Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLARD L. FORD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 797784
 
            NICHOLS HOMESHIELD, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Willard 
 
            L. Ford against Nichols Homeshield, Inc., his former 
 
            employer, and the Home Insurance Company based upon an 
 
            injury that occurred on May 8, 1985.  It was stipulated that 
 
            Willard has been paid all weekly compensation for healing 
 
            period and permanent partial disability which he is entitled 
 
            to receive on account of the scheduled injury to his leg.  
 
            It was further stipulated and agreed that the defendants 
 
            would pay claimant $4,752.48 in temporary partial disability 
 
            compensation.  The only issue to be determined is whether 
 
            Willard is entitled to receive additional weekly benefits 
 
            based upon his inability to resume full-time work following 
 
            the end of his healing period, which date was stipulated to 
 
            be July 2, 1989.
 
            
 
                 The case was heard at Davenport, Iowa on November 15, 
 
            1990.  The record in the proceeding consists of testimony 
 
            from Dennis Hoglin and Willard L. Ford and joint exhibit 1.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Willard L. Ford injured his left leg on May 8, 1985.  
 
            Thereafter, he underwent an extended period of recuperation 
 
            which ended on July 2, 1989 when the treating physicians 
 
            found that his recovery had substantially ended and ratings 
 
            of permanent impairment were rendered.  At that time, 
 
            Willard was capable of working only six hours per day rather 
 
            than a normal eight-hour day.  He was also capable of 
 
            working only five days per week, rather than averaging six 
 
            work days as he had done prior to being injured.  His 
 
            employer normally had a sixth day of work available each 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            week.  Willard was unable to resume his prior practice of 
 
            working an average of 48 hours per week due to the 
 
            limitations and restrictions which resulted from the injury.  
 
            He was limited to 30 hours per week as a result of the 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Willard seeks compensation for the loss of 
 
            approximately 18 hours of work each week during the period 
 
            commencing July 3, 1989 and running through his retirement 
 
            on August 3, 1990.
 
            
 
                 Where an injury is limited to a scheduled member, the 
 
            loss is measured functionally, not industrially.  The impact 
 
            of the injury upon the employee's actual earnings or earning 
 
            capacity is not considered.  Graves v. Eagle Iron Works, 331 
 
            N.W.2d 116 (Iowa 1983).
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 This case clearly illustrates the inequity which 
 
            sometimes results from the scheduled member system.  It is 
 
            up to the legislature to change that system if it desires to 
 
            do so.  Willard L. Ford has been paid all benefits which the 
 
            law provides to him under the workers' compensation statutes 
 
            of this state.  He is therefore not entitled to any further 
 
            or additional recovery.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Willard L. Ford take 
 
            nothing from this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against Willard L. Ford pursuant to 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 343 
 
            IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Mr. Earl A. Payson
 
            Attorney at Law
 
            409 Putnam Building
 
            215 Main Street
 
            Davenport, Iowa  52801
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805-0339
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed November 20, 1990
 
                           MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLARD L. FORD,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 797784
 
            NICHOLS HOMESHIELD, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Employee with a scheduled injury to his leg had been 
 
            voluntarily paid all compensation due.  The fact that he was 
 
            unable to work as many hours subsequent to recovery from the 
 
            injury as he had been able to work prior to the injury was 
 
            not a factor in determining the amount of weekly 
 
            compensation benefits he was entitled to receive.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA R. SCOVILL,
 
         
 
                Claimant,                     File No. 798004
 
          
 
          VS.
 
                                                 A P P E A L
 
          BENSON OPTICAL,
 
          
 
                Employer,                     D E C I S I 0 N
 
          
 
          and
 
         
 
         EMPLOYERS INSURANCE OF WAUSAU,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying any 
 
         type of benefits as a result of an alleged injury in September of 
 
         1984.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibit 1, and defendants' 
 
         exhibits A through F. Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Although claimant did not specifically state the issues on 
 
         appeal, defendants stated the issues as follows:
 
         
 
              1.  Whether the claimant sustained an injury to her back and 
 
              neck in September of 1984 which arose out of and in the 
 
              course of her employment.
 
              
 
              2.  Whether the claimant's carpal tunnel syndrome injury in 
 
              September of 1984 was the cause of any temporary total 
 
              disability, and if so, the nature and extent of benefits.
 
              
 
              3. Whether the claimant is entitled to any permanent 
 
              disability benefits, and if so, the nature and extent of 
 
              such benefits.
 
              
 
              4.  Whether the claimant is entitled to medical expenses 
 
              incurred for treatment by Dr. L. E. Phipps, D.C., and if so, 
 
              the fairness and reasonableness of these medical expenses.
 
              
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
              1.  Claimant has worked for employer from 1979 until the
 
         present time.
 
         
 
              2.  Claimant's job as a first inspector of finished lenses 
 
         required the repetitive carrying of stacked trays and the 
 
         adjustment of axis wheels on a lensometer and that these duties 
 
         required the repetitive use of her fingers, hands and wrists.
 
         
 
              3.  Michael J. Kitchell, M.D., testified that claimant had a 
 
         predisposition for and a susceptibility to carpal tunnel syndrome 
 
         and that the finger, hand and wrist motions of her job aggravated 
 
         her preexisting carpal tunnel syndrome condition.
 
         
 
              4. None of claimant's many physicians specifically stated 
 
         that claimant's employment was the cause of her neck and back 
 
         condition on or about September of 1984; but rather the evidence 
 
         indicates that claimant has suffered from degenerative neck and 
 
         back problems for many years prior to September of 1984.
 
         
 
              5.  Claimant never mentioned her neck and back complaints to 
 
         Dr. Kitchell because he never mentioned them in any of his 
 
         reports or in his deposition testimony.
 
         
 
              6.  David J. Boarini, M.D., said that her chronic neck and 
 
         low back pains are not work related.
 
         
 
              7.  There is no medical record that C. P. Toledano, M.D., or 
 
         any other physician took claimant off work at any time for the 
 
         carpal tunnel syndrome injury of September of 1984.
 
         
 
              8.  None of the many doctors awarded claimant an impairment 
 
         rating for the carpal tunnel syndrome injury of September of 
 
         1984.
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              9.  Dr. Kitchell said that claimant did not sustain any 
 
         permanent impairment or disability as a result of the carpal 
 
         tunnel syndrome injury of September of 1984.
 
         
 
              10.  Dr. Kitchell recommended against diathermy and 
 
         ultrasound treatments for carpal tunnel syndrome and that Dr. 
 
         Boarini recommended against chiropractic treatment in general for 
 
         claimant's complaints.
 
         
 
              11.  Claimant's carpal tunnel syndrome condition of 
 
         September of 1984 does not require chiropractic treatments.
 
         
 
              12.  There was no convincing evidence that chiropractic 
 
         treatments two or three times per week totalling $12,264.00 had 
 
         any beneficial effect on claimant's carpal tunnel syndrome injury 
 
         of September of 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained a carpal tunnel syndrome 
 
         injury on or about September of 1984.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a neck and back 
 
         injury on or about September of 1984.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the carpal tunnel syndrome 
 
         injury of September of 1984 was the cause of any temporary or 
 
         permanent impairment or disability.
 
         
 
              Claimant is not entitled to temporary or permanent 
 
         disability benefits.
 
         
 
              Claimant is not entitled, to the payment of Dr. Phipps' bill 
 
         in the amount of $12,264.00.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is to receive nothing as a result of these 
 
         proceedings.
 
         
 
              That the costs of this action are charged to claimant.
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Signed and filed this 3rd day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 
         Attorney at Law
 
         34 S. First Avenue
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Valerie A. Fandel
 
         Attorneys at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1800, 1803, 1100
 
                                            Filed August 3, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA R. SCOVILL,
 
         
 
                Claimant,                    File No. 798004
 
          
 
          VS.
 
                                                A P P E A L
 
          BENSON OPTICAL,
 
          
 
                Employer,                    D E C I S I 0 N
 
          
 
          and
 
         
 
         EMPLOYERS INSURANCE OF WAUSAU,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1800, 1803
 
         
 
         
 
              The deputy's decision denying claimant permanent partial 
 
         disability benefits for carpal tunnel syndrome was affirmed on 
 
         appeal.
 
         
 
         
 
         1100
 
         
 
         
 
              The deputy's decision that claimant did not suffer an injury 
 
         to the back or neck arising out of or in the course of the 
 
         employment was also affirmed on appeal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          
 
          BARBARA R. SCOVILL,
 
               Claimant,
 
         
 
         VS.
 
                                                      File No. 798004
 
         
 
         BENSON OPTICAL,
 
                                                 A R B I T R A T I 0 N
 
         
 
              Employer,
 
                                                      D E C I S I 0 N
 
         
 
         and
 
         
 
         EMPLOYERS INSURANCE OF WAUSAU
 
         
 
              Insurance Carrier,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Barbara R. 
 
         Scovill, claimant, against Benson Optical, employer, and 
 
         Employers Insurance of Wausau, insurance carrier, defendants, for 
 
         benefits as a result of an alleged injury which occurred in 
 
         September of 1984.  A hearing was held on October 28, 1987 in Des 
 
         Moines, Iowa and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Barbara R. 
 
         Scovill, claimant, Jerry Nelson, production manager, claimant's 
 
         exhibit 1 and defendants' exhibits A through F.  Exhibit E is a 
 
         short video presentation of claimant performing one of her jobs 
 
         for employer.  Defendants were ordered to maintain custody of the 
 
         video until all appellate periods have expired.  Both parties 
 
         submitted excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury;
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $158.89 per week;
 
         
 
              That defendants make no claim for credits for 
 
         nonoccupational group health plan benefits or workers' 
 
         compensation ben its paid prior to hearing; and,
 
              That there are no bifurcated claims.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         SCOVILL V. BENSON OPTICAL
 
         Page 2
 
         
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury in September of 1984 
 
         which arose out of and in the course of her employment with 
 
         employer;
 
         
 
              Whether the injury was the cause of any temporary or 
 
         permanent disability;
 
         
 
              Whether claimant is entitled to any temporary or permanent 
 
         disability benefits, and if so, the nature and extent of 
 
         benefits; and,
 
         
 
              Whether claimant is entitled to the medical expenses of L. 
 
         E. Phipps, D.C., and if so, the fairness and reasonableness of 
 
         these medical expenses.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant was born on May 31, 1934.  She was 50 years old at 
 
         the time of the alleged injury and 53 years old at the time of 
 
         the hearing.  Claimant attended only one year of high school, but 
 
         later obtained her GED.  She has no additional education nor 
 
         training.  She did obtain a real estate license at one time, but 
 
         it has expired.  Past employments include dietary aide in a 
 
         hospital and a vending machine hostess and route sales and 
 
         service person.  She has worked for employer for approximately 11 
 
         years.  Claimant began working for employer in 1976 and worked as 
 
         a lens inserter for approximately five years.  She then became a 
 
         first inspector and has worked in that capacity for six years.
 
         
 
              At the time of the alleged injury in September of 1984, 
 
         claimant's job was to obtain trays containing two newly-ground 
 
         lenses which are arranged in stacks and to take them to her work 
 
         station; place each lens in a lensometer; squeeze a clamp to hold 
 
         the lens in place; and, examine each lens for prescription 
 
         accuracy and other defects, in particular, scratches.  A 
 
         lensometer looks like a microscope with two knobs on each side 
 
         which are called axis wheels.  She manipulated and adjusted the 
 
         axis wheels back and forth with the first two fingers of each 
 
         hand in order to inspect each lens.  If the lens was okay, she 
 
         initialed the order and sent it forward.  If the lens was not 
 
         okay, she rejected it and sent it back to be corrected.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that she performed this job sitting on a 
 
         high stool without a back.  The trays weigh about one
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 3
 
         
 
         
 
         pound and measure approximately six inches by three inches by 
 
         eighteen ' n inches in size.  Claimant gave a detailed 
 
         description of the motions that she makes with her fingers, 
 
         hands, wrists and arms on the record at the hearing.  Exhibit E 
 
         also is a video which demonstrates these motions.  Claimant 
 
         testified that she performed this job eight hours per day, five 
 
         days per week for the last six years.  Claimant estimated that 
 
         she processed approximately 300 trays which amounts to 500 or 600 
 
         lenses per day and, on busy days, she processed even more than 
 
         that.  Jerry Nelson, claimant's supervisor and production manager 
 
         testified that she processed only 50-100 lenses per day.        
 
         Claimant admitted that there was no quota that she was required 
 
         to meet other than to get the job done as best she was able to 
 
         do.
 
         
 
              Claimant contended that sitting on the high stool without a 
 
         back where her feet could not touch the rung while performing the 
 
         first inspector job described above injured her neck, back and 
 
         wrists.  She stated that her problems actually began in 1980.  
 
         She testified that she has seen a number of doctors, but L. E. 
 
         Phipps, D.C., and David B. McClain, D.O., have been the two main 
 
         treating physicians.
 
         
 
              Claimant testified that she missed three weeks and two and 
 
         one-half days from work when she saw C. P. Toledano, M.D. She 
 
         testified that he took her off work to rest and to wear a wrist 
 
         splint.  Claimant testified that Dr. Toledano gave her a slip 
 
         taking her off work and that she gave this slip to Jerry Nelson.  
 
         Nelson testified that claimant brought in a slip from the doctor 
 
         at one point in time, but he did not learn until later that she 
 
         was being treated for carpal tunnel syndrome.  There is nothing 
 
         in Dr. Toledano's report or otherwise in the medical.evidence to 
 
         show that Dr. Toledano took claimant off work for any period of 
 
         time (exhibit A, pages 24-27).
 
         
 
              Claimant testified that Dr. Phipps continued to treat her 
 
         neck, upper back and lower back with electronic muscle 
 
         stimulation, table traction, manipulation, ultrasound and 
 
         diathermy two or three times a week.  Claimant testified that she 
 
         realized that Dr. Phipps' treatments were not curing her, but it 
 
         made her feel better for maybe a day.  His treatments make her 
 
         more relaxed, the pain is dulled, she is able to finish the day 
 
         and go back to work the next day.  Claimant testified that she 
 
         could not do her job without these treatments because the pain is 
 
         so intense.  Claimant stated that she wears the wrist splints now 
 
         only if her hands get numb.  She feels best on Saturdays and 
 
         Sundays and when she has time off from work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant and Nelson agreed that several modifications had 
 
         been made to accommodate claimant's work.  Employer has (1) 
 
         shortened the legs on her chair and her work table so that her 
 
         feet have some place to rest, (2) tried one or two or three 
 
         different lensometers, (3) changed the size of the axis wheels to 
 
         smaller wheels which would be easier to manipulate, (4) obtained 
 
         a new spring clamp for the lensometer and, (5) arranged
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 4
 
         
 
         
 
         the work pattern so that claimant works from left to right 
 
         instead of from right to left.  It was not possible to change the 
 
         tension on the axis wheels.  Claimant granted that she may have 
 
         poor posture, that she is overweight and that her failure to 
 
         exercise may contribute to her problem.  She stated that her pain 
 
         at home is not as bad as her pain at work.  She added that she 
 
         has certain acute periods without any particular reason or 
 
         explanation.  Also, hot days, cold days and rainy days can affect 
 
         her pain.  Claimant stated that she believed her condition was 
 
         getting worse as she got older.
 
         
 
              A review of the medical evidence follows.  C. P. Toledano, 
 
         M.D., reported to Dr. Phipps by letter on August 24, 1984.  He 
 
         said that he saw claimant on August 21, 1984 with complaints of 
 
         headaches and neck, arm and hand pain on the right side that she 
 
         said originated in 1983.  He said that these symptoms have become 
 
         active while inserting lenses. (However, claimant was a first 
 
         inspector at the time she saw Dr. Toledano rather than a lens 
 
         inserter.) A summary of Dr. Toledano's findings are as follows:
 
         
 
              Impression: I am inclined to believe that this patient has 
 
              nerve involvement both at the proximal (cervical) and distal 
 
              levels (at the wrist).  Proximal level in the form of 
 
              radiculopathy based on the following findings and symptoms.
 
              
 
                   1. Decreased mobility of the cervical region.
 
                   2. Tenderness on deep palpation over the right 
 
              paracervical
 
                      muscles.
 
                   3. Radiating pain from the neck to the right arm and 
 
              hand with
 
                      tingling sensations.
 
                   4. Cervical x-ray findings of marked degenerative 
 
              changes of 
 
                      intervertertebral [sic] spaces with osteophytic 
 
              formation at
 
                      C5-6.
 
                   5. Abnormal thermographic changes at the right side of 
 
              the
 
                      posterior cervical view.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Distal level in the form of carpal tunnel syndrome based on 
 
              the following findings and symptoms:
 
              
 
              1.  Presence of numbness and tingling sensation of the 
 
              forearm and hand. 
 
                  Carpal tunnel syndrome can produce retrograde symptoms 
 
              to the
 
                  forearm and at the shoulder.
 
              2.  Positive Phalen Sign.
 
              3.  Abnormal thermographic changes at median nerve 
 
              distribution on the
 
                  right side.
 
         
 
              These combined abnormalities are appropriately termed, 
 
              "Double Crunch Syndrome".
 
              
 
              For further work-up, EMG-NCV may be considered.
 
              
 
              
 
              
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 5
 
         
 
         
 
              As for treatment, physical therapy is advised to be directed 
 
              to the cervical region in the form of therapeutic heat, 
 
              traction, and soft tissue manipulation.  I suggest the 
 
              patient be provided with a wrist splint and/or significant 
 
              alteration of work to reduce aggravation of the condition 
 
              and therapeutic heat in the form of ultrasound be applied to 
 
              the volar surface of the wrist.
 
              
 
              Intralesional injection of steroids at the wrist is another 
 
              future consideration.  Surgery is the last resort.
 
              
 
         (Exhibit A, pages 26 and 27)
 
         
 
              On August 28, 1984, Dr. Toledano sent an addendum to Dr. 
 
         Phipps.  Dr. Toledano stated that he provided claimant with a 
 
         wrist splint which she was to wear until he saw her again in 
 
         three weeks.  He said that he also started the ultrasound which 
 
         should be continued by Dr. Phipps on a daily basis.
 
         
 
              Michael J. Kitchell, M.D., a  neurologist,  saw  claimant 
 
         and reported to Dr. Phipps on September 5, 1984.  He said 
 
         claimant complained of pain and numbness in her hands over the 
 
         past four years which often occurs in relationship to her work 
 
         which involves a lot of hand and wrist movements as an optical 
 
         inspector.  Dr. Kitchell concluded as follows:
 
         
 
              My impression from the nerve conduction velocity testing and 
 
              EMGs is that she has a bilateral carpal tunnel syndrome 
 
              worse on the right than the left.  I have encouraged her to 
 
              continue with conservative Let me know if you have any other 
 
              questions therapy. about her examination here.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
         (Exhibit A, page 33; exhibit B, page 57).
 
         
 
              Dr. Kitchen reported to defendants' counsel on January 22, 
 
         1986 that claimant complained of numbness in her hands associated 
 
         with pain and weakness for the past five years.  She mentioned 
 
         that she uses her fingers and wrists to operate the lensometer 
 
         and that she also lifts trays.  Dr. Kitchell related that 
 
         claimant said that the pain and numbness were better than in 
 
         1984, but the grip weakness was greater.  A repeat nerve 
 
         conduction test disclosed mild, bilateral carpal tunnel syndrome, 
 
         with the right median motor worse than on the left side.  Dr. 
 
         Kitchell said:
 
         
 
              It is my opinion that Mrs. Scovill's carpal tunnel syndrome 
 
              is work related.  I do not think there is anything 
 
              extraordinary about her work that would cause her to have 
 
              the carpal tunnel syndrome, though I suspect that she would 
 
              get a carpal tunnel syndrome if she were working in any 
 
              occupation which required
 
              
 
              
 
              
 
         SCOVILL V. BENSON OPTICAL
 
         Page 6
 
         
 
         
 
              her to keep her wrists and fingers flexed for periods of 
 
              time.  This, of course, means that if she had a job which 
 
              did not require flexion of the wrists and fingers, it would 
 
              be less likely that she would have developed these symptoms.
 
              
 
         (Exhibit A, page 30)
 
         
 
              Dr. Kitchell continued that, since claimant had been using 
 
         wrist splints, her condition improved, but that it would worsen 
 
         if she engaged in more activity which required wrist and finger 
 
         flexion, particularly under tension.  Dr. Kitchell believed that 
 
         claimant may have a predisposition for carpal tunnel syndrome.  
 
