, INC.
 
         Page   2
 
         
 
         
 
         shoulders, and has headaches.  Dr. LaMorgese opined that 
 
         claimant had reached maximum healing potential as of September 
 
         1, 1985 and that claimant had a 10 percent permanent partial 
 
         Odisability" rating due to the work-related injury.  Dr. 
 
         LaMorgese agreed with claimant that he would be unable to 
 
         return to work for defendant, Amana Refrigeration, Inc. 
 
         (hereinafter Amana).  L. C. Strathman, M.D., indicated that it 
 
         would be safe for claimant to return to work but would have to 
 
         do so on a limited status particularly in terms of lifting, 
 
         reaching and repetitive motions.
 
         
 
              At the time of the hearing claimant was 47 years of age 
 
         who had completed tenth grade and obtained a GED while serving 
 
         in the United States Navy.  Claimant has had jobs of test 
 
         technician, owner-operator over-the-road truck driver, a dinner 
 
         club owner-operator, an employed trucker, a maintenance man, a 
 
         carpenter, and a security guard.  Claimant has not sought other 
 
         employment.  He has been self-employed in an automotive engine 
 
         repair business since the late 1970's.  He is unable to do the 
 
         physical work and has hired an employee who does the manual 
 
         labor.  He has purchased items of equipment that help him to be 
 
         able to continue the automotive business.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence and are augmented only as 
 
         necessary to the disposition of this appeal.
 
         
 
              Iowa Rule of Civil Procedure 125, relating to discovery of 
 
         experts, provides in relevant part:
 
         
 
              (1)  A party may through interrogatories require any other 
 
              party to state the name and address of each person whom the 
 
              other party expects to call as an expert witness at trial 
 
              and to state, with reasonable particularity:
 
         
 
                 (A) The subject matter on which the expert is expected to 
 
              testify;
 
                 (B) The designated person's qualifications to testify as 
 
              an expert on such subject; and
 
                 (C) The mental impressions and opinions held by the 
 
              expert and the facts known to the expert (regardless of when 
 
     
 
         
 
         
 
         
 
         
 
         ELDER V. AMANA REFRIGERATION, INC.
 
         Page   3
 
         
 
         
 
              the factual information was acquired) which related to, or 
 
              form the basis of, the mental impressions and opinions held 
 
              by the expert.
 
         
 
                   ....
 
         
 
         
 
         
 
              (C) Duty to supplement discovery as to experts. if a party 
 
              expects to call an expert witness when the identity or the 
 
              subject of such expert witness' testimony has not been 
 
              previously disclosed in response to an appropriate inquiry 
 
              directly addressed to these matters, such response must be 
 
              supplemented to include the information described in 
 
              subdivisions (a)(1)(A)-(C) of this rule, as soon as 
 
              practicable, but in no event less than thirty days prior to 
 
              the beginning of trial except on leave of court. if the 
 
              identity of an expert witness and the information described 
 
              in subdivisions (a)(1)(A)-(C) are not disclosed in 
 
              compliance with this rule, the court in its discretion may 
 
              exclude or limit the testimony of such expert, or make such 
 
              orders in regard to the non-disclosure as are just.
 
         
 
              Exclusion of an expert as a witness is the most severe 
 
         sanction for failure to comply with rule 125.  "Exclusion is 
 
         justified only when prejudice would result."  The purpose of the 
 
         rule "is to avoid surprise to the litigants and to allow the 
 
         parties to formulate their positions on as much evidence as is 
 
         available.O   Lambert v. Sisters of Mercy Health Corp., 369 
 
         N.W.2d 417 (Iowa 1985).  In that case the expert had been 
 
         properly designated and his testimony summarized and the court 
 
         found that there was no surprise nor prejudice.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant contends on appeal that the medical report of Dr. 
 
         LaMorgese dated September 4, 1986 should be excluded because it 
 
         was not served until after the expiration of the 10 day time 
 
         period provided in the hearing assignment order.  That 10 day 
 
         period expired on August 31, 1986.  The evidence in question is a 
 
         medical report and was served on September 8, 1986, eight days 
 
         prior to the hearing date.  The industrial commissioner's file 
 
         indicates in the pretrial conference notes dated August 19, 1986 
 
         that both claimant and defendants reported that all medical 
 
         reports had been received and exchanged.  The file also contains 
 
         the hearing assignment order dated August 21, 1986 which states 
 
         in relevant part:
 
         
 
              6.  Witness and Exhibit Lists.  A list of all witnesses to 
 
              be called at the hearing and a list of all proposed exhibits 
 
              to be offered into the evidence at the hearing along with 
 
              copies of all written exhibits not previously served shall 
 
              be served upon opposing parties no later than ten (10) days 
 
              following the signing and filing of this order.  Only those 
 
              witnesses listed will be permitted to testify at the hearing 
 
              unless their testimony is clearly rebuttal or sur-rebuttal.  
 
              Medical
 
         
 
         
 

 
         
 
         
 
         
 
         ELDER V. AMANA REFRIGERATION, INC.
 