         These are his concluding remarks:
 
         
 
              To summarize, therefore, it is my belief that Mrs. Scovill's 
 
              carpal tunnel syndrome is mild, and work related.  She 
 
              probably has a predisposition to developing carpal tunnel 
 
              syndrome, which was brought about by the wrist and finger 
 
              activities required as a part of her job.
 
              
 
         (Exhibit A, page 30)
 
         
 
              Dr. Kitchell reported one more time to defendants' counsel 
 
         to state that, in his opinion, ultrasound and diathermy 
 
         treatments are unlikely to help her carpal tunnel syndrome 
 
         (exhibit A, page 28).  It is noted that Dr. Kitchell made 
 
         absolutely no mention of neck or back pain in any of his reports.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              David B. McClain, D.O., reported to claimant's counsel that 
 
         he first saw claimant on February 10, 1986 for cervical pain and 
 
         lumbar pain originating in 1980.  She also told him that she had 
 
         carpal tunnel syndrome confirmed by EMG twice.  Dr. McClain said:
 
         
 
              Impression: Degenerative joint disease C-5, 6 and C-6, 7. 
 
              Right carpal tunnel syndrome.
 
              
 
         (Exhibit A, page 7)
 
         
 
              Dr. McClain recommended anti-inflammatory medications, 
 
         isometric exercises of the cervical spine and that claimant wear 
 
         the wrist splint at night on the right.  Claimant returned to Dr. 
 
         McClain on June 6, 1986 and November 3, 1986.  Again, he gave his 
 
         impression as right carpal tunnel syndrome and degenerative joint 
 
         disease cervical spine.  His final remarks are as follows:
 
         
 
              My most recent examination was carried out on November 18, 
 
              1986.  The EMG conclusion was most consistent with the 
 
              presence of a right median entrapment neuropathy distal to 
 
              the wrist.  This is of an extremely mild degree 
 
              electrically.  Patient states that she is
 
              
 
              
 
              
 
         SCOVILL V. BENSON OPTICAL
 
         Page 7
 
         
 
         
 
              continuing to wear the splint at night and it does help with 
 
              occasional wakening at night.
 
              
 
              orthopaedic examination revealed a positive Phalen sign.  
 
              Examination of the cervical spine revealed the reflexes to 
 
              be equal and active.
 
              
 
              Films were reviewed of October 22, 1986 which revealed 
 
              severe forminial [sic] impingement C-5, 6.
 
              
 
              It was my recommendation that she continue taking her 
 
              Naprosyn as well as wearing the splint at night.  She is to 
 
              continue with treatments by Dr. Phipps.  I plan to 
 
              re-evaluate her in eight weeks.  Carpal tunnel release will 
 
              be considered if she is unable to work as discussed.
 
              
 
         (Exhibit A, page 8)
 
         
 
              L. Z. Lindemann, D.C., reported to Dr. Phipps on February 
 
         27, 1987 that claimant's present findings were consistent with 
 
         advanced degenerative joint disease, a cure was not possible, but 
 
         continued chiropractic treatment might make her pain bearable and 
 
         stabilize the condition (exhibit A, pages 1-3).
 
         
 
              Claimant was examined by David J. Boarini, M.D., a 
 
         neurosurgeon on February 9, 1'987 for defendants.  She complained 
 
         of neck aches, low back pain and numbness.  He gave these medical 
 
         remarks:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Upon examination, this is an obese, adult, white female.  
 
              She has a normal gait and a normal range of motion of the 
 
              lower back in all directions.  She has a normal range of 
 
              motion in the neck also.  She has no paravertebral spasm or 
 
              tenderness in the neck or the low-back.  The neurological 
 
              exam shows entirely normal strength in all muscle groups in 
 
              the upper and lower extremities.  She has normal.touch, 
 
              pinprick and vibration.  She has a negative Tinel's sign 
 
              bilaterally and negative straight leg raising.  Biceps, 
 
              triceps, knee and ankle reflexes are all normal.
 
              
 
              The patient has had previous EMGs which reportedly show 
 
              bilateral carpal tunnel syndrome, worse on the right than 
 
              the left.  Cervical spine films previously obtained 
 
              demonstrated mild to minimal spondylosis and no other 
 
              changes.  Thoracic spine films done today are unremarkable.  
 
              Lumbosacral spine films done today shows [sic] some L-5, S-1 
 
              narrowing but no acute abnormalities.
 
              
 
              I discussed the situation with this patient at some length, 
 
              both as far as her work and her current complaints.  I've 
 
              explained to her that I think she does in fact have carpal 
 
              tunnel syndrome, worse on the right than
 
              
 
              
 
              
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 8
 
         
 
         
 
              the left, and this is quite possibly work related.  This is 
 
              currently asymptomatic while she is wearing wrist splints.  
 
              I have also explained to her that should this carpal tunnel 
 
              syndrome cause more trouble, specifically numbness or 
 
              tingling in the fingers and pain in the hand and the 
 
              forearm, she would very likely benefit from a carpal tunnel 
 
              release.
 
              
 
              in regard to her other difficulties, I think she has some 
 
              chronic myofascial neck and low-back pain.  I do not think 
 
              this is work related, nor do I think it is causing her any 
 
              significant impairment at this time.  I would recommend no 
 
              further treatment except perhaps to start her on an exercise 
 
              program and some weight loss.  I don't expect her to have 
 
              any progression or need any other type of therapy as her 
 
              condition currently exists.
 
         
 
         (Exhibit A, pages 5 and 6)
 
         
 
         `    On May 7, 1987, Dr. Boarini added that he would not 
 
         recommend further chiropractic treatments.  He thought they were 
 
         ineffective for carpal tunnel syndrome and long-term chronic 
 
         myofascial back and neck pain (exhibit A, page 4).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              L. E. Phipps, D.C., reported on September 11, 1984.  He said 
 
         he first saw claimant on November 2, 1983 for (1) headaches 
 
         daily, (2) pain between shoulders, (3) past history of low back 
 
         pain and, (4) numbness and tingling in arms and hands.  He traced 
 
         her back pain to 1980 when claimant experienced pain stepping off 
 
         a high backless stool at work.  He examined, x-rayed and tested 
 
         claimant extensively.  He diagnosed (1) severe cervical cranial 
 
         syndrome, (2) lumbosacral disc syndrome and, (3) chronic 
 
         parathesis to hands and arms.  He recommended and subsequently 
 
         treated claimant with spinal manipulation, diathermy, 
 
         intersegmental traction, and ultrasound.  Dr. Phipps concluded as 
 
         follows:
 
         
 
              Impressions: Condition has stabilized, however, this patient 
 
              is on a supportive care schedule which is necessary as any 
 
              extended period of time without treatment, results in 
 
              exacerbation.  Patient is now being monitored on a biweekly 
 
              interval, which seems to control her pain except for bouts 
 
              of acute exacerbations due to work related activities.
 
              
 
         (Exhibit A,'page 18)
 
         
 
              The total bill for Dr. Phipps totals $12,264.00 as of
 
         October 26, 1987 (exhibit 1).
 
         
 
              Dr. Kitchen is a  board-certified  neurologist  (exhibit C, 
 
         deposition exhibit 1).  He testified by deposition on September 
 
         8, 1986 (exhibit C).  He stated that he had been a teaching 
 
         resident at the University of Iowa and has been in private
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 9
 
         
 
         
 
         practice since 1979.  He saw claimant at the request of Dr. 
 
         Phipps on August 31, 1984 (the alleged injury date is September 
 
         of 1984).  Dr. Kitchell determined that claimant's hypothyroid 
 
         condition was not the cause of her carpal tunnel syndrome even 
 
         though this condition can be a contributing factor (exhibit C, 
 
         page 6).  He explained Tinel sign, Phalen sign and carpal tunnel 
 
         syndrome.  He performed an electromyographic test and a nerve 
 
         conduction test and found that claimant had carpal tunnel 
 
         syndrome, worse on the right than the left.  He saw claimant 
 
         again on January 13, 1986 at the request of defense counsel.  A 
 
         repeat EMG/NCV examination found that claimant's symptoms were 
 
         slightly improved.  Dr. Kitchell viewed the video and formed the 
 
         opinion that claimant's work did not cause the carpal tunnel 
 
         syndrome, however, that her work did aggravate or accelerate it 
 
         and make the condition manifest.  He related that claimant had a 
 
         basic susceptibility for carpal tunnel syndrome, but that her 
 
         actual symptoms were aggravated by the type of work that claimant 
 
         was doing in operating the lensometer and handling the trays.  He 
 
         did not recommend surgery, but rather continued conservative 
 
         therapy with wrist splints.  Dr. Kitchen testified that there was 
 
         no permanent impairment (exhibit C, pages 16-21, 26 and 27).  Dr. 
 
         Kitchell added that carpal tunnel syndrome is not benefited by 
 
         ultrasound treatments (exhibit C, page 22).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Jerry Nelson has been employer's  production  manager  for 
 
         23 years.  Claimant worked under his general supervision through 
 
         intermediate supervisors.  They work in the same room, however, 
 
         and Nelson can observe her when she works.  He confirmed that a 
 
         number of job modifications had been made to assist claimant in 
 
         doing her job.  Nelson testified that she is a good employee, 
 
         performs her job well, has not been disciplined and she never 
 
         reported to him that she could not perform her job.  Nelson 
 
         affirmed that he had no plans to terminate her.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury in September of 1984 which 
 
         arose out of and in the course of her employment. McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W. 2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course, of 
 
         the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
         68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa 
 
         Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 
 
         Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 
 
         Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL
 
         Page 10
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury in September, 1984 is causally 
 
         related to the disability on which she now bases her claim. 
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection. 
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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 178-(l967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained a bilateral carpal tunnel 
 
         injury, right worse than left, that occurred on or about 
 
         September of 1984.  Claimant did not sustain the burden of proof 
 
         by a preponderance of the evidence that she received a neck 
 
         and/or back injury on or about September of 1984.
 
         
 
              A review of the medical evidence is as follows:
 
         
 
              As to the wrists, Dr. Toledano did not specifically state 
 
         that the work caused the carpal tunnel syndrome, but he did imply 
 
         that it contributed to it by stating that he recommended wrist 
 
         splints and/or a significant alteration of work to reduce 
 
         aggravation of her condition.  Dr. Toledano did not give an 
 
         opinion on the causal connection of claimant's work to her neck 
 
         and back complaints.
 
         
 
              Dr. Kitchell, the board-certified neurologist, clearly and 
 
         unequivocally stated in his medical,reports and in his deposition 
 
         testimony that claimant's work as a first inspector aggravated 
 
         her predisposition to carpal tunnel syndrome (exhibit A, page 30; 
 
         exhibit C, pages 16-18).  Dr. Kitchell, at no time, either in his 
 
         medical reports or in his deposition testimony made any comment 
 
         whatsoever concerning claimant's neck and back condition.  
 
         Therefore, there is no evidence from him on whether the 
 
         employment caused the injury, whether the injury is the cause of 
 
         any temporary or permanent impairment or the amount of temporary 
 
         or permanent impairment or disability.
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL
 
         Page 11
 
         
 
         
 
              Dr. McClain did not make a statement on causal connection of 
 
         claimant's employment to either the carpal tunnel syndrome injury 
 
         or the alleged neck and back injury (exhibit A, pages 7 and 8).
 
         
 
              Dr. Lindemann did not give a specific statement or opinion 
 
         on the causal connection of claimant's employment to either the 
 
         carpal tunnel syndrome or her neck and back condition (exhibit A, 
 
         pages 1-3).
 
         
 
              Dr. Boarini said that claimant's carpal tunnel syndrome was 
 
         "quite possibly work related." He added that her chronic 
 
         myofascial neck and low back pain was not work related (exhibit 
 
         A, pages 5 and 6).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the carpal tunnel syndrome 
 
         injury which occurred on or about September of 1984 was the cause 
 
         of either temporary or permanent disability.  Claimant testified 
 
         that Dr. Toledano took her off work for throe weeks, two and 
 
         one-half days and gave her a slip which she presented to 
 
         employer.  Nelson testified that claimant did turn in a slip from 
 
         Dr. Toledano at one time in order to be off work, but he did not 
 
         know that it had anything to do with a carpal tunnel syndrome 
 
         injury until some time later.  The slip is not in evidence.  Dr. 
 
         Toledano's reports say nothing about taking claimant off work for 
 
         any period of time or issuing a slip for that purpose (exhibit A, 
 
         pages 24-27).  Therefore, claimant has not sustained the burden 
 
         of proof by a preponderance of the evidence that the carpal 
 
         tunnel syndrome injury of September of 1984 was the cause of any 
 
         temporary disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant saw numerous doctors, none of them made a 
 
         statement that claimant sustained any permanent impairment and 
 
         none of the doctors awarded a permanent functional impairment 
 
         rating.  Both claimant and Nelson testified that claimant has 
 
         lost no time from work due to the carpal tunnel syndrome, except 
 
         for a brief period when she saw Dr. Toledano on approximately two 
 
         occasions.  Therefore, claimant has not lost any actual earnings 
 
         from inability to perform her job.  Both claimant and Nelson 
 
         testified that claimant is an extremely competent employee at a 
 
         job which requires a great deal of accuracy and effectiveness.  
 
         Nelson testified that claimant's job is not in jeopardy at this 
 
         time.  He observes her every day and she does her job well.  In 
 
         his deposition, Dr. Kitchell said there was no permanent 
 
         impairment (exhibit C, pages 16, 26 and 27). Dr. Boarini said 
 
         that claimant is asymptomatic when she wears wrist splints.  
 
         Claimant testified that her condition has improved after wearing 
 
         wrist splints.  As a result, she wears them now only on an as 
 
         needed basis.  No doctor has recommended carpal tunnel surgery.  
 
         On the contrary, the doctors have recommended against surgery 
 
         because claimant's condition of carpal tunnel syndrome was so 
 
         mild.  Therefore, claimant has not sustained the burden of proof 
 
         by a preponderance of the evidence that
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL 
 
         Page 12
 
         
 
         
 
         her carpal tunnel syndrome is the cause of any permanent 
 
         impairment or any permanent disability.  Accordingly, claimant 
 
         therefore is not entitled to permanent disability benefits.
 
         
 
              Claimant did not prove that the carpal  tunnel  syndrome 
 
         injury of September of 1984 was the reason for incurring 
 
         $12,264.00 in chiropractic expenses with Dr. Phipps or that the 
 
         chiropractic expenses were a reasonable medical expense (Iowa 
 
         Code section 85.27). If claimant has seen Dr. Phipps two or three 
 
         times a week for two years or more, but she feels like she is 
 
         getting worse as she gets older, then these treatments are 
 
         neither reasonable nor effective in treating either the carpal 
 
         tunnel syndrome or the neck and back condition.  Although Dr. 
 
         McClain and Dr. Toledano recommended that claimant continue with 
 
         chiropractic treatments, both Dr. Kitchell, a board-certified 
 
         neurologist, and Dr. Boarini, a board-certified neurosurgeon/ 
 
         recommended against them.  Dr. Kitchell recommended against 
 
         diathermy and ultrasound treatments (exhibit A, page 28).  Dr. 
 
         Boarini recommended against chiropractic treatments in general 
 
         (exhibit A, page 4). Therefore, claimant did not sustain the 
 
         burden of proof by a preponderance of the evidence that the 
 
         chiropractic treatments with Dr. Phipps were required for the 
 
         carpal tunnel syndrome injury of September of 1984; nor did she 
 
         sustain the burden of proof by a preponderance of the evidence 
 
         that these treatments were reasonable medical treatment for her 
 
         carpal tunnel syndrome condition.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant has worked for employer from 1979 until the 
 
         present time.
 
         
 
              That claimant's job as a first inspector of finished lenses 
 
         required the repetitive carrying of stacked trays and the 
 
         adjustment of axis wheels on a lensometer and that these duties 
 
         required the repetitive use of her fingers, hands and wrists.
 
         
 
              That Dr. Kitchell testified that claimant had a 
 
         predisposition for and a susceptibility to carpal tunnel syndrome 
 
         and that the finger, hand and wrist motions of her job aggravated 
 
         her preexisting carpal tunnel syndrome condition.
 
         
 
              That none of claimant's many physicians specifically stated 
 
         that claimant's employment was the cause of her neck and back 
 
         condition on or about September of 1984; but rather the evidence 
 
         indicates that claimant has suffered from degenerative neck and 
 
         back problems for many years prior to September of 1984.
 
         
 
              That claimant never mentioned her neck and back complaints 
 
         to Dr. Kitchell because he never mentioned them in any of his 
 
         reports or in his deposition testimony.
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL
 
         Page 13
 
         
 
         
 
              That Dr. Boarini said that her chronic neck and low back 
 
         pains are not work related.
 
         
 
              That there is no medical record that Dr. Toledano or any 
 
         other physician took claimant off work at any time for the carpal 
 
         tunnel syndrome injury of September of 1984.
 
         
 
              That none of the many doctors awarded claimant an impairment 
 
         rating for the carpal tunnel syndrome injury of September of 
 
         1984.
 
         
 
              That Dr. Kitchell said that claimant did not sustain any 
 
         permanent impairment or disability as a result of the carpal 
 
         tunnel syndrome injury of September of 1984.
 
         
 
              That Dr. Kitchell recommended against diathermy and 
 
         ultrasound treatments for carpal tunnel syndrome and that Dr. 
 
         Boarini recommended against chiropractic treatment in general for 
 
         claimant's complaints.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant's carpal tunnel syndrome condition of 
 
         September of 1984 does not require chiropractic treatments.
 
         
 
              That there was no convincing evidence that chiropractic 
 
         treatments two or three times per week totalling $12,264.00 had 
 
         any beneficial effect on claimant's carpal tunnel syndrome injury 
 
         of September of 1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, ' based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a carpal tunnel 
 
         syndrome injury on or about September of 1984.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a neck and back 
 
         injury on or about September of 1984.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the carpal tunnel syndrome 
 
         injury of September of 1984 was the cause of any temporary or 
 
         permanent impairment,or disability.
 
         
 
              That claimant is not entitled to temporary or permanent 
 
         disability benefits.
 
         
 
              That claimant is not entitled to the payment of Dr. Phipps' 
 
         bill in the amount of $12,264.00.
 
         
 
         
 
         
 
         SCOVILL V. BENSON OPTICAL
 
         Page 14
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no monies are due from defendants to claimant.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file Claim Activity Reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 23rd day of January, 1989.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Theodore R. Hoglan
 
         Attorney at Law
 
         34 South First Avenue
 
         Marshalltown, Iowa 50158
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Valerie A. Fandel
 
         Attorneys at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1106, 1108.50, 1401, 1402.20, 
 
                                            1402.30, 1402.40, 1402.60, 
 
                                            1403.10, 1801, 1802, 1803, 
 
                                            1804, 2206, 2209, 2501, 2503, 
 
                                            2505, 2700
 
                                            Filed January 23, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARBARA R. SCOVILL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 798004
 
         BENSON OPTICAL,
 
                                                     A R B I T R A T I 0 N
 
              Employer,
 
                                                        D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS INSURANCE OF WAUSAU,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 1403.10, 
 
         2206, 2209
 
         
 
              Claimant did not prove an injury arising out of and in the 
 
         course of employment as to her neck and back.  These symptoms and 
 
         complaints were the result of a long-term continuing degenerative 
 
         process.
 
         
 
              Claimant did prove an injury arising out of and in the 
 
         course of her employment as to her bilateral carpal tunnel 
 
         syndrome.  The work did not cause the injury, but aggravated her 
 
         predisposition and susceptibility to carpal tunnel syndrome.
 
         
 
         1801, 1802, 1803, 1804
 
         
 
              Claimant did not prove any temporary or permanent impairment 
 
         or disability from the carpal tunnel syndrome.  None of the many 
 
         doctors took her off work and none of them issued a permanent 
 
         impairment rating.  Claimant continued to do the same job for the 
 
         same pay.
 
         
 
         2501, 2503, 2505, 2700
 
         
 
              Claimant did not prove that $12,264 of chiropractor 
 
         treatments were reasonable or beneficial.to her carpal tunnel 
 
         syndrome.on the contrary, a neurosurgeon and an orthopedic 
 
         surgeon recommended against them.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. HODGINS,
 
         
 
              Claimant,                          File No. 798203
 
         
 
         vs.                                       A P P E A L
 
         
 
         FLOYD VALLEY PACKING CO.,               D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE - CHUBB GROUP
 
         OF INSURANCE COMPANIES,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant Second Injury Fund of Iowa appeals from an 
 
         arbitration decision awarding permanent partial disability 
 
         benefits.  Claimant cross-appeals.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding, and joint exhibit 1.  Joint exhibit 2 was 
 
         not admitted into evidence and was not considered in this appeal 
 
         decision.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant second injury fund states the following issues on 
 
         appeal:
 
         
 
              I.  Whether the deputy industrial commissioner erred as 
 
              a matter of law in concluding that the Second Injury 
 
              Fund of Iowa was obligated to Claimant in the amount of 
 
              approximately $14,000.
 
         
 
              II.  Whether the deputy industrial commissioner erred 
 
              in concluding that Claimant's alleged loss of earning 
 
              capacity of twenty percent (20%) was the result of the 
 
              combined effects of Claimant's first and second 
 
              injuries.
 
                                                
 
                                                         
 
         
 
              Claimant states the following issues on cross-appeal:
 
         
 
              I.  Did the Deputy Industrial Commissioner correctly 
 
              apply the law in concluding that the Second Injury Fund 
 
              of Iowa was obligated to pay the industrial 
 
              disability?
 
         
 
              II.  Should the industrial disability be greater than 
 
              20% of the body?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant injured his right hand in May 1980 and 
 
         underwent a release of the right dorsal compartment on July 21, 
 
         1980.
 
         
 
              2.  Claimant was able to return to his loin wrapping job 
 
         shortly after his dorsal compartment release.
 
         
 
              3.  Claimant continues to have clamming in his right hand in 
 
         cold conditions and after working for prolonged periods.
 
         
 
              4.  Claimant had a carpal tunnel release of the left hand 
 
         October 4, 1985.
 
         
 
              5.  Claimant worked one-handed with his right hand for six 
 
         weeks following that release.
 
         
 
              6.  Claimant then returned to his loin wrapping job and 
 
         continued working that job until Floyd Valley closed in Spring 
 
         1986.
 
         
 
              7.  Claimant has secured other employment at a lesser wage 
 
         and with less employee benefits and security than he had at Floyd 
 
         Valley.
 
         
 
             8.  Claimant has past experience as a janitor and could 
 
         continue to work as a janitor.
 
         
 
                                                
 
                                                         
 
              9.  Claimant has limited literacy skills but had functioned 
 
         adequately in both prior and present employment in spite that 
 
         limitation.
 
         
 
             10.  Claimant's limited literacy skills would make retraining 
 
         for less physically demanding work more difficult.
 
         
 
              11.  Claimant was 46 years old at the time of the hearing 
 
         and a high school graduate.
 
         
 
              12.  Claimant has a 11 percent scheduled member permanent 
 
         disability to the right hand; claimant has a 10 percent scheduled 
 
         member permanent disability to the left hand.
 
         
 
              13.  Claimant is competing with noninjured workers for jobs 
 
         in a limited job market.
 
         
 
              14.  Claimant has a loss of earning capacity of 20 percent 
 
         of the body as a whole as a result of the combined effects of his 
 
         first and second injuries.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's loss of use of his left hand and his loss of use 
 
         of his right hand result in a total industrial disability of 20 
 
         percent permanent partial impairment of the body as a whole.
 
         
 
              The compensable value of claimant's loss of use of his right 
 
         hand is 20.9 weeks; the compensable value of claimant's loss of 
 
         use of his left hand is 19 weeks.
 
         
 
              The obligation of the Second Injury Fund of Iowa is 60.1 
 
         weeks at the rate of $223.96 due after Floyd Valley Packing Co. 
 
         has paid claimant its obligation as to the loss of use of the 
 
         left hand and the expiration of 20.9 weeks thereafter.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the Second Injury Fund of Iowa pay claimant permanent 
 
         partial disability benefits for sixty point one (60.1) weeks at 
 
         the rate of two hundred twenty-three and 96/100 dollars ($223.96) 
 
         with those payments to commence as set forth in the above 
 
         conclusions.
 
         
 
             That the Second Injury Fund of Iowa pay any accrued benefits 
 
         in a lump sum together with interest pursuant to section 85.30.
 
         
 
              That the Second Injury Fund of Iowa pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
                                                
 
                                                         
 
              That Defendants file claim activity reports as requested by 
 
         the agency.
 
              
 
              Signed and filed this 23rd day of August, 1988.
 
         
 
         
 
         
 
         
 
                                           DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. LeRoy J. Sturgeon
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                3203
 
                                                Filed August 23, 1988
 
                                                David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. HODGINS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 798203
 
         FLOYD VALLEY PACKING CO.,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE - CHUBB GROUP
 
         OF INSURANCE COMPANIES,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         3203
 
         
 
              Affirmed deputy's award of 20 percent industrial disability 
 
         for claimant with separate injuries to each of his hands.  Injury 
 
         to right hand resulted in 20.9 weeks of compensation, injury to 
 
         left hand resulted in 19 weeks of compensation, and Second Injury 
 
         Fund held liable for 60.1 weeks.
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILLIAM J. HODGINS,
 
         
 
              Claimant,
 
                                                   File No. 798203
 
         VS.
 
         
 
         FLOYD VALLEY PACKING CO.,
 
         
 
              Employer,                         A R B I T R A T I 0 N
 
         
 
         and                                       D E C I S I 0 N
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE- CHUBB GROUP
 
         OF INSURANCE COMPANIES,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         William J. Hodgins, against his employer, Floyd Valley Packing 
 
         Company, and its insurance carrier, Northwestern National 
 
         Insurance-Chubb Group of Insurance Companies, as well as against 
 
         the Second Injury Fund of Iowa, to recover benefits as a result 
 
         of an injury of January 18, 1985, as well as a result of an 
 
         alleged first loss of May 6, 1980.  Prior to hearing of this 
 
         matter, the employer-insurance carrier paid the employee 
 
         permanent partial disability to a scheduled member of ten percent 
 
         of the left hand on account of the January 18, 1985 injury.  
 
         Hearing as regards claimant's Second Injury Fund claim was held 
 
         in Sioux City, Iowa on February 26, 1987.  But for briefs, the 
 
         record was considered fully submitted at close of hearing.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant and of joint exhibit 1, being a series of medical 
 
         reports relative to claimant.  Testimony of Richard D. 
 
         Sturgeon, a paralegal employed by the law firm of Smith & 
 
         Smith, was received relative to the issue of reports and 
 
         testimony of Gail F. Leonhardt, a vocational expert.  All 
 
         testimony and report of Mr. Leonhardt were excluded per 
 
         defendants' objection on the
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   2
 
         
 
         
 
         
 
         
 
         grounds of failure to comply with the hearing assignment order 
 
         and failure to supplement interrogatories in a timely fashion. 
 
          Mr. Leonhardt's testimony and report were received for 
 
         custodial purposes only by way of claimant's offer of proof.  
 
         Said testimony and report will neither be reviewed nor 
 
         considered in this decision.
 
         
 
                                  ISSUES
 
         
 
              The parties stipulated that claimant's rate of weekly 
 
         compensation is $223.96; that claimant received an injury on 
 
         January 18, 1985 which arose out of and in the course of his 
 
         employment; that a causal relationship exists between the January 
 
         18, 1985 injury and a claimed disability; that claimant received 
 
         healing period benefits from the employer from October 7, 1985 
 
         through October 10, 1985; that the employer paid claimant 
 
         permanent partial disability equal to ten percent of the left 
 
         hand as a result of the January 18, 1985 injury; and that the 
 
         commencement date for any further permanent partial disability 
 
         benefits due claimant was April 17, 1986.  The issue remaining to 
 
         be decided is whether claimant is entitled to benefits under our 
 
         Second Injury Fund Act.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was born February 5, 1941 and is 
 
         a high school graduate.  Claimant reported that he is a terrible 
 
         speller and has difficulty reading some of the words in his seven 
 
         year old daughter's books, however.  Claimant has been a union 
 
         steward.  He testified he memorized the union contract and had 
 
         his wife write grievances at home.
 
         
 
              Claimant worked as a janitor, a factory worker, a Plumber 
 
         and Fitters Union helper, as well as an ironworker, rodbuster, 
 
         and in other packinghouses before beginning work at Floyd Valley 
 
         Packing Co. in October 1972.  Claimant testified that he had 
 
         never been diagnosed or treated for carpal tunnel prior to his 
 
         Floyd Valley work experience.  Claimant generally earned wages 
 
         averaging between $2.00 and $3.50 per hour at his non-Floyd 
 
         Valley employments.  He earned $7.25 per hour while working for 
 
         the union contractors, however.
 
         
 
              Claimant initially worked both on grading hams and on the 
 
         rib line at Floyd Valley.  In grading hams, claimant picked hams 
 
         from a tub, put them on the scales, and then sorted them by 
 
         weight.  On the rib line, claimant packed ribs from the conveyer 
 
         belt into thirty pound boxes and sent them further down the line. 
 
          Claimant apparently spent the balance of his time wrapping loins 
 
         on the boning line.  As a loin wrapper, claimant reached above 
 
         and grabbed plastic wrap from a roll.  He wrapped individual 
 
         loins weighing from four to fourteen pounds and placed seven to 
 
         ten of them into a box.  Claimant then carried the full box
 
         which weighed from 40 to 70 pounds approximately ten feet and 
 
         placed it on the line.  Claimant reported that he performed this 
 
         job ten hours a day, six days per week.  Claimant apparently had 
 
         to pick up each loin and push his wrist into it.  He reported 
 
         that his fists were clinched and he needed to make solid yanks 
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   3
 
         
 
         
 
         and squeeze continually to get a solid loin wrap.  Eight hundred 
 
         to a thousand loins were wrapped per hour.  The plant ran two 
 
         boning lines.  Sixty-four people worked on line one; thirty-two 
 
         people worked on line two.  Claimant worked as a wrapper on both 
 
         lines at different times.  He reported that two wrappers were 
 
         used on line two; whereas line one had double the output but only 
 
         one additional wrapper.
 
         
 
              Claimant reported that he suffered his first injury in 1980 
 
         while working on line two.  He reported that he had a knot on his 
 
         right wrist and was examined by Milton Grossman, M.D., the 
 
         company doctor.  Grossman subsequently referred claimant to Dr. 
 
         Vinont, described as a chiropractic doctor, and later to D. G. 
 
         Paulsrud, M.D., who performed surgery on claimant's right hand.  
 
         Claimant testified that the right hand has never returned to 
 
         normal and it continues to clam up in cold conditions, in the 
 
         morning, and after he has worked an eight or nine hour day.  
 
         Claimant reported that he then must run warm water over the hand 
 
         to regain mobility.  Claimant testified his left hand and fingers 
 
         became numb and clammed up while he was working on line one.  He 
 
         reported he saw Dr. Grossman who then referred him to A. Kleider, 
 
         M.D.  Claimant subsequently saw Dr. Paulsrud who performed left 
 
         wrist surgery.
 
         
 
              Claimant could not use his left hand for approximately six 
 
         weeks following that surgery.  During that period, claimant 
 
         lifted sow bellies, weighing from twelve to fifty pounds, out of 
 
         a tub with his right hand.  Claimant returned to his loin 
 
         wrapping job in approximately late December 1985 and continued to 
 
         work that job until the plant's Spring 1986 closing.  Claimant 
 
         testified that it was necessary for him to have his hand wrapped 
 
         every day in order to work without the hand clamming 
 
         significantly.  He reported that it did clam somewhat but that he 
 
         refused medication.  Claimant acknowledged that had the plant not 
 
         closed, he would likely still be working on line one as he was 
 
         top thirty in seniority on the cut floor at the plant's closing.  
 
         He agreed that to his knowledge the only reason he was not 
 
         working the line was the plant shut down.  Claimant opined that 
 
         the only jobs he could perform at Floyd Valley would be a 
 
         janitor's job or a box job each of which would pay $.25 per hour 
 
         less than he earned wrapping loins.
 
         
 
              Claimant received unemployment benefits after the plant 
 
         closing until he began work at Clover Leaf in November 1986.  
 
         Claimant worked with a private employment agency to which he must 
 
         pay a $830 fee to get this job.  Claimant works on what is 
 
         nominally a part-time basis there and receives  $4.50 per hour.  
 
         He reported that he generally works an eight to ten hour day and
 
         averages forty hours per week, but by classifying employees as 
 
         part time, the company avoids paying both insurance and holiday 
 
         pay.  He reported that at Clover Leaf, he has no job rights, no 
 
         seniority, and no job protection.  At Clover Leaf, claimant lifts 
 
         a product into a tub and then places the tub on the scale.  The 
 
         tub then apparently goes down the line and needs to be lifted 
 
         into a freezer.  Claimant characterized tubs as weighing from 30 
 
         to 60 pounds at times and reported they must be lifted from table 
 
         height to pallets, that is, approximately one or two steps, and 
 
         then placed in the freezer.  It was unclear exactly which part of 
 
         this operation claimant performed.  Claimant did report, however, 
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   4
 
         
 
         
 
         that he attempted stacking and that it "just about tore his arms 
 
         up.O
 
         
 
              On January 18, 1985, Milton D. Grossman, M.D., stated that 
 
         claimant's wrists showed evidence of an old fracture of the 
 
         distal radius and ulnar.  Claimant admitted at hearing that he 
 
         had fractured the wrist and had surgery in early childhood. on 
 
         January 18, 1985, also, a note was made that claimant grabs meat 
 
         with his left hand and puts it into a basket and that claimant 
 
         was experiencing left wrist numbness and weakness.  Dr. 
 
         Grossman's diagnosis was of strained muscle and tendons of the 
 
         left hand due to an old fracture of the distal radius and ulnar.
 
         
 
              Nerve conduction studies conducted on March 25, 1985 were 
 
         interpreted as showing motor and sensory distal latencies of the 
 
         left median nerve markedly increased with the amplitude of the 
 
         sensory action potentials decreased and slowing of conduction 
 
         across the wrists consistent with severe median neuropathy due to 
 
         wrist compression.
 
         
 
              On October 4, 1985, D. G. Paulsrud, M.D., an orthopedist, 
 
         released claimant's left carpal tunnel.  Dr. Paulsrud returned 
 
         claimant to one-handed work on October 11, 1985.  On January 21, 
 
         1986, Dr. Paulsrud saw claimant and reported that he continued to 
 
         have pain and a lot of synovitis in both hands with clicking and 
 
         clutching in his fingers.   On May 13, 1986, Dr. Paulsrud opined 
 
         that claimant had a ten percent permanent partial impairment of 
 
         both upper extremities due to chronic occupational synovitis 
 
         involving both upper extremities.
 
         
 
              On April 24, 1984, William M. Krigsten, M.D., an 
 
         orthopedist, saw claimant apparently on an emergency basis.  Dr. 
 
         Krigsten then diagnosed claimant's condition as carpal tunnel 
 
         syndrome on the left, probably secondary to a severe fracture of 
 
         the left wrist at an early age.  He did not recommend surgery.  
 
         On August 20, 1986, Dr. Krigsten assigned claimant a ten percent 
 
         permanent partial impairment of the left wrist or hand.
 
         
 
              On May 12, 1980, Dr. Paulsrud diagnosed claimant as having 
 
         stenosing tenosynovitis of the first dorsal compartment, acute 
 
         DeQuervain's disease, right wrist.  Dr. Paulsrud performed a
 
         
 
         release of the right dorsal compartment on July 21, 1980.  He 
 
         released claimant to return to work on September 4, 1980.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Initially, we note that, defendant Second Injury Fund in its 
 
         brief appears to argue that claimant's left hand condition did 
 
         not result from his work but from a preexisting distal fracture. 
 
          The point appears moot as the Fund joined in.the prehearing 
 
         report stipulation that claimant's January 18, 1985 injury was 
 
         causally related to claimant's claimed disability.  Further, 
 
         ample medical and lay evidence exists supporting claimant on the 
 
         causal connection issue.  For that reason, also, the Fund's 
 
         contention in its brief is rejected.
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   5
 
         
 
         
 
         
 
              We reach the question of whether claimant is entitled to 
 
         benefits under our Second Injury Fund Act, sections 85.63 through 
 
         85.69. Before the Second Injury Fund is triggered three 
 
         requirements must be met.  First, the employee must have lost or 
 
         lost the use of a hand, foot, leg or eye.  Second, the employer 
 
         must sustain another loss or loss of use of another member or 
 
         organ through a compensable injury.  Third, permanent disability 
 
         must exist as to both the initial injury and the second injury. 
 
         See Allen v. Second Injury Fund, 34 Biennial Rep., Iowa Indus.  
 
         CommOr 15 (1980); Ross v. Servicemaster-Story Co., 34 Biennial 
 
         Rep. Iowa Industrial CommOr 273 (1979).  The Act exists to 
 
         encourage the hiring of handicapped persons by making the current 
 
         employer responsible only for the amount of disability related to 
 
         an injury occurring under his employ as if there were no 
 
         preexisting disability.  See Anderson v. Second Injury Fund, 262 
 
         N.W.2d 789, 791 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
         Compensation-Law and Practice, section 17-1.
 
         
 
              The fund is responsible for the difference between total 
 
         disability and disability for which the employer at the time of 
 
         the second injury is responsible.  Section 85.64.  Second Injury 
 
         Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970), Fulton v. 
 
         Jimmy Dean Meat Co., File No. 755039, filed July 28, 1986.
 
         
 
              Claimant has shown a loss of use of his right hand as a 
 
         result of claimant's right dorsal compartment release on July 21, 
 
         1980.  The loss appears to be minor in that claimant returned to 
 
         his same job shortly after his surgery and was able to perform it 
 
         without serious difficulty.  Indeed, claimant was able to work 
 
         with his right hand only following his left wrist surgery.  
 
         Claimant does report continued clamming of his right hand in a 
 
         number of different circumstances including cold conditions and 
 
         prolonged work.  Dr. Paulsrud has opined claimant has a ten 
 
         percent permanent partial impairment of the upper extremities due 
 
         to chronic occupational synovitis, an opinion which also supports 
 
         claimant's argument that he had suffered a loss of use.  An 
 
         injury to the wrist is generally considered an injury to the hand 
 
         and not to the upper extremity.  Elam v. Midland Mfg., 2 Iowa 
 
         Industrial Commissioner Report 141 (Appeal Dec. 1981) under the 
 
         AMA Guides to permanent partial impairment, a ten percent 
 
         permanent partial impairment to the upper extremity results in an 
 
         eleven percent permanent partial impairment to the hand.  Because 
 
         claimant's first loss of use is to a scheduled member, permanent 
 
         disability can be assessed under section 85.34(2)(1).
 
         
 
              Claimant has also shown a loss of use of his left wrist 
 
         following his 1986 carpal tunnel release.  Again, the loss 
 
         appears minor in that claimant returned to his loin wrapping job 
 
         six weeks after surgery and worked that job to the plant closing. 
 
          Our Act does not require a major impairment of the member, 
 
         however; only that a loss of use actually exist.
 
         
 
              The parties stipulated claimant's left wrist injury resulted 
 
         in permanent partial disability of ten percent of the left hand. 
 
          As the Fund joined in that stipulation, it is bound by the 
 
         stipulation.  We note, however, that Dr. Krigsten opined claimant 
 
         had a ten percent permanent partial impairment to the left hand 
 
         and Dr. Paulsrud that claimant had a ten percent permanent 
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   6
 
         
 
         
 
         impairment of the upper extremity.   As the loss is to a 
 
         scheduled member, the opinions are sufficient to demonstrate 
 
         permanent disability pursuant to section 85.34(2)(1).
 
         
 
              The three prerequisites for Fund liability are present.  As 
 
         claimant's present condition involves the combined effects of 
 
         both his first and second injuries, it results in industrial 
 
         disability to the body as a whole.  The effects of the second 
 
         injury are limited to the scheduled member, however.  When the 
 
         second injury is considered independently of any other 
 
         conditions, claimant is limited to benefits under section 
 
         85.34(2)(1).  Therefore, his employer is liable for that amount 
 
         only without regard to consideration of the other factors for 
 
         determining industrial disability.  Mich Coal, Fulton Supra.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         25? (1963).
 
         
 
         
 
         
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability. 
 
               This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Claimant returned to work for his employer shortly after his 
 
         second injury.  He continued working until the employer's plant 
 
         closed.  He admits he likely would still be working for the 
 
         employer had the plant not closed.  Claimant testified he now 
 
         could only work at a janitor's job or a box job with his previous 
 
         employer.  The fact that he continued work at his loin wrapping 
 
         job until the plant's closing and the nature of claimant's 
 
         current employment suggests claimant could perform other duties 
 
         as well, however.  Indeed, claimant is now employed and doing 
 
         limited skills manual labor much as he would have used in his 
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   7
 
         
 
         
 
         Floyd Valley job.  While claimant's exact wage at Floyd Valley is 
 
         not in the record, one suspects it was considerably more than the 
 
         $4.50 per hour he is now earning and at least equal to the $7.25 
 
         per hour he earned as a union helper.  Claimant also has lost 
 
         union benefits and job security.  However, these like claimant's 
 
         wage decline itself, are more effects of the general economic 
 
         loss to all former Floyd Valley workers than effects attributable 
 
         to claimant's injuries.  Claimant is a high school graduate with 
 
         prior experience as a janitor.  He apparently believes he could 
 
         return to janitorial work if such were available.  He has 
 
         difficulties with literacy skills, but appears an intelligent man 
 
         who has coped with these problems successfully in the past.  
 