         Page   4
 
         
 
         
 
              records, practitioners reports and all other written 
 
              evidence shall not be admitted as exhibits at the hearing 
 
              .unless they have been timely served upon an opposing party 
 
              as ordered herein. (Emphasis in original)
 
         
 
              Exhibit A was not served until September 8, 1986 which was 
 
         beyond the time specified in the order.  The deputy erred in 
 
         allowing the evidence.  The defendants did not comply with the 
 
         hearing assignment order and Exhibit A cannot be admitted.
 
         
 
              Claimant also contends on appeal that permitting certain 
 
         testimony of Shelby Swain was prejudicial because defendants had 
 
         failed to disclose these opinions in response to claimant's 
 
         discovery requests.  The instant case is like Lambert, supra, in 
 
         that the defendants had disclosed the name of t e expert and his 
 
         testimony was summarized.  It was disclosed that Swain would 
 
         testify about his efforts to rehabilitate claimant and would also 
 
         testify about the Kirkwood Community College electronics program 
 
         referred to in a progress report dated January 24, 1986.  That 
 
         report clearly referred to placement of Kirkwood students at 
 
         Clyde Industries.  The fact that Swain would testify to 
 
         employment opportunities such as Clyde Industries should not have 
 
         come as a surprise to claimant.  Claimant was not prejudiced by 
 
         allowing this testimony.  The deputy correctly overruled 
 
         claimant's objection.  The claimant appears to have abandoned the 
 
         hearsay objection on appeal, nevertheless, the deputy correctly 
 
         overruled the objection relying upon Iowa Code section 17A.14.
 
         
 
              Claimant has an impairment of 10 percent to his body as a 
 
         result of his injury with defendant employer.  However, 
 
         impairment is only one of the factors used in determining a 
 
         person's industrial disability.  The evidence reveals that Dr. 
 
         LaMorgese advised the defendant employer that claimant could not 
 
         return to work because of claimant's personal belief that he 
 
         could not handle the work.  Dr. Strathman opined that it would be 
 
         in claimant's best interest to return to work and Jack P. 
 
         Whisnant, M.D., advised claimant to increase his activities.  It 
 
         would appear that claimant's perception of what he could do 
 
         played a big part in defendant employer's determination of 
 
         claimant's unemployability and physical inability to do factory 
 
         work as opposed to what claimant's restrictions really are.  As 
 
         the deputy stated:
 
         
 
              Claimant is, however, a middle aged worker who is now 
 
              precluded from performing much of the work he has performed 
 
              in the past.  His physical condition is such that even work 
 
              which he might be able to perform must allow him greater 
 
              flexibility and maneuverability than a non-injured worker 
 
              would need.  Hence, claimant's employment options in this 
 
              regard are limited for this reason as well.  On the other 
 
              hand, claimant's motivation is lacking in that claimant 
 
              appears only willing to explore those options which 
 
              immediately appeal to him and not those which may have more 
 
              long term benefit to him.  As Mr. Swain stated, claimant is 
 
              motivated to work on his automotive business but not to seek 
 
              retraining.  Claimant is also not interested in exploring 
 
              new job opportunities.  Claimant's personal choices also, 
 
              therefore, limit his employment options--a fact also to be 
 
              considered in assessing claimant's industrial loss.
 

 
         
 
         
 
         
 
         ELDER V. AMANA REFRIGERATION, INC.
 
         Page   5
 
         
 
         
 
         
 
              When all factors are considered, claimant has sustained an 
 
         industrial disability of 35 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 49 years old.
 
         
 
              2.  Claimant has a mild to moderate permanent partial 
 
         impairment to the body as a whole as a result of neck, shoulder, 
 
         and arm pain and numbness and loss of strength in the upper 
 
         extremities.
 
         
 
              3.  Claimant has obtained training in electronics 
 
         technology, nuclear power technology, and electrical typewriter 
 
         repair in the navy.
 
         
 
              4.  Claimant attended but did not complete a machinist 
 
         course.
 
         
 
              5.  Claimant has worked as an electronics test technician, a 
 
         truck driver, a trucker owner-operator, a restaurant owner 
 
         operator, a maintenance worker, a carpenter, a security guard, a 
 
         machinist, and a toolmaker.
 
         
 
              6.  Claimant worked as a toolmaker at Amana Refrigeration 
 
         when injured.
 
         
 
              7.  Claimant was terminated for inability to perform factory 
 
         work on October 29, 1985.
 
         
 
              8.  Claimant is not motivated to seek retraining through 
 
         course work or through new employment avenues.
 
         
 
              9.  Claimant is motivated to continue his preinjury 
 
         automotive repair business and has hired help with the physical 
 
         labor required in that business.
 
         
 
             10.  Claimant is intellectually capable.
 
         
 
             11.  Claimant has past entrepreneurial experience.
 
         
 
         
 
         
 
             12.  Claimant has physical restrictions on lifting and 
 
         physical activity of itself increases his pain.
 
         
 
              13.  Claimant's automotive repair business is a realistic 
 
         employment goal for claimant.
 
         
 
              14.  There are jobs in well-known branches of the labor 
 
         market which claimant could perform.
 
         
 
              15.  Claimant is not an odd-lot worker.
 
         
 
              16.  Claimant left work on account of his injury on February 
 
         20, 1985.
 
         
 
              17.  Claimant reached maximum medical healing as of 
 

 
         
 
         
 
         
 
         ELDER V. AMANA REFRIGERATION, INC.
 
         Page   6
 
         
 
         
 
         September 1, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his January 22, 1985 injury of 35 percent.
 
         
 
              Defendants received credit for benefits previously paid.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         February 20, 1985 to September 1, 1985 all of which defendants 
 
         have paid.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and modified in part.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits for one hundred seventy-five (175) weeks at the rate of 
 
         two hundred seventy-six and 48/100 dollars ($276.48).
 
         
 
              That defendants receive credit for benefits previously paid 
 
         to claimant.
 
         
 
              That defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 31st day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 Second Avenue SE
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Ralph W. Gearhart
 
         Attorney at Law
 
         500 MNB Building
 

 
         
 
         
 
         
 
         ELDER V. AMANA REFRIGERATION, INC.
 
         Page   7
 
         
 
         
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803 - 4100
 
                                                Filed December 31, 1987
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RONALD D. ELDER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                       File No. 785496
 
         
 
         AMANA REFRIGERATION, INC.,
 
                                                         A P P E A L
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Injury to claimant's neck, shoulder and arm resulted in 35 
 
         percent permanent partial disability.
 
         
 
         4100
 
         
 
              Claimant was not an odd-lot worker.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DUAINE A. BRADEN,
 
        
 
           Claimant,
 
                                          File No. 785744
 
        vs.
 
                                          A P P E A L
 
        BIG "W" WELDING SERVICE,
 
           Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        UNDERWRITERS ADJUSTING CO.,
 
        
 
           Insurance Carrier,
 
        
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA,
 
        
 
           Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an alleged injury on 
 
        January 17, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        proceeding; claimant's exhibits A, B and C; and defendant Second 
 
        Injury Fund of Iowa's exhibits 1 and 2.
 
        
 
        Both parties filed briefs on appeal. Defendant Second Injury Fund 
 
        of Iowa filed a response to claimant's brief.
 
        
 
                                      ISSUES
 
        
 
        Defendant Second Injury Fund of Iowa states the following issues 
 
        on appeal:
 
        
 
        1. The deputy erred by failing to find that claimant was not a 
 
        credible witness.
 
        
 
        2. The deputy erred in finding that the second injury fund was 
 
        liable to the claimant.
 
        
 
        3. The deputy erred in awarding a lump sum with statutory 
 
        interest from April 11, 1987.
 
        
 
        BRADEN V. BIG "W" WELDING SERVICE
 
        Page .2
 
        
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence.
 

 
        
 
 
 
 
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
        In addition, the Second Injury Fund of Iowa has raised as an 
 
        issue on appeal whether the second injury fund can be ordered to 
 
        pay interest on unpaid compensation payments. An employer may be 
 
        ordered to pay interest on unpaid compensation pursuant to Iowa 
 
        Code section 85.30. Sections 85.63 through 85.69 are titled 
 
        "Second Injury Compensation Act." Those sections do not 
 
        specifically authorize interest on unpaid compensation from the 
 
        second injury fund.
 
        
 
        In addition, the second injury fund stands in a position 
 
        different from an employer in a workers' compensation case. An 
 
        employer has knowledge of the injury fairly soon after it occurs, 
 
        whereas the second injury fund may not know of the claimant's 
 
        injury until a substantial period of time has elapsed. The 
 
        employer is in a position to investigate the injury and 
 
        ascertain, at an early point in time, the compensability of the 
 
        injury. The second injury fund is not able to conduct such an 
 
        investigation. An employer has some degree of control over the 
 
        length of time the case takes to be resolved, whereas the second 
 
        injury fund has less control over the proceedings. Section 85.66 
 
        of the Code states that money from the second injury fund cannot 
 
        be disbursed except upon written order of the industrial 
 
        commissioner. Thus, whereas an employer has the capacity to 
 
        settle a claim before a contested case proceeding is instituted, 
 
        the second injury fund is not able to resolve a case without 
 
        involvement of the industrial commissioner after a petition has 
 
        been filed. This necessarily contemplates a time lapse which 
 
        would unfairly subject the fund to interest on compensation it 
 
        could not have paid earlier. The second injury fund will not be 
 
        ordered to pay interest on the unpaid compensation, but will be 
 
        required to pay any amounts Fast
 
        due in a lump sum.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant sustained a work injury on October 13, 1980 to his 
 
        left knee resulting in a 20 percent impairment to the lower left 
 
        extremity for which claimant was paid 44 weeks of benefits.
 
        
 
        2. Claimant, subsequent to this injury, was able to return to 
 
        work in his usual occupation although he favored his left
 
        
 
        BRADEN V. BIG "W" WELDING SERVICE
 
        Page 3
 
        
 
        
 
        leg and relied on his right leg for additional support.
 
        
 
        3. Claimant continues to have difficulty with his left knee.
 
        
 
        4. Claimant sustained a work injury January 17, 1985, to his 
 
        right knee resulting in a 20 percent impairment to the lower 
 
        right extremity for which he was paid 44 weeks of permanent 
 
        partial disability benefits.
 
        
 
        5. Claimant has worked for the past 22 years as a millwright 
 
        which requires physical exertion including climbing, lifting, 
 
        bending, stooping, squatting, walking, working an entire shift on 
 
        his feet, and additional manual labor.
 