         While claimant's limited literacy skills certainly hamper his 
 
         ability to be retrained for nonphysically demanding work, they do 
 
         not appear to have seriously handicapped him in his prior work 
 
         activities nor do they appear to handicap him in performing work 
 
         for which he remains qualified.  Nevertheless, claimant's job 
 
         marketability is certainly less than that of a worker competing 
 
         in the same job market who has had no prior injuries.  When the 
 
         overall pool of available workers is reviewed, claimant will 
 
         likely be considered less favorably than a worker who has no 
 
         preexisting handicaps.  Hence, claimant has a real loss of 
 
         earning capacity on account of his injuries which is found to be 
 
         20 percent of the body as a whole or 100 benefit weeks.  As 
 
         noted, claimant's second injury is limited to the scheduled 
 
         member and represents a permanent partial disability of 10 
 
         percent of the left hand or 19 benefit weeks.  Claimant's first 
 
         injury represents a permanent partial disability of 11 percent of 
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   8
 
         
 
         
 
         the right hand or 20.9 benefit weeks.  Both those amounts are 
 
         deducted from the 100 benefit weeks to arrive at the Fund's 
 
         liability which is 60.1 benefit weeks.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant injured his right hand in May 1980 and underwent a 
 
         release of the right dorsal compartment on July 21, 1980.
 
         
 
              Claimant was able to return to his loin wrapping job shortly 
 
         after his dorsal compartment release.
 
         
 
              Claimant continues to have clamming in his right hand in 
 
         cold conditions and after working for prolonged periods.
 
         
 
              Claimant had a carpel tunnel release of the left hand 
 
         October 4, 1985.
 
         
 
              Claimant worked one-handed with his right hand for six weeks 
 
         following that release.
 
         
 
              Claimant then returned to his loin wrapping job and 
 
         continued working that job until Floyd Valley closed in Spring 
 
         1986.
 
         
 
              Claimant has secured other employment at a lesser wage and 
 
         with less employee benefits and security than he had at Floyd 
 
         Valley.
 
         
 
              Claimant has past experience as a janitor and could continue 
 
         to work as a janitor.
 
         
 
              Claimant has limited literacy skills but had functioned 
 
         adequately in both prior and present employment despite that 
 
         limitation.
 
         
 
              Claimant's limited literacy skills would make retraining for 
 
         less physically demanding work more difficult.
 
         
 
              Claimant is 46 years old and a high school graduate.
 
         
 
         
 
              Claimant has a 11 percent scheduled member permanent 
 
         disability to the right hand; claimant has a 10 percent scheduled  
 
         member permanent disability to the left hand.
 
         
 
              Claimant is competing with noninjured workers for jobs in a 
 
         limited job market.
 
         
 
              Claimant has a loss of earnings capacity of 20 percent of 
 
         the body as a whole as a result of the combined effects of his 
 
         first and second injuries.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant's loss of use of his left hand and his loss of use 
 
         if his right hand result in a total industrial disability of 
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page   9
 
         
 
         
 
         twenty percent (20%) permanent partial impairment of the body as 
 
         a whole.
 
         
 
              The compensable value of claimant's loss of use of his right 
 
         hand is twenty point nine (20.9) weeks; the compensable value of 
 
         claimant's loss of use of his left had is nineteen (19) weeks.
 
         
 
              The obligation of the Second Injury Fund of Iowa is sixty 
 
         point one (60.1) weeks at the rate of two hundred twenty-three 
 
         and 96/100 dollars ($223.96) due after Floyd Valley Packing Co. 
 
         has paid claimant its obligation as to the loss of use of the 
 
         left hand and the expiration of twenty point nine (20.9) weeks 
 
         thereafter.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              The Second Injury Fund of Iowa pay claimant permanent 
 
         partial disability benefits for sixty point one (60.1) weeks at 
 
         the rate of two hundred twenty-three and 96/100 dollars 
 
         ($223.96)
 
         with those payments to commence as set forth in the above 
 
         conclusions.
 
         
 
              The Second Injury Fund of Iowa pay any accrued benefits in a 
 
         lump sum together with interest pursuant to section 85.30.
 
         
 
              The Second Injury Fund of Iowa pay costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         formerly Industrial Commissioner Rule 500-4.33.
 
         
 
              Defendants file claim activity reports as requested by the 
 
         agency.
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of March, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             HELEN JEAN WALLESER
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr . LeRoy J. Sturgeon
 
         Attorney at Law
 
         632-40 Badgerow Bldg.
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         Page  10
 
         
 
         
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         200 Home Federal Building
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     3202
 
                                                     Filed 3-30-87
 
                                                     Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILLIAM J. HODGINS,
 
         
 
              Claimant,
 
         
 
         VS.                                           File No. 798203
 
         
 
         FLOYD VALLEY PACKING CO.,                  A R B I T R A T I O N
 
         
 
              Employer,                                 D E C I S I O N
 
         
 
         and
 
         
 
         NORTHWESTERN NATIONAL
 
         INSURANCE-CHUBB GROUP
 
         OF INSURANCE COMPANIES,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3202
 
         
 
              Second Injury Fund case where claimant established loss of 
 
         use of first and second member and permanent disability from each 
 
         as a result of separate left and right carpal tunnel surgeries.  
 
         Twenty percent permanent partial disability awarded with Second 
 
         Injury Fund liable for 60.1 weeks.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. HODGINS,
 
         
 
              Claimant,
 
                                                 File No. 798203
 
         vs.
 
                                                   R U L I N G
 
         FLOYD VALLEY PACKING CO.,
 
                                                       O N
 
              Employer,
 
                                              A P P L I C A T I O N
 
         and
 
                                                      F O R
 
         NORTHWESTERN NATIONAL
 
         INSURANCE - CHUBB GROUP                R E H E A R I N G
 
         OF INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
              An appeal decision in this case was filed on August 23, 
 
         1988, affirming the decision of the deputy industrial 
 
         commissioner.  Defendant Second Injury Fund of Iowa has requested 
 
         a rehearing and oral argument.  Specifically, defendant Second 
 
         Injury Fund of Iowa has requested a ruling on each of the 
 
         arguments raised in its appeal brief.  Claimant has filed a 
 
         resistance to the application for rehearing and request for oral 
 
         argument.
 
         
 
              The Second Injury Fund of Iowa requests a determination on 
 
         appeal that section 85.64 requires an "intervening hiring" before 
 
         second injury fund liability can be established, and that 
 
         claimant in this action is not entitled to benefits from the 
 
         second injury fund since both of his injuries occurred while 
 
         employed by the same employer.  However, the language of section 
 
         85.64 does not require that the two injuries occur while employed 
 
         by different employers.  No authorities are cited in support of 
 
         the Fund's interpretation of section 85.64.  The second injury 
 
         fund's argument that section 85.64 requires an "intervening 
 
         hiring" is determined to be without merit.
 
         
 
              The Second Injury Fund of Iowa also argues that claimant has 
 
         not suffered a "handicap" from his first injury because he 
 
         returned to work and later accepted an allegedly more demanding 
 
         job.  Initially, it is noted that section 85.64 does not use the 
 
         term "handicap."  Rather, that section refers to a claimant who 
 
         has "lost the use of" enumerated members, and later suffers 
 
         permanent "disability" from a compensable injury.  "Disability" 
 
         and "handicap" are not synonymous.  The second injury fund argues 
 
         that since claimant returned to work after his initial injury and 
 
         was later reassigned to what may have been more physically 
 

 
        
 
        HODGINS V. FLOYD VALLEY PACKING CO.  
 
        PAGE 2
 
 
 
 
 
         demanding work, claimant has not suffered a prior "handicap or 
 
         preexisting disability."  Depending on the nature and extent of 
 
         the disability, a claimant could quite conceivably suffer an 
 
         injury and resulting loss of earning capacity and still be able 
 
         to return to the work he was performing at the time of the 
 
         injury, of later engage in more strenuous physical activity.  The 
 
         record in this case shows that claimant did suffer a preexisting 
 
         disability or loss of earning capacity from his earlier injury 
 
         but nevertheless was able to continue working for his employer.  
 
         Defendant Second Injury Fund of Iowa's argument in this regard is 
 
         also found to be without merit.
 
         
 
              The Second Injury Fund of Iowa's argument that the 
 
         decision of the deputy commissioner should be reversed because 
 
         "there was no permanent industrial disability" is contradicted 
 
         by the record.  Claimant was given a permanent partial 
 
         impairment rating for both hand injuries.  Claimant is unable 
 
         to work in various occupations as a result of those 
 
         impairments.  Claimant has suffered an industrial disability.
 
         
 
              The Second Injury Fund of Iowa asserts that claimantOs 
 
         loss of earning capacity was caused by a layoff and not by 
 
         claimant's injuries.  "Loss of earning capacity" is not 
 
         synonymous with "loss of earnings."  An actual loss of earnings 
 
         is but one indication.of a loss of earning capacity.  
 
         Claimant's loss of earnings may very well be caused in whole or 
 
         in part by the plant layoff.  Claimant's loss of earning 
 
         capacity is what is compensated under section 85.64.  
 
         Claimant's loss of earning capacity is caused by his injuries 
 
         and not by a subsequent capacity layoff.
 
         
 
              THEREFORE, defendant Second Injury Fund of Iowa's 
 
         application for rehearing and request for oral argument is 
 
         denied.
 
         
 
         
 
              Signed and filed this 19th day of August, 1988.
 
         
 

 
         
 
         
 
         
 
         HODGINS V. FLOYD VALLEY PACKING CO.
 
         PAGE   3
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        DAVID E. LINQUIST
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. LeRoy J. Sturgeon
 
         Attorney at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         VELMA SPURRIER,
 
         
 
             Claimant,
 
                                                 FILE NO. 798220
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         EAGLE SIGNAL,
 
                                                 D E C I S I O N
 
             Employer,
 
             Self-Insured,
 
             Defendant
 
         _________________________________________________________________
 
          
 
                                     INTRODUCTION
 
         
 
             This is a proceeding in arbitration brought by Velma 
 
         Spurrier, claimant, against Eagle Signal, employer and 
 
         self-insured defendant for benefits as a result of an alleged 
 
         injury which occurred on August 27, 1984.  A hearing was held on 
 
         October 16, 1986 in Davenport, Iowa and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         claimant's exhibits 1 through 28; defendant's exhibits 1, 2, 3, 
 
         4, 5, 6, 8, 12, 14, 15 & 16; the testimony of claimant's 
 
         witnesses, Velma Spurrier (claimant), Shirley Klein (co-employee 
 
         and group leader), Blanche Wacker (co-employee, foreman and 
 
         supervisor), Patrick Doherty (a rehabilitation counselor) and the 
 
         testimony of the defendant's witnesses, Patricia West (employment 
 
         supervisor), James Neifing (manager of personnel and industrial 
 
         relations), Phillip Peterson (supervisor), Gentiel (John) M. 
 
         DeGryse (plant manager).  Claimant's exhibit 25, which is two 
 
         electronic solid state boards, is being stored by claimant's 
 
         attorney, but photographs of these two boards have been 
 
         substituted in place of the actual boards.  Defendant's exhibit 
 
         16, which is a video tape of the final assembly operation, is 
 
         being stored by defendant's counsel.
 
         
 
         
 
                                 STIPULATIONS
 
         
 
             The parties stipulated to the following matters:
 
         
 
             That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
             That the rate of compensation in the event of an award is 
 
         $210.01 per week.
 
         
 
             That all requested medical benefits have been paid.
 
         
 
             That the defendant has paid the claimant disability income 
 
         from an employee non-occupational accident and sickness plan at 
 
         the rate of $120 per month from September 4, 1984 to May 6, 1985 
 
         in the total amount of $3,119.99 and that the defendant is 
 
         entitled to a credit for this amount in the event of an award.
 

 
         
 
             That the defendant has paid the claimant disability 
 
         retirement payments at the rate of $390 per month since April 1, 
 
         1985 in the total amount of $7,410.00 is stipulated.  However, 
 
         the defendant's entitlement to a credit under Iowa Code section 
 
         85.38(2) for these payments is disputed.
 
         
 
                                   ISSUES
 
         
 
             The issues submitted by the parties for determination at the 
 
         time of hearing are as follows:
 
         
 
             Whether the claimant sustained an injury on August 27, 1984 
 
         which arose out of and in the course of her employment with the 
 
         employer.
 
         
 
             Whether the alleged injury is the cause of any temporary or 
 
         permanent disability.
 
         
 
             Whether the claimant is entitled to any temporary or 
 
         permanent disability benefits and, if so, the nature and extent 
 
         of the benefits to which she is entitled.
 
         
 
             Whether the claimant is an odd-lot employee.
 
         
 
             Whether the claimant satisfied the notice requirement of Iowa 
 
         Code section 85.23 has been asserted as an affirmative defense by 
 
         the defendant.
 
         
 
             Whether the defendant is entitled to a credit under Iowa Code 
 
         section 85.38(2) for the retirement disability benefits at the 
 
         rate of $390 per month since April 1, 1985 in the total amount of 
 
         $7,410.00 at the time of the hearing.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
             Claimant was born January 17, 1928.  She was 56 years old at 
 
         the time of the injury and 58 years old at the time of the 
 
         hearing.  She is married and has two adult children.  She 
 
         completed the seventh grade and has not received any additional 
 
         schooling since then.  She did take a soldering course and was 
 
         awarded a certificate while working for Eagle Signal.  She 
 
         declined to attempt to obtain a G.E.D. certificate as a part of 
 
         vocational rehabilitation.  Her prior employments include two 
 
         production work type of jobs for two other employers.  She 
 
         started to work for Eagle Signal about June 28, 1951 and has 
 
         worked there continuously for 33 years until her injury on
 
         August 27, 1984.  She took disability retirement from this 
 
         employment on March 6, 1985.  She has applied for social security 
 
         disability retirement but was denied.
 
         
 
             All of her jobs with Eagle Signal involved the use of her 
 
         hands.  Earlier jobs included working on the teletype line, 
 
         working on the relay line, and line tester.  In the mid 1970's 
 
         she began stuffing boards in solid state.  This job entailed 
 
         sitting and placing a number of small parts onto different size 
 
         boards eight hours a day except for 20 minutes for break and 30 
 
         minutes for lunch.  These small parts were in a lazy susan in 
 
         front of her or beside her.  She also found it necessary to work 
 
         with her head cocked to the right.  This was a group incentive or 
 
         group piece work job so you had to keep up or the other employees 
 
         would be unhappy with you.  Her last job with the company was 
 
         called final assembly of timers.  Various witnesses said that it 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   3
 
         
 
         
 
         was similar to stuffing boards in solid state, but that stuffing 
 
         boards was much more difficult.  A video was shown at the hearing 
 
         of a lady performing the final assembly of timers job.
 
         
 
             Claimant's exhibit 27 is a detailed description compiled by 
 
         the claimant of the movements of the right arm in various jobs 
 
         with the employer.  The claimant assembled relays for the first 
 
         20 years of her employment with the employer and this job 
 
         involved the use of the right arm 18,240 times in an eight hour 
 
         day.  The next four years as a line tester also required 
 
         extensive use of the right arm but the number of movements was 
 
         not calculated.  Then claimant's remaining nine years with the 
 
         employer of stuffing boards in solid state required 25,600 right 
 
         arm movements per day.  Two solid state boards were shown at the 
 
         hearing and were marked claimant's exhibit 25.  However, claimant 
 
         stated that these were not the same boards that she stuffed at 
 
         Eagle Signal.  Rather, these two boards which were shown at the 
 
         hearing were some telephone equipment boards which she had 
 
         located simply to make an illustration of what a solid state 
 
         board looked like and she demonstrated the work that she did with 
 
         a board of this type.
 
         
 
             Claimant was rear ended in an automobile accident on December 
 
         13, 1967 (Claimant's Exhibit 11, page 1).  As a result of that 
 
         accident there was disc protrusion at C5-6 on the right (Cl.  Ex. 
 
         11, P. 2).  Byron W. Rovine, M.D., a neurologist, performed an 
 
         anterior cervical interbody decompression and fusion at C5-6 on 
 
         February 13, 1969 (Cl.  Ex. 11, p. 3).  Claimant testified that 
 
         she totally recovered from the surgery.  She could do her job at 
 
         work, cut the grass at home and go bowling.  She had no residual 
 
         pain.  She stated that she had a full range of motion except that 
 
         she could only put her chin half way down to her chest.  She had 
 
         no pain when she started the job in solid state.  Sometime after 
 
         she started in solid state while stuffing boards her neck began 
 
         to hurt.  It affected the right side of her face and neck.  Her 
 
         right eye watered.  As time went by it became gradually worse.  
 
         In June of 1984 her shoulder began to hurt.  She first noticed it 
 
         when she was picking up parts under her bench at the end of the 
 
         day and got a twinge in her right shoulder.  On another occasion 
 
         she reached behind to get a unit and the pain in her right 
 
         shoulder caused her to grab it with her left hand.  The shoulder 
 
         got worse as time went by and claimant went to see her family 
 
         physician, John F. Collins, M.D., a general practitioner in 
 
         Davenport in June of 1984.
 
         
 
             Shirley Klein, claimant's group leader on final assembly, and 
 
         Blanche Wacker, claimant's group leader, foreman and supervisor 
 
         in solid state, both testified that they observed and heard the 
 
         claimant complain of pain in her neck and right shoulder 
 
         aggravated by her work, but claimant continued to do her job and 
 
         was able to maintain the pace.  Neither of these two witnesses 
 
         reported their knowledge to the personnel department or to their 
 
         supervisor.
 
         
 
             The office notes of Dr. Collins show that he saw claimant on 
 
         June 13,, 1984.  She complained of numbness in her hands and arms 
 
         and discomfort in her neck.  It was worse on the right.  He 
 
         prescribed medication and told her to wear the cervical collar 
 
         which she had at home.    She began using this collar after the 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   4
 
         
 
         
 
         automobile accident and continued to use it after that for neck 
 
         comfort.  X-rays were taken.  Dr. Collins suspected cervical 
 
         problems at C6-7.  He referred claimant to Dr. Rovine again on 
 
         August 17, 1984 (Cl.  Ex. 9).
 
         
 
             Dr. Rovine saw claimant on or about August 27, 1984.  
 
         Claimant described pain in her right interscapular area, right 
 
         shoulder, and upper arm as well as diffuse numbness in the right 
 
         upper extremity.   X-rays revealed some degenerative arthritic 
 
         findings principally at C6-7.  Dr. Rovine concluded:
 
         
 
                 I believe Mrs. Spurrier has symptoms for two reasons.  
 
             First of all, I believe she has some degenerative disc 
 
             disease at the C6-7 level which is causing her 
 
             interscapular pain.  However, the major problem seems to 
 
             be in the right shoulder.  She may have some bursitis 
 
             and probably also some rotator cuff symptomatology as 
 
             well.  There is nothing to suggest a recurrent disc 
 
             extrusion. (Cl.  Ex. 4)
 
         
 
             Dr. Rovine ordered two weeks of rest and medication but 
 
         claimant did not show significant improvement.  On September 10, 
 
         1984, Dr. Rovine again ruled out disc symptoms and referred 
 
         claimant back to Dr. Collins for treatment of bursitis and 
 
         rotator cuff syndrome and authorized two more weeks away from 
 
         work.  Although Dr. Rovine described her job in some detail, he 
 
         did not specifically relate the complaints to her employment in 
 
         either of his two reports (Cl.  Ex. 3 & 4).
 
         
 
             Claimant testified that after she saw Dr. Rovine on August 
 
         27, 1984, she and her husband had a meeting with Pat West, 
 
         employment supervisor and James Neifing, personnel manager on 
 
         that same day.   She gave them the letter from Dr. Rovine dated 
 
         August 27, 1984 which read as follows:
 
         
 
                                                        8-27-84
 
         
 
                  Velma Spurrier is in my care for pain in her right 
 
              shoulder and arm due to arthritis in her neck & 
 
              shoulder.She has been instructed to rest at home, and 
 
              is not to work until further notice.  She will be seen 
 
              for follow up in two weeks.
 
                                           Byron W. Rovine, M.D. 
 