        
 

 
        
 
 
 
 
 
        6. Claimant's work restrictions preclude him from engaging in his 
 
        usual occupation as a result of his injuries.
 
        
 
        7. Claimant has limited ability to stand, walk, climb, lift, and 
 
        his knees are stiff, sore, painful, weak and cause him to fall 
 
        down.
 
        
 
        8. Claimant is 45 years old with a ninth grade education and has 
 
        not yet acquired a GED.
 
        
 
        9. Claimant has been unsuccessful in his attempts to secure work 
 
        and has not worked since his last injury on January 17, 1985.
 
        
 
        10. Claimant is currently enrolled at Indian Hills Community 
 
        College and is working toward employment as a parole officer.
 
        
 
        11. Serious questions exist as to whether or not claimant has the 
 
        capability of reaching his goal.
 
        
 
        12. Claimant's capacity to earn has been hampered as a result of 
 
        the combined effects of the injuries of 1980 and 1985.
 
        
 
        13. Claimant has sustained an industrial disability as a result 
 
        of the combined effects of the two injuries.
 
        
 
        14. The present condition of the claimant as a result of the 
 
        combined permanent partial disabilities to the right and left 
 
        lower extremities results in a loss of earning capacity of 60 
 
        percent to the body as a whole.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        The compensable value of the permanent injury to the left lower 
 
        extremity is 44 weeks.
 
        
 
        The compensable value of the permanent injury to the right lower 
 
        extremity is 44 weeks.
 
        
 
        BRADEN V. BIG "W" WELDING SERVICE Page 4
 
        
 
        
 
        Claimant has established an overall industrial disability as a 
 
        result of the combined effects of both permanent injuries as 60 
 
        percent or 300 weeks of permanent partial disability benefits.
 
        
 
        The obligation of the second injury fund is 212 weeks of 
 
        permanent partial disability benefits.
 
        
 
        The obligation of the second injury fund commences April 11, 
 
        1987.
 
        
 
        The second injury fund is not required to pay interest on unpaid 
 
        compensation.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That the Second Injury Fund of Iowa pay to claimant two hundred 
 
        twelve (212) weeks of permanent partial disability benefits 
 
        commencing April 11, 1987 at the stipulated rate of two hundred 
 
        sixty-eight and 83/100 dollars ($268.83).
 
        
 
        That accrued payments are to be paid in a lump sum.
 

 
        
 
 
 
 
 
        
 
        That the Second Injury Fund of Iowa pay the costs of this action, 
 
        including the costs of the transcription of the hearing 
 
        proceeding.
 
        
 
        Signed and filed this 28th day of October,1988
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DUAINE A. BRADEN,
 
         
 
              Claimant,
 
                                                   File No. 785744
 
         vs.
 
         
 
         BIG "W" WELDING SERVICE,               A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         UNDERWRITERS ADJUSTING CO.,                  F I L E D
 
         
 
              Insurance Carrier,                     MAY 18 1988
 
         and
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Duaine A. 
 
         Braden, claimant, against Big "W" Welding Service, employer, 
 
         Underwriters Adjusting Co., insurance carrier, and Second Injury 
 
         Fund of Iowa, defendants, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of injuries sustained 
 
         October 13, 1980 and January 18, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         March 17, 1988.  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 A, B and C and 
 
         Second Injury Fund's exhibits 1 and 2; and the claim activity 
 
         report dated October 5, 1987.
 
         
 
                                      ISSUES
 
         
 
              The essential issues presented for resolution are:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits for an industrial disability, if any; 
 
         and,
 
         
 
              2.  The liability of the second injury fund.
 
         
 
                                FACTS PRESENTED
 
         
 
              Claimant, age 45, testified that he attended high school to 
 
         his freshman year and quit thereafter because he did not get 
 
         along, did not like school and was a below average student.  He 
 
                                                
 
                                                         
 
         thereafter went into the army where he had problems getting along 
 
         and received a general discharge under honorable conditions after 
 
         nine months.  He explained when he returned home he broke into a 
 
         store to get beer and was sent to the prison at Anamosa for two 
 
         years.  Claimant testified that since his release from prison he 
 
         has worked as a grinder/wiper, welder, and principally as a 
 
         millwright for the last 22 years.
 
         
 
              Claimant sustained an on-the-job injury October 13, 1980 
 
         when he fell on his left knee when conduit gave way while he was 
 
         employed at Combustion Engineering earning $11.35 per hour. 
 
         Claimant received healing period benefits, then permanent partial 
 
         disability benefits for 44 weeks based on a 20 percent impairment 
 
         rating.  Claimant explained he continues to have problems with 
 
         his left knee as it swells and is "sore all the time."  Claimant 
 
         testified that after this injury he returned to work for the Clow 
 
         Corporation in Oskaloosa as a sand technician where he stood at a 
 
         machine and did no lifting.  Claimant then went to work for 
 
         defendant employer as a mechanic which he described as the same 
 
         type of work as a millwright at a beginning wage of $9.00 per 
 
         hour.  Claimant sustained an injury arising out of and in the 
 
         course of his employment January 17, 1985, when, while walking 
 
         with his foreman, he fell on ice landing on his right knee. 
 