              (Cl. Ex.7)
 
         
 
             At the meeting claimant said she told them her job was 
 
         causing her problems.  She told them that her shoulder hurt and 
 
         that she could no longer reach for anything anymore.  Her husband 
 
         also told them that Dr. Rovine had said it was related to the 
 
         work she was doing.
 
         
 
             West testified that when claimant's husband called to arrange 
 
         a meeting he indicated that it was about a work related claim.  
 
         West further testified that claimant stated at the meeting that 
 
         reaching at work caused her pain and that she needed two weeks 
 
         off work in the form of a leave of absence.  She also verified 
 
         that claimant's husband said at the meeting that Dr. Rovine said 
 
         the work that claimant was doing caused the flare-up.  West made 
 
         a summary of what transpired at the meeting dated August 27, 1984 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   5
 
         
 
         
 
         at 2:50 p.m. This summary records that claimant's husband did say 
 
         that the doctor indicated that the flare-up was due to the work 
 
         which claimant was doing (Cl.  Ex. 17).
 
         
 
             Neifing testified claimant's husband did, in fact, state that 
 
         the flare-up of arthritis claimant was having was caused by her 
 
         work and that is why he had a meeting.
 
         
 
             Phillip Peterson, who was the claimant's supervisor in solid 
 
         state, along with West and Neifing, all three testified that 
 
         claimant never made a formal report of injury to them.  
 
         Furthermore, they had no knowledge or reason to believe that she 
 
         was having any difficulty of any kind.
 
         
 
             Claimant's exhibit 23 is a handwritten note dated June 21, 
 
         1984, 3:30 p.m. written by someone with the initials K D M. 
 
         DeGryse identified K D M as Karl Madsen of the personnel 
 
         department.  Madsen states in the note that he observed claimant 
 
         wearing a neck collar brace; that she said she did it at work 
 
         about two years ago; but he found no record of it.
 
         
 
             Claimant, West and Neifing, all three agreed that claimant 
 
         was given the choice of filing a workers' compensation claim or 
 
         proceeding under the company group non-occupational health plan.  
 
         When it was explained to claimant that she could receive the 
 
         leave of absence that she was requesting and receive immediate 
 
         benefits under the non-occupational plan, and that a workers' 
 
         compensation claim might involve controversy and delays, claimant 
 
         opted not to file a workers' compensation claim, but instead 
 
         elected to proceed under the non-occupational group health plan 
 
         (Cl.  Ex. 17).
 
         
 
             Claimant took a leave of absence for a month beginning August 
 
         27, 1984 to September 24, 1984.  She worked a full day on 
 
         September 25, 1984 and worked until noon on September 26, 1984 at 
 
         which time she left the job and never returned.  She testified 
 
         that she hurt so bad on the right side of her head, neck and arm 
 
         that she could not work.  Claimant said she has arthritis now and 
 
         that she will have it for the rest of her life.  Surgery would 
 
         not correct it.  Dr. Collins told her that as long as she kept 
 
         working it would only get worse.  Dr. Collins then referred 
 
         claimant to Richard R. Ripperger, M.D., an orthopedic surgeon in 
 
         Davenport, for treatment of her right shoulder.  Dr. Ripperger 
 
         first saw claimant on November 15, 1984.  He performed an 
 
         arthrogram on December 4, 1984 and diagnosed a rotator cuff tear.  
 
         He performed surgery on her right shoulder on December 18, 1984 
 
         (Cl.  Ex. 6).
 
         
 
             Claimant testified that she was paid non-occupational income 
 
         disability benefits for approximately six months up until March 
 
         of 1985.  Then on March 6, 1985, she was paid disability 
 
         retirement benefits and she is still receiving them.  The 
 
         prehearing report indicates that the income disability payments 
 
         were $120 per month and that the disability retirement benefits 
 
         are $390 per month.
 
         
 
             Defendant's exhibit 6 is a copy of a portion of the 
 
         retirement plan.  DeGryse testified that disability retirement 
 
         benefits and workers' compensation benefits were mutually 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   6
 
         
 
         
 
         exclusive.  However, defendant's exhibit 6 makes no mention of 
 
         the effect of workers' compensation payments on the disability 
 
         retirement plan benefits.  Cecilia Blaskovich, a vocational 
 
         rehabilitation specialist reports that the claimant told her on 
 
         August 5, 1986 that claimant would receive $390 per month of long 
 
         term disability for the remainder of her life regardless of any 
 
         other benefits that she receives.
 
         
 
             Claimant testified that she would like to work but cannot 
 
         because she has so much pain in her right neck and shoulder.  She 
 
         applied at Job Service but they are waiting for her doctor 
 
         reports before contacting her.  She received several job 
 
         possibilities from Blaskovich and looked into some of them but 
 
         for some reason each one she looked into had some reason she 
 
         could not do it.
 
             Claimant stated that she wore her neck collar to most of the 
 
         interviews.  Claimant conceded that the onset of her symptoms in 
 
         June of 1984 coincided with her husband's retirement in the same 
 
         month and year.  Claimant testified that she and her husband were 
 
         campers and that they went camping during the one month leave of 
 
         absence in August and September of 1984.  Claimant also confirmed 
 
         that she took a trip to Arizona in December of 1985 with her 
 
         husband in their motor home to visit relatives.
 
         
 
             Defendant's exhibit 4 is a typed, unsigned anonymous letter 
 
         from an unknown writer which was received at Eagle,Signal on 
 
         January 13, 1986.   The writer suggests and alleges primarily by 
 
         insinuation and innuendo that claimant is attempting to defraud 
 
         the employer and insurance carrier by making a false claim that 
 
         her work caused her arthritis.  This letter prompted defendant to 
 
         place claimant under surveillance in Arizona on February 4, 1986, 
 
         February 5, 1986 and March 1, 1986.  However, the investigation 
 
         revealed nothing more than claimant could freely open and close 
 
         the car door with her right hand.
 
         
 
             Patrick D. Doherty, a rehabilitation counselor, testified at 
 
         the hearing and submitted a written report which is marked 
 
         claimant's exhibit 10.  He saw claimant on two occasions.  He 
 
         stated that claimant suffers from arthritis particularly 
 
         localized in her right shoulder and spine.  His test placed her 
 
         in the average intelligence range, which is good for a person 
 
         with a seventh grade education.  He took into consideration the 
 
         work restrictions mentioned by Dr. Collins and Dr. Ripperger and 
 
         concluded as follows:
 
         
 
                  In reviewing the labor market access for Mrs. 
 
              Spurrier, I feel she is unemployable.  I believe she is 
 
              not able to find suitable employment based on her age, 
 
              (57) education, (7 th. grade) work experience, (factory 
 
              work) and physical restrictions (2 pounds or 15 pounds 
 
              depending on Dr.). 
 
              (Cl.  Ex. 10)
 
         
 
             To that conclusion he added this:   "I feel if Mrs. Spurrier 
 
         could obtain employment it would be so limited in quality or 
 
         quantity that it would preclude steady employment.  Without 
 
         steady employment Mrs. Spurrier has no material earning capacity" 
 
         (Cl.  Ex. 10).
 
         
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   7
 
         
 
         
 
             The witness conceded that he never actually tried to find a 
 
         job for claimant or to place her in any type of employment.  He 
 
         granted that the area economy was not good and that several 
 
         capable people cannot find employment.  Doherty was asked if the 
 
         fact that claimant and her husband are both currently receiving 
 
         pensions; that they can spend the winter where it is warm; that 
 
         her husband is already retired; that they are free to travel 
 
         together and have the means to do it would affect her motivation. 
 
         Doherty responded that he did not address the claimant's 
 
         motivation to work in his evaluation.
 
         
 
             Ceclia Blaskovich, a rehabilitation specialist, and president 
 
         and founder of Medisult, testified by deposition (Defendant's Ex. 
 
         14) and submitted written material (Def.  Ex. 8).  She 
 
         interviewed claimant and her husband (Def.  Ex. 8, pp. 7 & 8); 
 
         Dr. Ripperger (Def.  Ex. 8, pp. 9 & 10); John DeGryse and visited 
 
         Eagle Signal plant in Davenport (Def.  Ex. 8, p. 10).  She 
 
         examined other medical and hospital records and the report of Dr. 
 
         Doherty (Def.  Ex. 14, Deposition Ex. 2).  Blaskovich reported 
 
         that she identified and presented 32 potential jobs to claimant 
 
         (Def.  Ex. 8, pp. 12-20).  Claimant presented herself at several 
 
         of the potential jobs wearing a neck collar/brace.  Some the jobs 
 
         were not within her limitations.  However, some of the jobs were 
 
         within her physical ability yet an application was not completed 
 
         (Def.  Ex. 8, p. 10).  Blaskovich showed Dr. Ripperger job 
 
         descriptions for management/trainee, desk clerk, receptionist, 
 
         telephone sales, telemarketer and general merchandise 
 
         salesperson.  Dr. Ripperger personally approved all of these job 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   8
 
         
 
         
 
         classifications with his initials on August 6, 1986 with 
 
         authorization to return to work on August 6, 1986 (Def.  Ex. 8, 
 
         pp. 21 through 26).
 
         
 
             Blaskovich prepared a job description for claimant's former 
 
         job of assembler-traffic control at Eagle Signal along with 
 
         Richard Erickson, an industrial engineer.  Dr. Ripperger by his 
 
         signature approved this job as suitable for the claimant on 
 
         September 12, 1986 with an authorization to return to work on 
 
         September 12, 1986 (Def.  Ex. 8, p. 4).  John DeGryse testified 
 
         that this job was now recently opened again and he would be 
 
         willing to consider hiring the claimant for it if her weight 
 
         restriction is 15 pounds as defined by Dr. Ripperger rather than 
 
         2 pounds as defined by Dr. Collins.  Dr. Ripperger indicated on 
 
         the Medisult Physician Consult Form that claimant obtained 
 
         maximum healing in December of 1985 and that she could perform 
 
         the job described by Blaskovich within her physical restrictions 
 
         of no repetitive lifting or overhead work and no lifting over 15 
 
         pounds (Def.  Ex. 8, p. 27).
 
         
 
             Dr. Collins found that claimant's job at Eagle Signal 
 
         aggravated the arthritic condition of her neck and right 
 
         shoulder.  He stated that she sustained a 10 percent permanent 
 
         impairment of the shoulder and a five percent permanent 
 
         impairment of the neck for a total over all impairment of 15 
 
         percent of the body as a whole due to the June of 1984 injury 
 
         (Cl.  Ex. 1; Cl.  Ex. 14, pp. 19-24 & p. 45).  He said that she 
 
         should not do overhead work or lift more than two pounds due to 
 
         the shoulder.  She should do no bending or stooping and lift no 
 
         more than five pounds due to the neck (Cl.  Ex. 1).  As to causal 
 
         connection he felt that the arthritis in the neck was aggravated 
 
         by the wear and tear aspect of the use of the arm, doing the same 
 
         thing over and over again (Cl. Ex.14, p.11).  Dr. Collins also 
 
         formed the
 
         
 
         opinion that claimant's job aggravated the arthritis in her right 
 
         shoulder (Cl.  Ex. 14, pp. 14 & 15).  Dr. Collins said in his 
 
         opinion that the continual use aggravated the arthritis in both 
 
         her shoulder and her neck (Cl.  Ex. 14, pp. 16-18).
 
         
 
             Dr. Collins also related that claimant did continue to have 
 
         pain in her neck following the 1969 cervical decompression and 
 
         fusion.    He is the one who prescribed a neck collar for her to 
 
         wear at that time and instructed her to continue to wear it at 
 
         her discretion.  This is not uncommon for people who have had 
 
         neck injuries.  It helps cut down the pain and discomfort that 
 
         they have (Cl.  Ex. 14, pp. 29 & 30).  Dr. Collins believed that 
 
         the arthritis in her neck developed shortly after the 1969 
 
         cervical fusion and on account of it (Cl.  Ex. 14, p. 34).  When 
 
         he last saw claimant on September 18, 1985, she complained also 
 
         of arthritic pain in both hands and knees (Cl.  Ex. 14, pp. 46 & 
 
         47).  The video was set up for Dr. Collins to view but 
 
         defendant's counsel chose not to show it to Dr. Collins (Cl.  Ex. 
 
         14, p. 42).
 
         
 
             Dr. Ripperger briefly summarized his findings in a letter 
 
         dated September 9, 1985 (Cl.  Ex. 5).  As to causal connection he 
 
         said that he did not know if her job accelerated her arthritic 
 
         condition in her neck and right shoulder, however, according to 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page   9
 
         
 
         
 
         the history claimant gave him the job aggravated her symptoms.  
 
         Restrictions would have to be determined on a trial and error 
 
         basis.   A reasonable starting point would be no repetitious 
 
         lifting, no overhead work, and no lifting over 15 pounds.  He 
 
         stated that he did not advise her to quit her job.  He declined 
 
         to give a rating until after one year from the surgery (Cl.  Ex. 
 
         5).  Then on November 13, 1985, Dr. Ripperger gave a 40 percent 
 
         permanent impairment rating secondary to the neck and shoulder 
 
         condition (Cl.  Ex. 12).  In his depositions he said he was 
 
         unable to say how much, if any, of her impairment was due to the 
 
         aggravation of her arthritis due to her job, the preexisting 
 
         arthritis condition, and the earlier fusion in 1969 (Cl.  Ex. 13, 
 
         pp. 10-12).
 
         
 
             Dr. Ripperger gave more detailed information in his 
 
         deposition (Cl.  Ex. 13).  His final diagnosis on her neck was 
 
         degenerative arthritis of her cervical spine and a fusion at 
 
         C5-C6.  His final diagnosis on her right shoulder was (1) 
 
         degenerative arthritis; (2) degenerative cuff disease; (3) status 
 
         post rotator cuff repair; and (4) status post excision of distal 
 
         clavical (Cl.  Ex. 13, p. 5).  Dr. Ripperger stated that he did 
 
         not know if her job accelerated any arthritic changes but he 
 
         believed it aggravated the shoulder and neck condition due to the 
 
         repetitive use of her right upper extremity and also from working 
 
         with her head tilted to one side for eight hours a day (Cl.  Ex. 
 
         13, pp. 6 & 7).  But then on cross-examination Dr. Ripperger did 
 
         say it not only increased her symptomatic condition, but in 
 
         addition with regard to the neck and the cuff disease probably 
 
         speeded up, accelerated or worsened structural damage as well 
 
         (Cl.  Ex. 13, p. 27).  But then again he later testified on 
 
         redirect examination that he did not know if there was a 
 
         permanent aggravation of her symptoms or structural damage 
 
         because he did not see her before November of 1984.  However, he 
 
         did concede that there was an increase in her symptoms which has 
 
         persisted that is definitely associated with her work temporarily 
 
         at least.  However, establishing a true cause and effect 
 
         relationship is hard to do and actually almost impossible to do 
 
         irrespective of what information he might have (Cl.  Ex. 13, pp. 
 
         34-36).  Dr. Ripperger testified that he did not know if motion 
 
         in itself would cause increased wear and tear on the joints but 
 
         it can aggravate the underlying arthritic condition in terms of 
 
         pain (Cl.  Ex. 13, pp. 7-10).
 
         
 
             In his deposition Dr. Ripperger rated the claimant with a 25 
 
         percent permanent impairment of the neck, but he could not break 
 
         down how much was due to the earlier fusion, the earlier 
 
         degenerative arthritic condition and the aggravation of the 
 
         arthritis due to the injury.  He did not know if any of it could 
 
         be attributable to the aggravation caused by her job (Cl- Ex. 13, 
 
         pp. 11 & 12).  Later, in a letter to Blaskovich, he said the 1969 
 
         decompression and fusion could be rated at a 15 percent 
 
         impairment in his opinion (Cl.  Ex. 15).
 
         
 
             Dr. Ripperger did not know if the job aggravated the 
 
         degenerative arthritis in her shoulder, but stated that it could 
 
         have caused an aggravation as to pain (Cl.  Ex. 13, p. 17).  He 
 
         did not know if her job aggravated the degenerative cuff disease 
 
         but said that it "could aggravate the underlining cuff disease" 
 
         (Cl.  Ex. 13, p. 14).  Then later in his testimony he responded 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  10
 
         
 
         
 
         to questions indicating that yes her work did aggravate the 
 
         degenerative arthritis in her shoulder and her degenerative cuff 
 
         disease (Cl.  Ex. 13, p. 20).  He had no opinion on whether the 
 
         job caused the cuff repair or not (Cl.  Ex. 13, pp. 18 & 20) or 
 
         the excision of the distal clavical (Cl.  Ex. 13, pp. 20 & 21).
 
         
 
             Dr. Ripperger rated the right shoulder at 20 percent of the 
 
         body as a whole (Cl.  Ex. 13, p. 22).  Again he could not factor 
 
         out how much, if any, of this impairment was due to the 
 
         aggravation of the underlining condition because he had not seen 
 
         claimant before November of 1984.
 
         
 
             Dr. Ripperger testified that a healing plateau after a 
 
         rotator cuff repair would be 9 to 15 months after surgery and the 
 
         surgery was performed on December 18, 1984 (Cl.  Ex. 13, p. 24).  
 
         Dr. Ripperger reviewed the video of the final assembly of timers 
 
         and concluded that the work depicted on the video would 
 
         symptomatically irritate or aggravate either the neck or right 
 
         shoulder condition of the claimant (Cl.  Ex. 13, pp. 33 & 34).
 
         
 
             Peter D. Wirtz, M.D., a board certified orthopedic surgeon, 
 
         examined and evaluated claimant for the defendant.  He submitted
 
         a written report on July 17, 1986 (Def.  Ex. 12) and testified by 
 
         deposition on October 10, 1986 (Def.  Ex. 15).  He examined 
 
         claimant on July 17, 1985 and reviewed the video at the time of 
 
         the deposition on October 10, 1986.  His examination, however, 
 
         was limited to the right shoulder and x-rays of the right 
 
         shoulder and it did not include her neck (Cl.  Ex. 15, pp. 6 & 
 
         7).  Dr. Wirtz determined that claimant had an impairment of five 
 
         percent of the body as a whole due to the shoulder.  He allowed 
 
         one percent for ten degrees loss of forward flexion in the right 
 
         shoulder and four percent for weakness (Def.  Ex. 12; Cl.  Ex. 
 
         15, pp. 8 & 9).  He did not see the need for any restrictions 
 
         (Cl.  Ex. 15, p. 9).  Dr. Wirtz believed that the claimant could 
 
         perform the jobs which Dr. Ripperger had approved at the request 
 
         of Blaskovich of assembler-traffic control, store salesperson, 
 
         management trainee, receptionist, telephone sales and 
 
         telemarketing (Cl.  Ex. 15, pp. 10-12).  The doctor testified 
 
         that the claimant's work would not cause degenerative cuff 
 
         disease or a rotator cuff tear nor would it aggravate her 
 
         cervical disc condition (Cl.  Ex. 15, pp. 13 & 14).  He found no 
 
         arthritis in her shoulder (Cl.  Ex 15, p. 21).  He did not use 
 
         the orthopedic guide which Dr. Ripperger used, but instead Dr. 
 
         Wirtz followed the AMA Guide for his ratings (Cl.  Ex. 15, pp. 20 
 
         & 21).
 
         
 
                             APPLICABLE LAW AND ANALYSIS
 
         
 
             Iowa Code section 85.23 provides as follows:
 
         
 
             Unless the employer or his representative shall have actual 
 
         knowledge of the occurrence of an injury received within ninety 
 
         days from the date of the occurrence of the injury, or unless the 
 
         employee or someone on his behalf or a dependent or someone on 
 
         his behalf shall give notice thereof to the employer within 
 
         ninety days from the date of the occurrence of the injury, no 
 
         compensation shall be allowed.
 
         
 
             Lack of notice or failure to give notice is an affirmative 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  11
 
         
 
         
 
         defense.  Delong v. Iowa State Highway Commission, 299 Iowa 700, 
 
         295 N.W. 91 (1940); Reddick v. Grand Union Tea Company, 230 Iowa 
 
         108, 295 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., 
 
         Thirty-third Biennial Report of Industrial Commissioner 191 
 
         (1977).  Supervisory persons are considered to be representatives 
 
         of the employer.  Actual knowledge of the employer or his 
 
         representatives does away with the necessity of notice.  Hobbs v. 
 
         Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Frank v. 
 