         Claimant again received healing period benefits and permanent 
 
         partial disability benefits for 44 weeks based on a 20 percent 
 
         impairment rating of the lower right extremity.
 
         
 
              Claimant explained he was released to return to work June 5, 
 
         1986 and thereafter filed for unemployment insurance benefits 
 
         receiving the maximum benefits allowed.  Claimant acknowledged he 
 
         has not worked since the day of his last injury and although he 
 
         has looked for work as required by job service rules, he has 
 
         gotten neither a job offer nor a job.  Claimant is currently in 
 
         his third term at Indian Hills Community College where he is 
 
         pursuing a course of study in the hope of becoming a parole 
 
         officer and in the hope of acquiring his GED degree.  Claimant 
 
         testified both knees continue to bother him in that they are 
 
         sore, stiff, painful, weak, and cause him to fall down.  Claimant 
 
         estimated his ability to stand at ten minutes, his ability to 
 
         walk at not over two blocks without swelling and soreness and 
 
         that he cannot run, climb (without pain), jump or lift.  Claimant 
 
         could think of no jobs he is currently qualified to do.
 
         
 
              Claimant was first seen November 26, 1985, by William R. 
 
         Boulden, M.D., of Central Iowa Orthopedics, whose initial 
 
         impression was medial compartmental arthritis and who recommended 
 
         a high tibial valgus osteotomy.  Dr. Boulden recommended claimant 
 
         not return back to work because he did not think, even if the 
 
         osteotomy was successful, it would handle the daily stress that 
 
         claimant would give it by his old occupation.  Dr. Boulden did 
 
         not, however, go ahead with the osteotomy because arthroscopy 
 
         examination revealed significant degeneration was already 
 
         occurring.  On June 3, 1986, Dr. Boulden stated:  "As I stated 
 
         earlier, I feel that we need to find him work where he is off his 
 
         feet and/or basically sedentary type work."  (Claimant's Exhibit 
 
                                                
 
                                                         
 
         A, part 1, page 3)  Dr. Boulden opined claimant had a 20 percent 
 
         impairment of the knee and stated:
 
         
 
                   It is my feeling that some day Duaine Braden will need 
 
              a total knee replacement, but obviously, at this point in 
 
              time, he is in no need of such an operation.
 
         
 
                   Therefore, it also is my opinion that the injury that 
 
              he sustained on January 18, 1985 was an underlying trauma to 
 
              his knee and whether it caused all of the damage or just 
 
              aggravated it further is unknown to me, since I did not have 
 
              the opportunity to do the first surgery.
 
         
 
                   Therefore, I feel that Dr. Brindley can give you more 
 
              of an insight to that as he was the treating primary 
 
              physician.
 
         
 
         (Cl. Ex. A, Pt. 1, p. 4)
 
         
 
              Medical records of Jack W. Brindley, M.D., showed that after 
 
         claimant's fall on October 13, 1980, claimant had an arthrogram 
 
         which showed a tear in the medical capsule.  The medical 
 
         collateral ligament was found to be intact but claimant was also 
 
         found to have a tear in his medical meniscus posteriorally which 
 
         was removed.  Claimant was also noted to have some degenerative 
 
         changes in the joints.  Arthroscopy examination of the left knee 
 
         on March 10, 1982 confirmed the degenerative arthritic changes. 
 
         Dr. Brindley found claimant's impairment to the left leg to be 20 
 
         percent and stated he felt claimant should stay away from work 
 
         that has to do with a great deal of stair climbing, squatting, 
 
         standing or walking constantly.  Dr. Brindley again treated 
 
         claimant after his fall in January 1985.  A right knee 
 
         arthroscopy was done and Dr. Brindley noted some synovitis in the 
 
         knee as well as a great deal of chondromalacia and degenerative 
 
         change.  On November 15, 1985, Dr. Brindley wrote:
 
         
 
              [T]his patient has been treated for an injury that he 
 
              sustained in January of 1984....I had seen him before the 
 
              other problems but had not ever treated him for right knee 
 
              pain.  He does have arthritis of the knee which is what is 
 
              causing him difficulty but he was asymptomatic as far as I 
 
              know up until his injury in January of 1984.
 
         
 
                   I do not feel that this patient is going to be able to 
 
              return to work at the type of work that he was previously 
 
              doing.
 
         
 
                   I do think that there is a permanency rating for his 
 
              right knee.  I would rate his percent of permanent physical 
 
              impairment and loss of physical function to his lower 
 
              extremity at 20%.
 
         
 
         (Cl. Ex. A, pt. 2, p. 41)
 
         
 
              Dr. Brindley later corrected himself stating:
 
                                                
 
                                                         
 
         
 
                   There is a mistake in my letter to you of November 15, 
 
              1985.  The patient fell while at work on January 17, 
 
              1985....I feel that the patient was asymptomatic prior to 
 
              his fall.  I doubt if all of the degenerative changes in his 
 
              knee are secondary to the fall but I do feel that he was not 
 
              symptomatic until he did fall.  The fall was what disables 
 
              him from doing the work that he used to be able to do.
 