         Carpenter, 192 Iowa 1398, 86 N.W. 647 (1922).  Klein and Wacker 
 
         were friends and co-employees of the claimant but they both 
 
         testified they were also supervisors.  Klein was a group leader 
 
         in final assembly of timers.  Wacker was a group leader, foreman 
 
         and supervisor while stuffing boards in solid state.  They 
 
         testified that they observed and heard the claimant complain on a 
 
         number of occasions that her job aggravated the pain in her neck 
 
         and right shoulder.  Even though they failed to report these 
 
         incidents to personnel or higher authorities, nevertheless, they 
 
         were representatives of the company and had actual knowledge of 
 
         the claimant's injuries or aggravations of injury at the time 
 
         that they occurred.  Therefore, claimant was not required to give 
 
         formal written notice.
 
         
 
             Furthermore, in Jacques v. Farmer's Lumber & Supply Co., 242 
 
         Iowa 548, 47 N.W.2d 236 (1951) it was determined that the 90 day 
 
         period does not begin to run until the employee finds out about 
 
         or discovers the injury.  Substantially, the same rule in 
 
         somewhat more detail appears in Volume III, Larson, section 
 
         78.40, paragraph 15-155: The time period for notice or claim does 
 
         not begin to run until the claimant, as a reasonable person, 
 
         should recognize the nature, seriousness and probable compensable 
 
         character of his injury or disease.  The rule in Jacques and the 
 
         rule in Larson quoted above were adopted and further clarified in 
 
         Robinson v. Department of Transportation, 296 N.W.2d 809, 812 
 
         (Iowa 1980).  There the court said the reasonableness of the 
 
         claimant's conduct is judged in the light of his or her own 
 
         education and intelligence.  Claimant must know enough about the 
 
         injury to realize it is both serious and work connected.
 
         
 
             In this case claimant testified (and she is believed) that 
 
         her first knowledge that workers' compensation was involved was 
 
         at the time of the meeting on August 27, 1984 with Neifing and 
 
         West.  She and her husband wanted the meeting to obtain a leave 
 
         of absence as recommended by Dr. Rovine and to gain the benefits 
 
         of the non-occupational group plan.  Her first thought or 
 
         knowledge of workers' compensation was at that meeting when 
 
         Neifing and West mentioned it.  Therefore, claimant reported the 
 
         injury at the time she first learned that it might be compensable 
 
         under the workers' compensation law.  Therefore, the claimant did 
 
         give timely notice as required by Iowa Code section 85.23.
 
         
 
             In addition, McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
         368, 374 (Iowa 1985) not only judicially adopted the cumulative 
 
         injury rule but held that the date of occurrence of injury is 
 
         when the employee is no longer able to work due to the injury.  
 
         Claimant clearly appears to have a cumulative injury from 
 
         repetitive use of her right arm in numerous reaching movements 
 
         with her neck tilted to the right.  This history is mentioned by 
 
         all of the doctors.  The date of injury then is August 27, 1984 
 
         which is the first day claimant was no longer able to work due to 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  12
 
         
 
         
 
         the injury.  Claimant reported the injury to the employer as work 
 
         related on this very date.  Therefore, claimant did give notice 
 
         within 90 days of the occurrence of the injury.
 
         
 
             Defendant has not sustained the burden of proof that claimant 
 
         failed to give proper notice as required by Iowa Code section 
 
         85.23. On the contrary, claimant has proven that the notice 
 
         requirement was satisfied in three different ways as set forth 
 
         above.  Consequently, it is found that the employer had actual 
 
         notice and also the claimant did give proper notice within 90 
 
         days as required by Iowa Code section 85.23.
 
         
 
             An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
             Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on August 27, 1984 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
             The injury must both arise out of and be in the course of the 
 
         employment.  Crowe v. DeSoto Consol.  Sch.  Dist., 246 Iowa 402, 
 
         68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa 
 
         Report.  See also Sister Mary Benedict v. St. Mary's Corp., 255 
 
         Iowa 847, 124 N.W.2-d 548 (1963) and Hansen v. State of Iowa, 249 
 
         Iowa 1147, 91 N.W.2d 555 (1958).
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  13
 
         
 
         
 
         
 
             The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
             The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
             "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971), 
 
         Musselman, 261 Iowa 352, 154 N.W.2 128 (1967).
 
         
 
             The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
                  While a personal injury does not include an 
 
              occupational disease under the Workmen's Compensation 
 
              Act, yet an injury to the health may be a personal 
 
              injury. [Citations omitted.] Likewise a personal injury 
 
              includes a disease resulting from an injury .... The 
 
              result of changes in the human body incident to the 
 
              general processes of nature do not amount to a personal 
 
              injury.  This must follow, even though such natural 
 
              change may come about because the life has been devoted 
 
              to labor and hard work.  Such result of those natural 
 
              changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 
         
 
                     
 
                  A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the 
 
              body, the impairment of health, or a disease, not 
 
              excluded by the act, which comes about, not through the 
 
              natural building up and tearing down of the human body, 
 
              but because of a traumatic or other hurt or damage to 
 
              the health or body of an employee. [Citations omitted.] 
 
              The injury to the human body here contemplated must be 
 
              something, whether an accident or not, that acts 
 
              extraneously to the natural processes of nature, and 
 
              thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the 
 
              body.
 
         
 
             An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  14
 
         
 
         
 
             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, 7 0- 1 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962) .
 
         
 
             Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist, 218 Iowa 724, 254 N.W. 35 (1934).  See also 
 
         Auxier v. Woodward State Hosp.  Sch., 266 N.W.2d 139 (Iowa 1978); 
 
         Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
         v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. 
 
         Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
             When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler, 252 Iowa 
 
         613,620, 106 N.W.2d 591, 595 (1960).
 
             An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).  
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
             The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 27, 1984 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
             However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  
 
         However), the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Id. at 907.  Further, 
 
         the weight to be given to such an opinion is for the finder of 
 
         fact, and that may be affected by the completeness of the premise 
 
         given the expert and other surrounding circumstances.  Bodish, 
 
         257 Iowa 516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
             Dr. Collins, the general practitioner who has been the 
 
         claimant's personal physician for approximately 20 years, was 
 
         quite clear, definitive and unequivocal.  He found that the 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  15
 
         
 
         
 
         claimant's repetitive work caused an aggravation of the 
 
         preexisting arthritic condition in her neck and right shoulder.  
 
         He also found the injury was the cause of a five percent 
 
         permanent impairment in the neck and a 10 percent permanent 
 
         impairment in the right shoulder.  He imposed a five pound weight 
 
         restriction due to the neck and a two pound weight restriction 
 
         due to the right shoulder.
 
         
 
             Dr. Rovine found that claimant had arthritis in her neck and 
 
         right shoulder.  He did not say it was caused by or aggravated by 
 
         work.  Therefore, it could be said that his evidence is neutral 
 
         on whether the work caused an injury and whether the injury 
 
         caused the disability because he was silent on these points in 
 
         his reports.  He did not establish causation, but at the same 
 
         time he did not deny causation.  If anything other than
 
         
 
         
 
         
 
         neutral his evidence implies that there was a causal connection 
 
         that the work at least aggravated the prior arthritic condition 
 
         because his history contained quite a bit of detail on the 
 
         movements the claimant made at work and he did in fact order her 
 
         to cease working.  If the job was not aggravating her preexisting 
 
         arthritic condition, then why was it necessary to take her off 
 
         work?  Furthermore, claimant and her husband asserted to Neifing 
 
         and West that Dr. Rovine told them that her complaints were 
 
         caused by work.  Neifing and West accepted this statement and 
 
         offered her the choice of a workers' compensation claim or 
 
         benefits under the non-occupational group health plan.  Thus the 
 
         implications that flow from Dr. Rovine's treatment are that the 
 
         claimant's work did at least aggravate the preexisting arthritis 
 
         condition, based upon (1) Dr. Rovine's note (Cl.  Ex. 7) taking 
 
         her off work; (2) claimant and employer's response to the note by 
 
         calling a meeting because of an alleged work related injury; and 
 
         (3) the notes that West and Neifing put in the personnel file at 
 
         that time identifying this as a work related injury (Cl.  Ex. 
 
         17).
 
         
 
             Dr. Ripperger, a board certified orthopedic surgeon, said 
 
         that he did not know if claimant's job accelerated any arthritis 
 
         changes, but he believed that it aggravated these symptoms of 
 
         pain in both the right shoulder and neck due to the repetitive 
 
         use of her right arm and from working with her head tilted to the 
 
         right (Cl.  Ex. 5; Cl.  Ex. 13, pp. 6 & 7).  Then later in his 
 
         testimony he also stated that her work not only aggravated the 
 
         symptoms but also speeded up, accelerated or worsened actual 
 
         structural damage as well as in her neck and shoulder (Cl.  Ex. 
 
         13, p. 27) which symptoms still persisted at the time of the 
 
         deposition (Cl.  Ex. 13, p. 35).  Therefore, Dr. Ripperger did 
 
         find in effect that the work caused an aggravation injury to her 
 
         neck and right shoulder.
 
         
 
             Dr. Ripperger could not be pinned down on whether the work 
 
         injury caused or did not cause a permanent impairment either by 
 
         his deposition testimony (Cl.  Ex. 13) or by his written report 
 
         to claimant's attorney (Cl.  Ex. 5 & 12) or his report to 
 
         Blaskovich (Def.Ex. 8, p. 27).  He did assign an impairment 
 
         rating for the neck and shoulder of 40 percent one year after the 
 
         surgery by a written report on November 13, 1985 (Cl.  Ex. 12).  
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  16
 
         
 
         
 
         In his deposition he rated the neck at 25 percent (Cl.  Ex. 13, 
 
         p. 12) and the right shoulder at 20 percent (Cl.  Ex. 13, pp. 22 
 
         & 23) but he refused to break down or factor out the current 
 
         aggravation injury from the preexisting condition on either the 
 
         neck (Cl.  Ex. 13, pp. 11 & 12) or with respect to the right 
 
         shoulder (Cl.  Ex. 13, P. 23).  Later he told Blaskovich that the 
 
         1967 decompression and fusion would be rated at 15 percent (Cl.  
 
         Ex. 15).  Dr. Ripperger could not allocate because he did not 
 
         examine or know claimant before November of 1984.  Even if he did 
 
         it would be difficult to establish a cause and effect 
 
         relationship (Cl.  Ex. 13, pp. 34-36).  Therefore, Dr. Ripperger 
 
         neither confirmed or denied that the claimant's aggravation 
 
         injury to her neck and right shoulder were the cause of any 
 
         permanent impairment.  He did concede however that the 
 
         symptoms still persisted up to the time of his testimony 
 
         (Cl.  Ex. 13, p. 35) which implies some possible impairment 
 
         and disability.
 
         
 
             Dr. Wirtz reviewed the video and determined that the final 
 
         assembly of timers job would not cause either the right shoulder 
 
         problem or the neck problem.  He found no arthritis in her 
 
         shoulder.  He gave a permanent impairment rating of five percent 
 
         of the right shoulder.  He did not examine her neck or give a 
 
         rating for the neck.  He did not state whether she had arthritis 
 
         in her neck or not.
 
         
 
             Based on the foregoing evidence, it is found that claimant 
 
         did sustain the burden of proof by a preponderance of the 
 
         evidence that she did suffer an aggravation injury to the 
 
         arthritic condition in her neck and right shoulder due to the 
 
         repetitive nature of her work for the employer.  Dr. Collins' 
 
         testimony is clear, definitive and unequivocal.  The results of 
 
         Dr. Rovine's examination and the actions taken by the claimant 
 
         and the company are clearly indications of a work related injury.  
 
         Dr. Ripperger's testimony established that the claimant suffered 
 
         an aggravation of her arthritis in her neck and shoulder due to 
 
         her employment.  The testimony of Dr. Wirtz must be discounted.  
 
         Not only is he a forensic evaluating doctor who only saw the 
 
         claimant once, but he did not examine her neck, and the video he 
 
         saw was only the final assembly job and not the solid state job.  
 
         How much he knew about the movements in the solid state job was 
 
         not established.  His examination and comments appear to be 
 
         cursory.
 
         
 
             Claimant has suffered temporary disability and is entitled to 
 
         temporary disability benefits.  The healing period in this case 
 
         began on the date of the injury August 27, 1984 and continued to 
 
         December 1, 1985, the date which Dr. Ripperger told Blaskovich 
 
         that it was medically indicated that significant improvement from 
 
         the injury was no longer anticipated (Def.  Ex. 8, p. 27) Iowa 
 
         Code section 85.34(l).
 
         
 
             It is also found that the claimant's work injury did cause 
 
         some permanent impairment.  Dr. Collins rates the neck at five 
 
         percent and the right shoulder at ten percent for a total of 15 
 
         percent of the body as a whole.  Dr. Ripperger has assigned an 
 
         impairment rating of 25 percent for the neck and a 20 percent for 
 
         the right shoulder but cannot say how much, if any, is 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  17
 
         
 
         
 
         attributable to the instant injury.  He declined to find any 
 
         permanent impairment due to the aggravation injury, but did state 
 
         that her symptoms have persisted.  Therefore, his ratings are of 
 
         little value, but do indicate considerable impairment for some 
 
         reason.  Dr. Wirtz did not rate the neck but assigned a five 
 
         percent permanent impairment rating for the shoulder.  The 
 
         uncontradicted testimony of Dr. Collins, the statement of Dr. 
 
         Ripperger that the claimant's symptoms have persisted, the 
 
         foregoing ratings of all of the doctors, coupled with the 
 
         claimant's testimony and the testimony of the other witnesses in 
 
         this case (especially Klein and Wacker), do establish that the 
 
         work injury was the cause of some permanent impairment and 
 
         disability.
 
         
 
             If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "'It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
             Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  18
 
         
 
         
 
         inability to engage in employment for which he is fitted. Olson, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
 
         
 
             The functional impairment ratings of Dr. Collins and Dr. 
 
         Wirtz are not large.  Dr. Ripperger's impairment ratings cannot 
 
         be used because he could not say how much, if any, was due to 
 
         this injury.  Dr. Rovine did not rate the claimant.
 
         
 
             Claimant's age of 57 makes it more difficult to find work.  
 
         It also brings her closer to retirement age, and from the 
 
         evidence presented, it appears as if she may have already 
 
         retired.  Consideration must be given to the employee's plans for 
 
         retirement, Swan v. Industrial Engineering Equipment Co., IV Iowa 
 
         Industrial Commissioner Reports 353 (1984) as well as retirement 
 
         benefits being received.  McDonough v. Dubuque Packing Co., 
 
         VolumeEI, I Industrial Commissioner Decisions 152 (1984).
 
         
 
             Her seventh grade education reduces her employability but 
 
         still she has a good intelligence in spite of the lack of a 
 
         twelfth grade formal education.  However, she told both Doherty 
 
         and Blaskovich that she was not interested in studying for or 
 
         completing the requirements for her GED.  She is a well dressed 
 
         person, makes a good appearance and is personable.
 
         
 
             Her prior life long factory work reduces her transferable 
 
         skills, but Blaskovich identified 32 jobs that she thought the 
 
         claimant could perform.  Dr. Ripperger approved the job 
 
         descriptions and reported that claimant could perform her old job 
 
         as an assembler and also several other areas of work as well.  
 
         DeGryse
 
         
 
         
 
         said it is possible she could be employed by Eagle as an 
 
         assembler if she chose to follow Dr. Ripperger's 15 pound weight 
 
         restriction rather than Dr. Collins' two pound weight 
 
         restriction.
 
         
 
             Doherty said claimant was unemployable, but he admitted that 
 
         he did not address her motivation.  Claimant would have to give 
 
         up a $390 per month pension if she returned to work.  She and her 
 
         husband are both receiving pensions at this time.  They have a 
 
         motor home and camper.  They like to travel and do travel.  
 
         Claimant has constant pain from arthritis which apparently now 
 
         also effects her hands and knees.  Although claimant appeared at 
 
         some of the prospective employers wearing her neck brace 
 
         Blaskovich said she made no applications for the jobs that she 
 
         could do.  Employers are responsible for a reduction in earning 
 
         capacity caused by a work injury but they are not responsible for 
 
         a reduction in actual earnings because the employee resists 
 
         returning to work.  Williams v. Firestone Tire and Rubber Co., 
 
         III Iowa Industrial Commissioner Report 279 (1982).
 
         
 
             Claimant did not make out a prima facia case that there are 
 
         no jobs available to her in any well known branch of the labor 
 
         market.  Guyton v. Irving Jensen Construction Co., 373 N.W.2d 101 
 
         (Iowa 1985).  On the contrary, Blaskovich has proven that there 
 
         are a number of jobs that the claimant could do within her 
 
         qualifications and restrictions.  Nevertheless, claimant's 
 
         earning capacity has been reduced.  She frequently earned $10.00 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  19
 
         
 
         
 
         per hour.  The jobs now available range from minimum wage to 
 
         $4.00 or $5.00 per hour.
 
         
 
             Based on the foregoing factors it is determined that claimant 
 
         has sustained a 25 percent industrial disability to the body as a 
 
         whole.
 
         
 
             Iowa Code section 85.38(2) provides as follows:
 
         
 
                  Credit for benefits paid under group plans.  In the 
 
              event the disabled employee shall receive any benefits, 
 
              including medical, surgical or hospital benefits, under 
 
              any group plan covering nonoccupational disabilities 
 
              contributed to wholly or partially by the employer, 
 
              which benefits should not have been paid or payable if 
 
              any rights of recovery existed under this chapter, 
 
              chapter 85A or chapter 85B, then such amounts so paid 
 
              to said employee from any such group plan shall be 
 
              credited to or against any compensation payments, 
 
              including medical, surgical or hospital, made or to be 
 
              made under this chapter, chapter 85A or chapter 85B.  
 
              Such amounts so credited shall be deducted from the 
 
              payments made under these chapters.  Any 
 
              nonoccupational plan shall be reimbursed in the amount 
 
              so deducted.  This section shall not apply to payments 
 
              made under any group plan which would have been payable 
 
              even though there was an injury under this chapter or 
 
              an occupational disease under chapter 85A or an 
 
              occupational hearing loss under chapter 85B.  Any 
 
              employer receiving such credit shall keep such employee 
 
              safe and harmless from any and all claims or 
 
              liabilities that may be made against them by reason of 
 
              having received such payments only to the extent of 
 
              such credit.
 
         
 
             There are clearly three conditions which must be met before 
 
         credit may be allowed: (1) benefits received under a group plan; 
 
         (2) contributions to that plan made by the employer; and (3) the 
 
         benefits should not have been paid if workers' compensation was 
 
         received.  Hebensperger v. Motorola Communications and 
 
         Electronics, Inc., II Iowa Industrial Commissioner Report 187, 
 
         189 (1981).  Roma L. Dyvad v. Southfield Care Center & St. Paul 
 
         Fire & Marine Ins. Co., File 736345, Appeal Decision filed August 
 
         9, 1986.
 
         
 
             Claimant received benefits under a group plan.  All 
 
         contributions to the plan were made by the employer according to 
 
         the testimony of DeGryse.  He further testified that this plan 
 
         and workers' compensation are mutually exclusive.  He stated that 
 
         you cannot receive benefits under both plans.  This was 
 
         contradicted by what the claimant told Blaskovich.  Blaskovich 
 
         reported that claimant told her that she would receive the $390 
 
         of disability retirement income for the remainder of her life 
 
         regardless of any other benefits she received (Def.  Ex. 8, p. 
 
         8).  Examination of the plan documents submitted by defendants is 
 
         silent as to whether the employee can or cannot receive 
 
         disability income and workers' compensation benefits at the same 
 
         time (Def.  Ex. 6).  The plan documents are the best evidence of 
 
         what the plan provides.  Iowa Code section 85.38(2) speaks to 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  20
 
         
 
         
 
         benefits which should not have been paid or payable if rights of 
 
         recovery existed under the workers' compensation act.  This 
 
         section expressly states that does not apply to payments which 
 
         would have been payable even though a compensable injury 
 
         occurred. McDonough v. Dubuque Packing Co., Volume I, I 
 
         Industrial Commissioner Decisions, page 152 (Filed September 2, 
 
         1984).  The defendant, who is the proponent of entitlement to a 
 
         credit, has failed to sustain the burden of proof that they are 
 
         entitled to the credit.  The testimony of DeGryse is contradicted 
 
         by the statement of the claimant to Blaskovich.  The plan 
 
         documents, which are the best evidence, contain no written 
 
         provisions supporting the claim for the credit.  Therefore, it is 
 
         found that defendants are not entitled to a credit for the 
 
         disability retirement benefits made to the claimant.
 
         
 
         
 
         
 
         
 
         
 
                                    FINDINGS OF FACT
 
         
 
             WHEREFORE, based upon the evidence presented  the  following
 
         findings of fact are made:
 
         
 
             That claimant began work for the employer on or about June 
 
         28, 1951 and retired on disability on March 6, 1985 after 
 
         approximately 33 years of active employment for the employer.
 