         
 
         (Cl. Ex. A, pt. 2, p. 42)
 
         
 
              The Career Assessment Report of Pat MacLean, vocational 
 
         counselor, dated December 1, 1986, reveals claimant's test 
 
         results:
 
         
 
              Differential Aptitude Tests  (DAT):  using high
 
              school senior norms
 
         
 
                   Verbal Reasoning                 15 percentile
 
                   Numerical Ability                20 percentile
 
                   VR + NA                          15 percentile
 
                   (overall scholastic aptitude)
 
                   Abstract  Reasoning              25 percentile
 
                   Clerical Speed & Accuracy        Absent
 
                   Mechanical Reasoning             50 percentile
 
 
 
                                
 
                                                
 
                                                         
 
                   Space Relations                  65 percentile
 
                   Spelling                         75 percentile
 
                   Language Usage                   65 percentile
 
         
 
              Tests of Adult Basic Education (TABE)
 
         
 
                   Reading:
 
         
 
                      Vocabulary                    10.7 grade level
 
                      Comprehension                 12.0 grade level
 
                      Total Score                   11.4 grade level
 
                      (71 items correct out of 85)
 
         
 
                   Math:
 
          
 
                      Computation                   10.0 grade level
 
                      Concepts & Problems           10.4 grade level
 
                      Total Score                   10.2 grade level
 
                      (73 items correct out of 98)
 
          
 
              Wide Range Achievement Test (untimed)
 
         
 
                  Math                                 9.3 grade level
 
         
 
         (Cl. Ex. C)
 
         
 
              MacLean stated claimant did not fully comprehend the amount 
 
         of education needed to prepare for jobs like a parole officer and 
 
         opined claimant has the aptitude to successfully complete a 
 
         mechanical drafting program.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.64 provides, in part:
 
         
 
                   If an employee who has previously lost, or lost the use 
 
              of, one hand, one arm, one foot, one leg, or one eye, 
 
              becomes permanently disabled by a compensable injury which 
 
              has resulted in the loss of or loss of use of another such 
 
              member or organ, the employer shall be liable only for the 
 
              degree of disability which would have resulted from the 
 
              latter injury if there had been no pre-existing disability, 
 
               In addition to such compensation, and after the expiration 
 
              of the full period provided by law for the payments thereof 
 
              by the employer, the employee shall be paid out of the 
 
              "Second Injury Fund" created by this division the remainder 
 
              of such compensation as would be payable for the degree of 
 
              permanent disability involved after first deducting from 
 
              such remainder the compensable value of the previously lost 
 
              member or organ.
 
         
 
              Claimant clearly sustained injuries which arose out of and 
 
         in the course of his employment on October 13, 1980, when he fell 
 
         on his left knee and on January 17, 1985, when he fell on his 
 
         right knee.  Although defendant Second Injury Fund disputes the 
 
                                                
 
                                                         
 
         work injury of January 17, 1985 is the cause of claimant's 
 
         disability, ample medical and lay evidence exists on the record 
 
         which supports claimant on the issue of causal connection.  Dr. 
 
         Brindley, claimant's treating physician, acknowledges claimant's 
 
         degenerative changes but that claimant was asymptomatic until the 
 
         fall.  Dr. Boulden opines the fall in January 1985 caused either 
 
         all the damage or further aggravation of the preexisting 
 
         condition.  The operative question here, as defendant Second 
 
         Injury Fund states, is whether there is fund liability.
 
         
 
              Under Iowa Code sections 85.63 through 85.69, three 
 
         requirements must be met in order to establish fund liability: 
 
         First, claimant must have previously lost or lost the use of a 
 
         hand, an arm, a foot, a leg or an eye; second, through another 
 
         compensable injury, claimant must sustain another loss or loss of 
 
         use of another member; and third, permanent disability must exist 
 
         as to both injuries.  As appropriately argued by defendant 
 
         employer, if the second injury is limited to a scheduled member, 
 
         then the employer's liability is limited to the schedule and the 
 
         fund is responsible for the excess industrial disability over 
 
         the, combined scheduled losses of the the first and second 
 
         injuries. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983) and Fulton v. Jimmy Dean Meat Company, file number 755039, 
 
         appeal decision filed January 28, 1986.
 
         
 
              Claimant has established a loss of use of his left leg as a 
 
         result of the work-related fall on October 13, 1980.  Claimant 
 
         was found to have a 20 percent permanent partial impairment and 
 
         testified that after returning to work he favored this leg and 
 
         relied on his right leg for support.  Claimant has also 
 
         established a loss of use of his right leg as a result of the 
 
         work-related fall on January 17, 1985.  Again, claimant was found 
 
         to have a 20 percent permanent partial impairment of the lower 
 
         right extremity by Dr. Brindley and a 20 percent of the knee by 
 
         Dr. Boulden.  Both injuries resulted in loss to a scheduled 
 
         member and claimant was paid permanent partial disability 
 
         benefits each time of 44 weeks based on these ratings.  
 
         Therefore, these opinions are sufficient to demonstrate permanent 
 
         disability under Iowa Code section 85.34(2)(o).
 
         
 
              Accordingly, the liability of the second injury fund has 
 
         been established.  Clearly, after the first injury claimant was 
 
         capable of returning to his regular employment having been 
 
         released by Dr. Brindley to return to work without restrictions.  
 
         However, claimant was clearly advised he could not return to his 
 
         regular occupation after the second injury.  Claimant's present 
 
         condition involves the combined effects of the first and second 
 
         injury scheduled losses and therefore it results in an industrial 
 
         disability to the body as a whole.
 
         
 
              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 or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              Claimant is 45 years old with a ninth grade education and no 
 
         other completed formal training.  Claimant's test scores show he 
 
         was "indifferent" to more than 30 percent of the career 
 
         assessment inventory items giving him many scores in the 
 
         mid-range.  Claimant has earned his living primarily doing heavy 
 
         labor work as a journeyman millwright, requiring lifting, 
 
         bending, stooping, climbing, walking and in general being on his 
 
         feet throughout the course of his shift.  Since his second 
 
                                                
 
                                                         
 
         injury, claimant has clearly been precluded from returning to 
 
         this class of work.  Both Dr. Brindley and Dr. Boulden conclude 
 
         claimant is not capable of returning to employment that would 
 
         require such physical exertion and both recommended sedentary 
 
         work.  Because of the combined effects of injuries, claimant no 
 
         longer has available to him the type of work in which he has 
 
         earned his living for over 20 years. Claimant is currently 
 
         attending Indian Hills Community College and is working toward a 
 
         goal of becoming a parole officer.  While it is believed 
 
         vocational rehabilitation is probably claimant's best alternative 
 
         and his ambitions are admirable, one wonders if such goals are 
 
         realistic in light of claimant's failure to as yet complete a GED 
 
         program.  Further, a review of claimant's general scholastic 
 
         aptitude leads to serious questions of claimant's capability, 
 
         overall, to complete the amount of education necessary to reach 
 
         this goal.  However, claimant's motivation appears to be sincere 
 
         and well placed.  Without some type of vocational training, 
 
         claimant cannot think of any jobs for which he is currently 
 
         qualified.  Claimant does appear, however, to have some 
 
         transferable skills, due to, if for no other reasons, his 
 
         mechanical background as a millwright.  Testimony establishes 
 
         claimant had earnings of approximately $20,000 in 1984 and 
 
         $11,500 in 1983.  Claimant has not been employed since his last 
 
         injury on January 17, 1985.  Claimant's capacity to earn has 
 
         clearly been hampered as a result of his injuries.
 
         
 
              Defendant Second Injury Fund went to great lengths in 
 
         questioning claimant on his job searches as shown by job service 
 
         records asserting claimant was not sincere in his search for work 
 
         as the records did not show claimant was seeking work for which 
 
         he was qualified and capable.  While counsel may have made a good 
 
         case for job service fraud, claimant has not been restricted from 
 
         performing some type of work and cannot be faulted (under the 
 
 
 
                          
 
                                                         
 
         Iowa Workers' Compensation Act) for continuing to look for that 
 
         work from which he has always made his living.  As previously 
 
         stated, while claimant has lost his ability to do the.heavy labor 
 
         of a millwright, he has not lost his knowledge of how the job is 
 
         performed.  Considering then all the elements of industrial 
 
         disability, it is found claimant has, as a result of his 
 
         injuries, sustained a permanent partial disability for industrial 
 
         purposes of 60 percent or 300 benefit weeks.  As already noted, 
 
         claimant's second injury was limited to a scheduled member having 
 
         been found to be a permanent partial disability of 20 percent of 
 
         the lower right extremity entitling claimant to 44 weeks of 
 
         benefits. Further, claimant's first injury also represented a 
 
         permanent partial disability of 20 percent to the left lower 
 
         extremity entitling claimant to 44 weeks of benefits.  Pursuant 
 
         to the industrial commissioner's decision in Fulton, supra, the 
 
         liability of the employer is limited to 20 percent of the lower 
 
         right extremity or 44 weeks of benefits which have already been 
 
         paid. The second injury fund is therefore liable for 212 weeks of 
 
         benefits, the amount remaining after deducting the benefits 
 
         already paid (300 weeks minus 44 weeks for the 1980 injury minus 
 
         44 weeks for the 1985 injury).
 
         
 
                                FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant sustained a work injury on October 13, 1980 to 
 
         his left knee resulting in a 20 percent impairment to the lower 
 
         left extremity for which claimant was paid 44 weeks of benefits.
 
         
 
              2.  Claimant, subsequent to this injury, was able to return 
 
         to work in his usual occupation although he favored his left leg 
 
         and relied on his right leg for additional support.
 
         
 
              3.  Claimant continues to have difficulty with his left 
 
         knee.
 
         
 
              4.  Claimant sustained a work injury January 17, 1985, to 
 
         his right knee resulting in a 20 percent impairment to the lower 
 
         right extremity for which he was paid 44 weeks of permanent 
 
         partial disability benefits.
 
         
 
              5.  Claimant has worked for the past 22 years as a 
 
         millwright which requires physical exertion including climbing, 
 
         lifting, bending, stooping, squatting, walking, working an entire 
 
         shift on his feet, and additional manual labor.
 
         
 
              6.  Claimant's work restrictions preclude him from engaging 
 
         in his usual occupation as a result of his injuries.
 
         
 
              7.  Claimant has limited ability to stand, walk, climb, 
 
         lift, and his knees are stiff, sore, painful, weak and cause him 
 
         to fall down.
 