         
 
             That all of the claimant's jobs with the employer, especially 
 
         stuffing boards in solid state and her last job of final assembly 
 
         of timers required repetitive use of the right arm and shoulder.  
 
         Furthermore, stuffing boards required working with their head and 
 
         neck tilted to the right.
 
         
 
             Claimant developed arthritis in her neck following a cervical 
 
         decompression and fusion in 1969 due to an automobile accident 
 
         not related to her employment.
 
         
 
             That subsequently claimant developed arthritis also in her 
 
         right shoulder.
 
         
 
             That claimant has also now developed arthritis in her hands 
 
         and knees.
 
         
 
             That the claimant's work of stuffing boards in solid state 
 
         and the final assembly of timers materially aggravated the 
 
         preexisting arthritis in her neck and right shoulder.
 
         
 
             That the claimant was no longer able to work on August 27, 
 
         1984.
 
         
 
             That surgery was performed on her right shoulder on December 
 
         18, 1984 and that she reached maximum medical improvement after 
 
         the surgery on December 1, 1985.
 
         
 
             That Dr. Collins, a general practitioner and her personal 
 
         physician, determined that claimant suffered a five percent 
 
         permanent impairment of her neck and a 10 percent permanent 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  21
 
         
 
         
 
         impairment of her right shoulder due to an aggravation of the 
 
         arthritis in the neck and right shoulder.
 
         
 
             That several possible job opportunities were available but 
 
         claimant did not seriously try to become employed.
 
         
 
             That claimant and her husband are both retired and drawing 
 
         pensions, own a motor home and camping equipment and do travel 
 
         and camp.
 
         
 
              That arthritis has been diagnosed in claimant's neck, right 
 
         shoulder, knees and hands and that she suffers with arthritis 
 
         pain particularly in her neck and right shoulder regularly.
 
         
 
             That claimant's motivation to seriously seek employment is 
 
         very questionable under the circumstances.
 
         
 
             That claimant failed to demonstrate that she could not find 
 
         employment in any well known branch of the labor market.
 
         
 
             That claimant suffered an industrial disability of 25 percent 
 
         of the body as a whole as a result of the August 27, 1984 
 
         injury.
 
         
 
             That claimant's supervisors, Klein and Wacker, had knowledge 
 
         of the aggravation injury to the claimant's neck and right 
 
         shoulder.
 
         
 
             That claimant reported the injury to the employer on the same 
 
         date that she learned it might be work related which was on 
 
         August 27, 1984.
 
         
 
             That the disability income plan documents introduced into 
 
         evidence do not show that the claimant is not entitled to 
 
         benefits if she has a compensable injury under the workers' 
 
         compensation law.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
             WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
             The defendants failed to prove by a preponderance of the 
 
         evidence that the claimant failed to give notice as required by 
 
         Iowa Code section 85.23. On the contrary, claimant established 
 
         that: (1) defendants had actual knowledge of the injury; and (2) 
 
         that claimant gave notice both as required by the discovery rule 
 
         and as required by the cumulative injury rule.
 
         
 
             That claimant sustained the burden of proof by a 
 
         preponderance of the evidence that she suffered an aggravation of 
 
         the arthritis in her neck and right shoulder which arose out of 
 
         and in the course of her employment of stuffing boards in solid 
 
         state and in final assembly of timers.
 
         
 
             That the aggravation of the arthritis in her right shoulder 
 
         was the cause of temporary disability from the date of the injury 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  22
 
         
 
         
 
         on August 27, 1984 to the point when Dr. Ripperger determined she 
 
         had attained maximum medical improvement on December 1, 1985.
 
         
 
             That the aggravation injury to the neck and to the right 
 
         shoulder was the cause of permanent impairment and that the 
 
         claimant is entitled to permanent partial disability benefits for 
 
         25 percent industrial disability to the body as a whole.
 
         
 
             That the defendants did not sustain the burden of proof that 
 
         they are entitled to a credit under Iowa Code section 85.38(2) in 
 
         the amount of $7,410.00 for disability retirement benefits paid 
 
         to the claimant.
 
         
 
                                    ORDER
 
         
 
             WHEREFORE, IT IS ORDERED:
 
         
 
             That the defendants pay to claimant sixty-six (66) weeks of 
 
         healing period benefits for the period of August 27, 1984, the 
 
         date of the injury, to December 1, 1985, the date of so called 
 
         maximum medical improvement at the rate of two hundred ten and 
 
         01/100 dollars ($210.01) per week in the total amount of thirteen 
 
         thousand eight hundred sixty and 66/100 dollars ($13,860.66).
 
         
 
             That the defendants paid to claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of two hundred ten and 01/100 dollars ($210.01) per week in the 
 
         total amount of twenty-six thousand two hundred fifty-one and 
 

 
         
 
         
 
         
 
         SPURRIER V. EAGLE SIGNAL
 
         Page  23
 
         
 
         
 
         25/100 dollars ($26,251.25) commencing on December 2, 1985.
 
         
 
             That defendants are entitled to a credit in the amount of 
 
         three thousand one hundred nineteen and 99/100 dollars 
 
         ($3,119.99) for payments made under the non-occupational accident 
 
         and sickness plan as stipulated.
 
         
 
             That the defendants pay accrued benefits in a lump sum.
 
         
 
             That interest will accrue under Iowa Code section 85.30.
 
         
 
             That defendants will pay the costs of this action pursuant to 
 
         Division of industrial Services Rule 500-4.33, formerly Iowa 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
             That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1.
 
         
 
                    Signed and filed this 25th day of March, 1987.
 
         
 
         
 
                                             WALTER R. McMANUS, JR.
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
                      
 
         
 
             Copies To:
 
         
 
             Mr. James M. Hood
 
             Attorney at Law
 
             302 Union Arcade Bldg.
 
             Davenport, Iowa 52801
 
         
 
             Mr. Harry W. Dahl
 
             Attorney at Law
 
             974 73rd St., Suite 16
 
             Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
        
 
                                               1106;  1108.50;   1402.20
 
                                               1402.30; 1402.40; 1402.50
 
                                               1701; 1802; 1803; 2206; 2209 
 
                                               2801; 2802; 2803; 4100 
 
                                               Filed March 25, 1987
 
                                               WALTER  R.  MCMANUS,  JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         VELMA SPURRIER,
 
         
 
            Claimant,
 
                                                    FILE NO. 798220
 
         vs.
 
                                                 A R B I T R A T I 0 N 
 
         EAGLE SIGNAL,
 
                                                     D E C I S I 0 N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         _________________________________________________________________
 
         
 
         2801; 2802; 2803; 1402.50
 
         
 
              Claimant was not required to give notice when two 
 
         supervisors had actual knowledge even though supervisors failed 
 
         to notify personnel.  Employee did give notice for the discovery 
 
         rule on the day she discovered her condition was work related and 
 
         compensible.  She also gave notice on the first day she was 
 
         forced to leave work under the cumulative injury rule.
 
         
 
         1106; 1108.50; 1402-20; 1402.30; 1402.40; 1402.50; 2206; 2209
 
         
 
              Job was found to aggravate the arthritis in the neck and 
 
         shoulder of claimant who performed repetitive work for 33 years 
 
         with her hands and arms with her head tilted to the right.  
 
         Family doctor supported claimant 100 percent.  Neurosurgeon and 
 
         orthopedic surgeon were more elusive but the implications of what 
 
         they said and did supported a work related injury.  Defendantls 
 
         evaluating physician was cursory and faulty in some 'respects.
 
         
 
         1802
 
         
 
              Claimant awarded healing period benefits from date of 
 
         injury
 
         to when treating orthopedic surgeon pronounced maximum medical 
 
         improvement.
 
         
 
         1803
 
         
 
              Claimant was receiving retirement disability from the 
 
                                                
 
                                                         
 
         employer, her husband was retired on pension, she had applied for 
 
         social security retirement, she declined to study for a GED as 
 
         two counselors suggested and she did not seriously seek 
 
         employment with leads provided.  The treating physician awarded 
 
         15 percent permanent impairment.  Claimant allowed 25 percent 
 
         industrial disability.
 
         
 
         4100
 
         
 
              Claimant failed to make a prima facie case that she could 
 
         not find employment in the competitive labor market.  On the 
 
         contrary defendant proved she could.
 
         
 
         1701
 
         
 
              Defendant failed to prove entitlement to section 85.38(2) 
 
         credit for retirement disability benefits paid to claimant.  
 
         Plant manager's testimony was contradicted by statements of 
 
         claimant.  The partial plan document introduced in evidence 
 
         showed no entitlement to a credit.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM BAKER,                               File No. 798226
 
         
 
              Claimant,                                 A P P E A L
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         ARMOUR DIAL, INC.,                              F I L E D
 
         
 
              Employer,                                 MAY 20 1998
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         proceeding, and joint exhibits 1 through 22.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                     ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              1.  Whether the claimant established a causal connection 
 
         between his alleged disability and the injury of December 21, 
 
         1984.
 
         
 
              2.  Whether the claimant suffered a cumulative injury.
 
         
 
              3.  The extent of claimant's alleged disability as a result 
 
         of his injury of December 21, 1984.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
         
 
              Briefly stated, claimant worked for defendant Armour Dial 
 
         for 25 years.  His job for the years prior to December 21, 1984 
 
         was as a bean inspector.  Claimant's duties involved standing or 
 
         sitting while inspecting a moving line of beans for debris.  
 
         Claimant was also required to lift boxes of cans of corn beef 
 
         weighing approximately 36 pounds, open them and dump them into a 
 
         vat as part of the bean inspection duties.  Claimant testified 
 
         that although bean inspector was his primary occupation, he was 
 
         also assigned to other jobs within the plant, one of which 
 
         required him to lift weights of up to 100 pounds.
 
                                                  
 
                                                           
 
         
 
              Prior to December 21, 1984, claimant suffered lumbosacral 
 
         strain after lifting boxes at work in 1976, and was hospitalized. 
 
         In January 1982, claimant fell from a ladder and underwent 
 
         chiropractic treatment to his upper and lower back.  Claimant 
 
         missed five days of work in 1983 due to lumbosacral strain. 
 
         Claimant was able to return to full duty work after each of these 
 
         episodes.
 
         
 
              On December 21, 1984, claimant was assigned to the "rework 
 
         area," lifting boxes of meat weighing approximately 60 pounds, 
 
         when he felt the onset of immediate low back pain.  Claimant 
 
         reported the injury but continued to work until the plant was 
 
         closed shortly thereafter for two weeks for the holiday season. 
 
         Claimant returned to work when the plant reopened, but continued 
 
         to experience pain.
 
         
 
              Claimant was treated with muscle relaxants and physical 
 
         therapy by Dr. Kannenberg, and was given a lifting restriction of 
 
         not over 25 pounds and light duty.  Dr. Kannenberg referred 
 
         claimant to Koert R. Smith, M.D., an orthopedic surgeon.  On 
 
         February 7, 1985, Dr. Smith examined claimant's x-rays and 
 
         concurred with the course of treatment recommended by Dr. 
 
         Kannenberg.  Claimant continued under the care of both Dr. 
 
         Kannenberg and Dr. Smith, and engaged in a regimen of physical 
 
         exercise throughout the summer and fall of 1985.  Claimant's 
 
         lifting restriction was later reduced to not over 10 pounds when 
 
         his pain persisted.
 
         
 
              Dr. Smith diagnosed degenerative disc disease based on the 
 
         history provided by claimant and the x-rays of claimant's lower 
 
         spine in 1984, and made the following opinions on claimant's 
 
         condition:
 
         
 
              Q.  Okay.  Now, Doctor, with regard to the history that was 
 
              given to you as far as his being injured on December 21st, 
 
              1985 (Sic) do you have an opinion within a reasonable degree 
 
              of medical certainty as to whether or not he, as of the last 
 
              time you saw him, has a permanent partial impairment of the 
 
              body as a whole?
 
         
 
              A.  Yes, I have an opinion.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  The opinion is that he does have a permanent partial 
 
              impairment of 5 percent.
 
         
 
              Q.  Okay.  And do you, within a reasonable degree of medical 
 
              certainty, have an opinion as to whether or not it is 
 
              consistent with and causally connected to the medical 
 
              history that was given to you of his injury of December 
 
              21st, 1985? (Sic)
 
         
 
              A.  Yes.
 
                                                  
 
                                                           
 
         
 
              Q.  Okay.  And what is that opinion?
 
         
 
              A.  I think it at least partially is causally connected to 
 
              that.
 
         
 
              Q.  Okay.
 
         
 
              A.  At the time I saw him, which was two months after his 
 
              injury, he did have X ray changes of disk space narrowing.  
 
              At that time those X ray changes would have been present -- 
 
              or pre-existed his injury in December because they don't 
 
              occur that rapidly.
 
         
 
              Q.  Okay.
 
         
 
              A.  Symptom-wise he was not symptomatic with his disk space 
 
              narrowing as evidenced the X rays, but was symptomatic and 
 
              has continued to be symptomatic since his injury.
 
         
 
              Q.  And is it the symptomotology [sic] that you're relating 
 
              as the causally connected aspect?
 
         
 
              A.  That's correct.
 
         
 
                 ....
 
         
 
              Q.  Based on the various examinations you've made of Mr. 
 
              Baker and the tests you've done thus far, do you find any 
 
              suggestion of a herniated disk in his low back?
 
         
 
              A.  The suggestion of the herniated disk is the fact that he 
 
              has narrowing of the disk space at the lumbosacral junction. 
 
              That in and of itself to me means that at some point in time 
 
              he's had a herniated disk.  If your question is does he have 
 
              neurologic deficit or radiating pain down his leg as a 
 
              result of that, at no time during the several times I've 
 
              examined him was there any evidence of nerve root irritation 
 
              as a result of the herniated disk.
 
         
 
              Q.  Were the X ray findings that you alluded to such that it 
 
              was your opinion that the narrowed disk space would have 
 
              been present prior to whatever injury or trauma was 
 
              sustained on December 21st, 184?
 
         
 
              A.  That's correct.
 
         
 
                   ....
 
         
 
              Q.  Have you reached an opinion based on your last exam as 
 
              to what is actually the cause of Mr. Baker's ongoing 
 
              complaint of low back pain at the belt level?
 
         
 
              A.  Yes.
 
         
 
                                                  
 
                                                           
 
              Q.  What is that?
 
         
 
              A.  The cause of his pain or his diagnosis is degenerative 
 
              disk disease.
 
         
 
              Q.  Would that degenerative disk disease, Doctor, have 
 
              pre-existed to some extent his injury of December, '84?
 
         
 
              A.  Yes.
 
         
 
              Q.  And I take it that's in part because of the narrowed 
 
              disk space that we just visited about?
 
         
 
              A.  That's based on the knowledge that those X ray changes 
 
              were present when I saw him between one and two months after 
 
              his injury.  Those X ray changes take at least a year if not 
 
              two years to develop.  Therefore they must have been there 
 
              prior to the onset of his symptoms on his injury in December 
 
              of 1984.
 
         
 
                   ....
 
         
 
              A.  My opinion is that most probable course of events was or 
 
              is that Mr. Baker had a longstanding degenerative disk 
 
              disease that was symptomatic in '82 and '83 and aggravated 
 
     
 
                            
 
                                                           
 
              again in 1984.
 
         
 
              Q.  That's entirely consistent with the normal pattern you 
 
              see in degenerative backs, isn't it, Doctor? That is, 
 
              periods of exacerbation followed by period when the patient 
 
              can get along relatively asymptomatic?
 
         
 
              A.  Yes.
 
         
 
              Q.  Doctor, I notice in your very first examination of the 
 
              patient you were fairly optimistic in your recommendations. 
 
              You offered the written observation that Mr. Baker should go 
 
              ahead and recover without any long term difficulty.  He has 
 
              obviously had long term difficulty.  Is that due in major 
 
              part to these degenerative changes we've been visiting 
 
              about, or is it due to the nature of.the basic lumbar strain 
 
              that he sustained?
 
         
 
              A.  It's more due to the underlying degenerative disk 
 
              disease process.
 
         
 
              Q.  Do you find, based on your last examination, any 
 
              continued signs of a true lumbar strain?
 
         
 
              A.  At the last time I saw him?
 
         
 
              Q.  Yes.
 
         
 
              A.  No.
 
         
 
         (Smith Deposition, pages 9-10, 12-13, 18-19)
 
         
 
              At his final medical examination in March 1986, claimant was 
 
         placed on a permanent work restriction prohibiting lifting over 
 
         20 or 30 pounds, and no "repetitive twisting, bending, and 
 
         prolonged standing."  (Joint Exhibit 12) Claimant's wife 
 
         testified that claimant can no longer perform household chores or 
 
         travel or sit for prolonged periods of time due to his back.
 
         
 
              Claimant continues in his bean inspection job, but no longer 
 
         lifts, opens and dumps the boxes of canned corn beef.  Claimant 
 
         testified that prior to December 21, 1984, he occasionally worked 
 
         in the "smoke house," which required him to lift sticks of 
 
         sausage weighing 35 pounds, but after December 21, 1984, he can 
 
         no longer perform those lifting duties.  Claimant stated that he 
 
         cannot sit or stand for a prolonged period of time, and cannot 
 
         lift heavy items.  Larry Hawes, claimant's coworker, testified 
 
         that prior to December 21, 1984, claimant would trade off jobs 
 
         with him, requiring claimant to lift and empty 100 pound bags, 
 
         but since December 21, 1984 claimant is no longer able to do so.
 
         
 
              Claimant attempted to bid into another job with defendant, 
 
         but was denied this position due to his medical restrictions. 
 
         Claimant testified that approximately two-thirds of the positions 
 
         at Armour-Dial are not available to him because of his medical 
 
                                                  
 
                                                           
 
         restrictions.  Claimant has not suffered a loss of earnings, and 
 
         now earns more per hour than he did on December 21, 1984.
 
         
 
              Claimant also earned approximately $2,000 per year as a 
 
         self-employed auctioneer, which he indicated has been somewhat 
 
         affected by his present inability to lift auction items.  
 
         Claimant was 48 years old at the time of the hearing and had a 
 
         high school education.  Claimant's past work experience over the 
 
         previous 25 years has been limited to manual labor.
 
         
 
              The parties stipulated that claimant received an injury 
 
         which arose out of and in the course of his employment; that 
 
         claimant suffered no loss of work as a result of the December 21, 
 
         1984 injury; that claimant was not seeking any temporary total 
 
         disability or healing period benefits; that the commencement date 
 
         for permanent partial disability benefits should be December 27, 
 
         1984; that if a permanent disability exists it is a disability of 
 
         the body as a whole; that claimant's rate of compensation would 
 
         be $222.00; and that all medical benefits have been paid by 
 
         defendant.
 
         
 
                               APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 21, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         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).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N. W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
                                                  
 
                                                           
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 Iowa 369, 112 N.W.2d 
 
         299; Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz v. 
 
         Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 
 
         724, 254 N.W. 35.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation 555(17)a.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 cited with approval a decision of the 
 
         industrial commissioner for the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
                                                  
 
                                                           
 
                   element to be considered . . .  In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251.  Barton v. Nevada Poultry, 253 
 
         Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
 
 
                               
 
                                                           
 
         earnings prior and subsequent to the injury; age;, education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              The "cumulative injury rule" may apply when disability 
 
         develops over a period of time.  The compensable injury is held 
 
         to occur at the later time.  For time limitation purposes, the 
 
         injury in such cases occurs when, because of pain or physical 
 
         disability, the claimant can no longer work.  McKeever Custom 
 
         Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
         
 
              Apportionment is limited to those situations where a prior 
 
         injury or illness independently produces some ascertainable 
 
         portion of the ultimate industrial disability which exists 
 
         following the employment-related aggravation.  Varied 
 
         Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).
 
         
 
              Expert testimony that a condition could be caused by a given 
 
         injury coupled with additional, non-expert testimony that 
 
         claimant was not afflicted with the same condition prior to the 
 
         injury may be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966).  Mere 
 
         speculation on future employment events cannot be a basis for 
 
         determining one's industrial disability.  A determination of 
 
         industrial disability is limited to an analysis of the claimant's 
 
         present condition. Umphress v. Armstrong Rubber Company, Appeal 
 
         Decision, August 1987.
 
         
 
              Industrial disability relates to a reduction in earning 
 
         capacity rather than a change in actual earnings.  Michael v. 
 
         Harrison County, 34 Biennial Report, Iowa Industrial Commissioner 
 
         218 (Appeal Decision 1979).
 