         
 
                                                
 
                                                         
 
              8.  Claimant is 45 years old with a ninth grade education 
 
         and has not yet acquired a GED.
 
         
 
              9.  Claimant has been unsuccessful in his attempts to secure 
 
         work and has not worked since his last injury on January 17, 
 
         1985.
 
         
 
              10.  Claimant is currently enrolled at Indian Hills 
 
         Community College and is working toward employment as a parole 
 
         officer.
 
         
 
              11.  Serious questions exist as to whether or not claimant 
 
         has the capability of reaching his goal.
 
         
 
              12.  Claimant's capacity to earn has been hampered as a 
 
         result of the combined effects of the injuries of 1980 and 1985.
 
         
 
              13.  Claimant has sustained an industrial disability as a 
 
         result of the combined effects of the two injuries.
 
         
 
              14.  The present condition of the claimant as a result of 
 
         the combined permanent partial disabilities to the right and left 
 
         lower extremities results in an industrial disability of 60 
 
         percent to the body as a whole.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  The compensable value of the permanent injury to the 
 
         left lower extremity is 44 weeks.
 
         
 
              2.  The compensable value of the permanent injury to the 
 
         right lower extremity is 44 weeks.
 
         
 
              3.  Claimant has established an overall industrial 
 
         disability as a result of the combined effects of both permanent 
 
         injuries as 60 percent or 300 weeks of permanent partial 
 
         disability benefits.
 
              4.  The obligation of the second injury fund is 212 weeks of 
 
         permanent partial disability benefits.
 
         
 
              5.  The obligation of the second injury fund commences April 
 
         11, 1987.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That the Second Injury Fund of Iowa pay to claimant two 
 
         hundred twelve (212) weeks of permanent partial disability 
 
         benefits commencing April 11, 1987 at the stipulated rate of two 
 
         hundred sixty-eight and 83/100 dollars ($268.83).
 
         
 
                                                
 
                                                         
 
              That accrued payments are to be paid in a lump sum together 
 
         with statutory interest thereon pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the Second Injury Fund of Iowa pay costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as required by 
 
         the division.
 
         
 
              Signed and filed this 18th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa  52577
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3202
 
                                            Filed May 18, 1988
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DUAINE A. BRADEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 785744
 
         BIG "W" WELDING SERVICE,
 
         
 
              Employer,                            A R B I T R A T I O N
 
         
 
         and                                          D E C I S I O N
 
         
 
         UNDERWRITERS ADJUSTING CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         3202
 
         
 
              Second Injury Fund case where claimant established loss of 
 
         use of first and second member and permanent disability from 
 
         each. Sixty percent permanent partial disability benefits awarded 
 
         with second injury fund liable for 212 weeks.
 
 
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL WEINZWEIG,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 785837
 
            WEINZWEIG FOOD PRODUCTS, INC.,:
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.  The decision of the 
 
            deputy filed January 18, 1990, is affirmed and is adopted as 
 
            the final agency action in this case, with the following 
 
            additional analysis:
 
            
 
                 As the deputy stated, claimant suffered his infarction 
 
            while lifting approximately 90 pounds, the first lifting he 
 
            had done that day.  The deputy considered a lift of that 
 
            weight to be close to borderline of what is unusual to the 
 
            average person, but still over the line; that is to say, the 
 
            lift was sufficiently "unusual" to constitute an exertion 
 
            greater than that of nonemployment life of the employee or 
 
            any other person.
 
            
 
                 By way of further analysis, it is noted that whether an 
 
            exertion is unusual is relative to the overall 
 
            characteristics of the individual exclusive of the fact that 
 
            the individual has a preexisting diseased heart.  Claimant 
 
            was a 43-year-old male on December 10, 1984.  His height is 
 
            variously described as five feet eleven inches and five feet 
 
            seven inches.  His weight is described as 165 pounds on 
 
            February 1, 1985; 154 pounds on September 14, 1987; and, 153 
 
            pounds on October 27, 1987.  Medical reports in evidence 
 
            from December 10, 1984 to on or about February 1, 1985 do 
 
            not reflect either a substantial weight loss or gain 
 
            immediate subsequent to claimant's December 10, 1984 
 
            infarction.  It is reasonable to assume that claimant's 
 
            physicians would have noted any substantial change.  It then 
 
            can fairly be stated that claimant weighed approximately 165 
 
            pounds on December 10, 1984.  Claimant's lifting and 
 
            carrying of a weight of 90 pounds on that date then would 
 
            have represented a lifting and carrying of approximately 54 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            percent of his body weight.  Persons do not generally lift 
 
            and carry weights of one-half or more than one-half of their 
 
            body weight in the routine course of their nonemployment 
 
            life.  The carrying of that amount of weight, regardless of 
 
            the actual numerical poundage, would constitute an unusual 
 
            exertion for an employee or any other person.
 
            
 
                 Therefore, even if 90 pounds might be close to a 
 
            borderline, were some concrete standard possible, it 
 
            certainly represents an unusual exertion when it exceeds 50 
 
            percent of that individual's body weight.
 
            
 
                 Defendants shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                                 BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            Mr. John M. Bickel
 
            Mr. Ralph W. Gearhart
 
            Attorneys at Law
 
            500 Firstar Bank Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107