         
 
                                  ANALYSIS
 
                                                  
 
                                                           
 
         
 
              Claimant has the burden to prove that his disability is 
 
         causally related to his injury of December 21, 1984.  The record 
 
         shows by the testimony of Dr. Smith that claimant suffers from 
 
         degenerative disc disease which predated his December 21, 1984 
 
         injury.  Dr. Smith also testified that claimant's present 
 
         disability is at least in part caused by the injury of December 
 
         21, 1984.  This testimony is uncontroverted in the record.
 
         
 
              Although the weight to be given the testimony has been 
 
         affected by Dr. Smith's statement on cross-examination that he 
 
         was unaware of claimant's prior back injuries in 1982 and 1983, 
 
         Dr. Smith did not retract his statement as to causal connection. 
 
         Instead, he opined that claimant's back strains in 1982 and 1983 
 
         were symptomatic of his preexisting degenerative disc disease, 
 
         and that the injury of December 21, 1984 aggravated that disease.  
 
         Dr. Smith has given claimant a permanent lifting restriction and 
 
         a restriction on bending, twisting and prolonged standing based 
 
         on claimant's symptomatology after the December 21, 1984 injury 
 
         and the failure of that condition to improve.  Claimant's present 
 
         back condition is causally connected to his injury on December 
 
         21, 1984.
 
         
 
              The deputy's decision found that claimant had suffered a 
 
         gradual or cumulative injury.  On appeal, defendant asserts that 
 
         the record contains no medical evidence that establishes the kind 
 
         of repetitive trauma necessary for application of the McKeever 
 
         case. Claimant urges that the record shows an aggravation of a 
 
         preexisting condition occurring on December 21, 1984.
 
         
 
              As contemplated by McKeever, a gradual injury is caused by a 
 
         series of small traumatic injuries which have a cumulative effect 
 
         that eventually forces claimant to leave work.  Claimant's 
 
         present physical impairment is not the result of a cumulative 
 
         injury. Claimant has suffered an aggravation of his preexisting 
 
         degenerative disc disease.
 
         
 
              The extent of claimant's disability must be determined as 
 
         well.  Claimant has not suffered a loss of earning as a result of 
 
         his injury of December 21, 1984, and has not lost work as a 
 
         result of that injury.  He now has a permanent lifting 
 
         restriction and a restriction on bending, twisting and prolonged 
 
         standing.  Claimant has a five percent impairment rating of the 
 
         body as a whole.  He has returned to his old job, but only with 
 
         accommodations by fellow workers.
 
         
 
              The decision of the deputy addressed the issue of the "odd
 
         lot" doctrine as set forth in Guyton v. Irving Jensen Co., 323 
 
         N.W.2d 101, 105 (Iowa 1985).  Claimant is employed.  His 
 
         employment is substantially the same as it existed prior to the 
 
         injury.  It is not a "make work" position.  The fact that claimant 
 
         may at some point in the future no longer be employed by Armour 
 
         Dial has no effect on the determination of the extent of 
 
         industrial disability at the present, as this factor necessarily 
 
         requires speculation as to future events.  Claimant's industrial 
 
                                                  
 
                                                           
 
         disability is to be determined based on his present condition. 
 
         Claimant is not part of the hard core unemployed and any 
 
         implication that claimant is part of that group is inaccurate.  
 
         The odd-lot doctrine is not applicable in this case.
 
         
 
              Although he has not experienced a loss of earnings as a 
 
         result of the injury of December 21, 1984, claimant has 
 
         experienced a loss of earning capacity.  Presently, employers 
 
         would have to take claimant's physical restrictions into account 
 
         in any hiring decision in claimant's case.  Claimant's work 
 
         history is confined to manual labor jobs.  He has lost a portion 
 
         of his ability to perform those jobs.  Claimant was 48 at the 
 
         time of the hearing and had a high school education.  Based on 
 
         these and all other appropriate factors for determining 
 
         industrial disability, claimant is determined to have an 
 
         industrial disability of 20 percent.
 
         
 
              Claimant's degenerative disc disease predated his injury of 
 
         December 21, 1984.  However, the record shows that claimant was 
 
         able to return to full duty after each of his prior incidents of 
 
         lumbar strain.  Claimant had no work restrictions prior to 
 
         December 21, 1984.  Claimant was able to perform all of the tasks 
 
         assigned to him by his employer prior to December 21, 1984, 
 
         including an assignment that required him to lift weights of up 
 
         to 100 pounds.  Subsequent to his injury of December 21, 1984, 
 
         claimant has not been able to bid for jobs with defendant because 
 
         of his medical restrictions and claimant testified that he is now 
 
         unable to perform two-thirds of the jobs at defendant's plant. 
 
         Thus, it is concluded that claimant's preexisting degenerative 
 
         disc disease did not cause claimant disability prior to December 
 
         21, 1984.  An apportionment is not appropriate.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant received an injury arising out of and in the 
 
         course of his employment with defendant Armour-Dial on December 
 
         21, 1984.
 
         
 
              2.  Claimant's normal work was as a bean inspector and 
 
         required him to stand or sit while inspecting bean products for 
 
         debris and foreign objects.
 
         
 
              3.  Claimant's work also occasionally required him to work 
 
         in other departments, and occasionally required him to engage in 
 
         lifting weights from 35 to 100 pounds.
 
         
 
              4.  Claimant's work as a bean inspector occasionally 
 
         required him to lift boxes of canned corn beef weighing 
 
         approximately 36 pounds and to open and empty the cans.
 
         
 
              5.  Claimant injured his back in 1976 and received medical 
 
         treatment.
 
         
 
              6.  Claimant injured his back in 1982 and received 
 
         chiropractic treatment.
 
                                                  
 
                                                           
 
         
 
              7.  Claimant injured his back in 1983 and was off work.
 
         
 
              8.  Claimant was able to return to full duty work after his 
 
         back injuries in 1976, 1982 and 1983.
 
         
 
              9.  Claimant had no medical restrictions on the use of his 
 
         back or medical restrictions on bending, twisting or prolonged 
 
         standing prior to December 21, 1984.
 
         
 
              10.  Claimant was able to perform all of the duties of his 
 
         employment with defendant prior to December 21, 1984.
 
         
 
              11.  Claimant had degenerative disc disease prior to December 
 
         21,1984.
 
         
 
              12.  On December 21, 1984, claimant injured his back while 
 
         lifting items weighing approximately 60 pounds.
 
         
 
              13.  Claimant's injury of December 21, 1984 aggravated his 
 
         preexisting degenerative disc disease.
 
         
 
              14.  Claimant has a five percent impairment of the body as a 
 
         whole as a result of the injury on December 21, 1984.
 
         
 
              15.  Subsequent to December 21, 1984, claimant has a lifting 
 
         restriction not to lift over 25-30 pounds and not to bend, twist 
 
         or stand for a prolonged period of time.
 
         
 
              16.  Subsequent to December 21, 1984, claimant can no longer 
 
         perform the duties of bean inspector without accommodation by his 
 
         fellow employees.
 
         
 
                              
 
                                                           
 
              17.  Subsequent to December 21, 1984, claimant can no longer 
 
         perform duties he previously performed for defendant in other 
 
         departments that involve heavy lifting.
 
         
 
              18.  Claimant cannot perform two-thirds of the jobs 
 
         available at defendant's plant because of his medical 
 
         restrictions subsequent to his injury of December 21, 1984.
 
         
 
              19.  Claimant has not suffered a loss of earnings subsequent 
 
         to his injury of December 21, 1984.
 
         
 
              20.  Claimant has suffered a loss of earning capacity 
 
         subsequent to his injury of December 21, 1984.
 
         
 
              21.  Claimant was 48 years old at the time of the hearing 
 
         and had a high school education.
 
         
 
              22.  Claimant's rate of compensation was $222.00.
 
         
 
              23.  Claimant's preexisting degenerative disc disease did 
 
         not cause disability prior to December 21, 1984.
 
         
 
              24.  Claimant has a 20 percent industrial disability as a 
 
         result of his injury of December 21, 1984.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              On December 21, 1984, claimant suffered an injury which 
 
         aggravated a preexisting degenerative disc disease.
 
         
 
              Claimant did not suffer a gradual or cumulative injury.
 
         
 
              Claimant's present disability is causally related to his 
 
         injury of December 21, 1984.
 
         
 
              Claimant's preexisting degenerative disc disease did not 
 
         cause any industrial disability to claimant prior to December 21, 
 
         1984.
 
         
 
              Claimant has an industrial disability of 20 percent as a 
 
         result of his injury of December 21, 1984.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay unto claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at a rate of two hundred 
 
         twenty-two and no/100 dollars ($222.00) per week from December 
 
         27, 1984.
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
                                                  
 
                                                           
 
         sum.
 
         
 
              That defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              That defendant is to be given credit for benefits previously 
 
         paid.
 
         
 
              That defendant is to pay the costs of this action.
 
         
 
              That defendant shall file claim activity reports as required 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1(2).
 
         
 
              Signed and filed this 20th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         P.O. Box 1066
 
         Middle Road
 
         Keokuk, Iowa  52632-1066
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East Third Street
 
         600 Union Arcade Building
 
         Davenport, Iowa  52801-1550
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50; 1803; 1806
 
                                                 2209; 4100
 
                                                 Filed May 20, 1968
 
                                                 David E. Linquist
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM BAKER,
 
         
 
              Claimant,                              File No. 798226
 
         
 
         vs.
 
                                                      A P P E A L
 
         ARMOUR DIAL, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-insured,
 
              Defendant.
 
         
 
         
 
         1108.50
 
         
 
              Medical evidence that claimant's injury aggravated a 
 
         preexisting back condition established a causal connection 
 
         between the injury and claimant's present disability.
 
         
 
         1803
 
         
 
              Claimant, 48 years old and possessing a high school 
 
         education, lost no earnings or work as a result of his injury but 
 
         did receive a fitting restriction and a 5% of the body as a whole 
 
         impairment rating.  Claimant was unable to bid into 2/3 of the 
 
         jobs at his employer's after his injury.  Claimant was determined 
 
         to have an industrial disability of 20%.
 
         
 
         1806
 
         
 
              Claimant has a preexisting degenerative disc disease. 
 
         However, claimant was able to return to full duty after each of 
 
         three prior incidents of lumbar strain. held that the preexisting 
 
         disc disease did not cause disability and no apportionment would 
 
         be made.
 
         
 
         2209
 
         
 
              The record showed that claimant suffered a traumatic 
 
         aggravation of a preexisting back condition and not a cumulative 
 
         injury.  Claimant's work was not the repetitive activity 
 
         contemplated by McKeever.
 
         
 
         4100
 
         
 
              Claimant was still working for defendant in substantially 
 
         the same capacity and not in a "make work" position after his 
 
                                                
 
                                                         
 
         injury, and thus was not an odd-lot employee.  The fact that 
 
         claimant may some day no longer be employed by his present 
 
         employer is mere speculation and not properly a part of the 
 
         determination of industrial disability.  Claimant's industrial 
 
         disability is to be based on his present condition.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICKY L. MERCHANT,
 
         
 
              Claimant,
 
                                                   File No. 798237
 
         VS.
 
         
 
         HART BEVERAGE COMPANY,
 
                                                     A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         temporary total disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; joint exhibits 1 through 15; and 
 
         claimant's exhibits 2 and 3.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether claimant's permanent disability was causally 
 
         related to his employment.
 
         
 
              2.  Whether the deputy properly found that claimant lacked 
 
         motivation and was not discharged because of his injuries.
 
         
 
              3.  Whether claimant is entitled to an award of industrial 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
                                        
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.  The medical evidence in the record shows that claimant 
 
         has not suffered permanent disability as a result of his injury 
 
         of March 3, 1985.  Claimant was discharged for poor work 
 

 
         
 
         
 
         
 
         MERCHANT V. HART BEVERAGE COMPANY
 
         Page   2
 
         
 
         performance and absenteeism.  Only a portion of claimant's 
 
         absenteeism was caused by his work injury.  Claimant has suffered 
 
         temporary total disability as a resuit of his injury of March 3, 
 
         1985.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On March 3, 1985, claimant materially aggravated his 
 
         preexisting low back condition while lifting at work.
 
         
 
              2.  As a result of the aggravation, claimant was temporarily 
 
         totally disabled March 5 and 6, 1985 and from March 12 to March 
 
         21, 1985.
 
         
 
              3.  The treatment claimant received from March 5, 1985 to 
 
         April 8, 1985 from Dr. Bronson was reasonable and necessary for 
 
         the treatment of his injury.
 
         
 
              4.  Claimant did not suffer permanent disability as a result 
 
         of his injury.
 
         
 
              5.  Claimant was discharged from his employment in June 1985 
 
         for poor job performance unrelated to his injury.
 
         
 
              6.  Claimant's rate of compensation is $257.02.
 
         
 
              7.  Claimant has been previously paid three weeks and five 
 
         days of compensation under the Nebraska statute at a rate of 
 
         $220.22.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he received an injury arising out of and in the course of his 
 
         employment on March 3, 1985.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between his injury and his 
 
         temporary total disability and the chiropractic treatment 
 
         rendered by Dr. Bonson.
 
         
 
              Claimant has not suffered any permanent disability as a 
 
         result of his injury of March 3, 1985.
 
         
 
         
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay claimant temporary total 
 
         disability benefits for two point two eight six (2.286) weeks at 
 
         a rate of two hundred fifty-seven and 02/100 dollars ($257.02) 
 
         per week.
 
         
 
              That defendants are entitled to credit for benefits 
 

 
         
 
         
 
         
 
         MERCHANT V. HART BEVERAGE COMPANY
 
         Page   3
 
         
 
         previously paid.
 
         
 
              That defendants pay for the chiropractic treatment of Dr. 
 
         Bronson.
 
         
 
              That costs are taxed to claimant except for the attendance 
 
         of the court reporter at hearing which is taxed to defendants.  
 
         Costs of the appeal are taxed to claimant.
 
         
 
         
 
              Signed and filed this 31st day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632 Badgerow Building
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Alan D. Hallock
 
         Mr. William Kevin Stoos
 
         Attorneys at Law
 
         Jackson Plaza, Suite 300
 
         Sioux City, Iowa 51101
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1108.50; 1801;
 
                                                     2505
 
                                                     Filed May 31, 1988
 
                                                     David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RICKY L. MERCHANT,
 
         
 
              Claimant,
 
                                                 File No. 798237
 
         VS.
 
         
 
         HART BEVERAGE COMPANY,                    A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50
 
         
 
              Claimant proved a causal connection between his injury and 
 
         his temporary total disability and chiropractic treatment.
 
         
 
         1801
 
         
 
              Claimant proved entitlement to temporary total disability 
 
         benefits for time he was off work due to his injury.  Claimant 
 
         was denied industrial disability where medical evidence indicated 
 
         no permanency.
 
         
 
         2505
 
         
 
              Claimant was awarded medical benefits for his chiropractic 
 
         treatment.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          _________________________________________________________________
 
          RICKY L. MERCHANT,
 
           
 
                Claimant,
 
           
 
           VS.                                         File No. 798237
 
           
 
           HART BEVERAGE COMPANY,                     R E H E A R I N G
 
           
 
                Employer,                              D E C I S I 0 N
 
           
 
           and
 
           
 
           ROYAL INSURANCE COMPANY,
 
           
 
                Insurance Carrier,
 
                Defendants.
 
          
 
          __________________________________________________________________
 
          
 
 
 
               This matter comes on for hearing pursuant to claimant's 
 
          application for rehearing "to correct obvious error."  The 
 
          "obvious error" in this matter arises as a result of reliance on 
 
          the stipulation of the parties that claimant had received 
 
          benefits he had not in fact received.
 
 
 
               Based upon additional evidence submitted, i.e., the 
 
          affidavit of Richard L. Young, it would appear that defendants 
 
          were given credit for payments made to claimant as a result of a 
 
          September 1984 injury which they are not entitled to.  Defendants 
 
          are entitled to credit only for payment made as a result of the 
 
          March 4, 1985 injury.
 
 
 
               Finding 2 of the decision filed December 31, 1986 
 
          establishes that claimant is entitled to temporary total 
 
          disability benefits for March 5 and March 6, 1985 and for the 
 
          period from March 12 to March 21, 1985.  This is a period of one 
 
          and four-sevenths weeks and is supported by claimant's testimony 
 
          and the report of Allen W. Bronson, D.C.  It would appear at this 
 
          time, however, that claimant was off work for the period from 
 
          March 5, 1985 to March 21, 1985, which is a period of two weeks 
 
          and two days.  Defendants' letter of January 8, 1987 in any event 
 
          indicates defendants are willing to stipulate to two weeks and 
 
          two days and it will be so found.
 
 
 
               Claimant's temporary total disability entitlement is for two 
 
          weeks and two days of benefits under Iowa law.  Defendants paid 
 
          claimant pursuant to Nebraska law the sum of $457.14.  This 
 
          entitles claimant to an additional $130.41.  It is noted that had 
 
          defendants in fact paid two weeks and two days of benefits at a 
 
          rate of $220.22 then they should have paid $503.42.  It is also 
 
          noted
 
                                                               
 
                                                               
 
 
 
          MERCHANT V. HART BEVERAGE CO.
 
          Page 2
 
 
 
 
 
          that the figures arrived at in this rehearing are not the figures 
 
          arrived at by defendants even though all are presumably operating 
 
          under the same set of facts.  If the solution arrived at here 
 
          regarding temporary total disability benefits is not satisfactory 
 
          to the parties, then (1) claimant shall file a clear statement 
 
          concerning the period of time he was off work in March 1985 
 
          including any additional evidence he may have as well as specific 
 
          reference to the evidence in the record made to date which 
 
          support his position, and (2) defendants shall do likewise.
 
 
 
               In light of the "obvious error" concerning this matter, it 
 
          would be an abuse of discretion to assess the costs to claimant.
 
 
 
               IT IS HEREBY ORDERED that the decision of December 31, 1986 
 
          be amended to provide that defendants Pay unto claimant one 
 
          hundred thirty and 41/100 dollars ($130.41) together with 
 
          interest thereon from March 21, 1985.
 
 
 
               IT IS FURTHER ORDERED that costs be taxed to defendants.
 
 
 
               Signed and filed this 3rd day of February, 1987.
 
 
 
 
 
 
 
 
 
 
 
                                          STEVEN E. ORT
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
          Copies To:
 
 
 
          Mr. Harry H. Smith
 
          Attorney at Law
 
          632-640 Badgerow Bldg.
 
          P. 0. Box 1194
 
          Sioux City, Iowa  51102
 
 
 
          Mr. Alan D. Hallock
 
          Mr. Willis A. Buell
 
          Attorneys at Law
 
          830 Frances Building
 
          Sioux City, Iowa 51101
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1703; 1801
 
                                                 Filed:  February 3, 1987                                    STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         RICKY L. MERCHANT,
 
          
 
               Claimant,
 
          
 
          VS.                                           File No. 798237
 
          
 
          HART BEVERAGE COMPANY,                       R E H E A R I N G
 
          
 
               Employer,                                D E C I S I 0 N
 
          
 
          and
 
          
 
          ROYAL INSURANCE COMPANY,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         1703; 1801
 
         
 
              Rehearing was granted to correct temporary total disability 
 
         award which gave credit to defendants for Nebraska benefits 
 
         claimant had not in fact received even though his attorney had 
 
         stipulated that such benefits had been received.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed August 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY L. LUNDQUIST,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 792729
 
                                          :                 798238
 
            FIRESTONE TIRE & RUBBER       :                 798239
 
            COMPANY,                      :
 
                                          :         R E M A N D
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            This remand decision was based in part on prior findings by 
 
            courts on judicial review and the prior abritration and 
 
            appeal decisions.  The courts on review determined that 
 
            claimant suffered a permenant work injury.  The sole issue 
 
            on remand is the extent of claimant's industrial disability.
 
            Claimant is adjudged to be 40 percent disabled for 
 
            industrial purposes on account of her work injuries to her 
 
            back.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed August 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY L. LUNDQUIST,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 792729
 
                                          :                 798238
 
            FIRESTONE TIRE & RUBBER       :                 798239
 
            COMPANY,                      :
 
                                          :         R E M A N D
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            INSURANCE COMPANY OF NORTH    :
 
            AMERICA,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            This remand decision was based in part on prior findings by 
 
            courts on judicial review and the prior abritration and 
 
            appeal decisions.  The courts on review determined that 
 
            claimant suffered a permenant work injury.  The sole issue 
 
            on remand is the extent of claimant's industrial disability.
 
            Claimant is adjudged to be 40 percent disabled for 
 
            industrial purposes on account of her work injuries to her 
 
            back.