BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID KOETTERS,
 
         
 
              Claimant,
 
                                                    File No. 800074
 
         VS.
 
         
 
         STATE III ELECTRIC,                    A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         HERITAGE MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by David 
 
         Koetters, claimant, against State III Electric, employer, and 
 
         Heritage Mutual Insurance Co., insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained July 24, 1985.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         December 3, 1987.  The record was considered fully submitted upon 
 
         the receipt of joint exhibit 26 (the deposition of John J. 
 
         Dougherty, M.D.) December 14, 1987.  The record in this case 
 
         consists of the testimony of the claimant, Elliot Rush, and Lynda 
 
         Boyd; and joint exhibits 1 through 29, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved December 3, 1987, the issues presented for determination 
 
         are:
 
         
 
              1.  Whether claimant's work injury is the cause of any 
 
         permanent disability and, if so, the nature and extent thereof; 
 
         and
 
         
 
              2.  The extent of claimant's entitlement to weekly 
 
         compensation for temporary total disability/healing period 
 
         benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant, an electrician by trade, sustained an injury
 
         arising out of and in the course of his employment July 24, 1985, 
 
         when he fell into a hole while following a line of conduit.  
 
         Claimant was hospitalized where his left shoulder was reset by 
 
         Dr. H. N. Hirsch and his arm placed in a restraining device so he 
 
         could not move it.  Claimant stated he was referred to John J. 
 
         Dougherty, M.D., who treated him with medications, physical 
 
         therapy and a TNS unit which he still uses for pain control.  
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   2
 
         
 
         
 
         Claimant last saw Dr. Dougherty at the end of December 1986, when 
 
         he was treated for a broken hand sustained in a home accident.  
 
         Claimant acknowledged that since his treatment for that home 
 
         accident, he has neither continued with nor sought the care of 
 
         any medical provider.
 
         
 
              Claimant testified he was never told by Dr. Dougherty he was 
 
         released to return to work.  However, in December 1986, when his 
 
         workers' compensation payments ceased, claimant contacted his 
 
         local union business office and requested to have his name placed 
 
         on the employment referral list.  Claimant was sent to two jobs 
 
         in 1987, both of which he was able to perform satisfactorily.  He 
 
         maintained, however, that the other workers on the job Otook care 
 
         of" him by doing all the lifting, carrying and pulling and that 
 
         neither job required any overhead work.  He also acknowledged 
 
         that since his injury he has worked on a remodeling project, has 
 
         done some painting, has been a consultant on the installation of 
 
         a computer system and was attempting to install an overhead fan 
 
         at home when he fell in December 1986.  Claimant stated that 
 
         since his work injury he has not conducted any active job search 
 
         outside of placing his name on the union referral list and has 
 
         not taken any action toward a change in vocations.
 
         
 
              Claimant identified his current symptoms as constant pain in 
 
         his left shoulder, arm and neck which he described as a dull 
 
         ache, at times severe.  He testified he cannot work overhead with 
 
         any degree of efficiency because the extended use of his arm 
 
         overhead or any heavy repetitive lifting or pulling causes his 
 
         pain to intensify.
 
         
 
              Elliot Rush testified he is the business manager for the 
 
         Sioux City local electrical union and as such is responsible for 
 
         referring union members to work.  He explained that after 
 
         receiving an order for workers from an employer, he begins his 
 
         referrals from the top of the list discussing with each worker 
 
         whether or not the job is within his capabilities.  He stated 
 
         when claimant was called in 1987 about work on the Powerhouse, 
 
         claimant indicated he was willing to at least try the work and 
 
         that he received no complaints on the quality or quantity of work 
 
         claimant performed while on the job.
 
         
 
              Lynda Boyd, M.S., C.R.C., C.I.R.S., testified that she 
 
         reviewed the vocational rehabilitation report of Gail Leonhardt 
 
         (joint exhibit 22) and that she strongly disagreed with its
 
         content and conclusions particularly with regard to the assertion 
 
         claimant has lost 99.04 percent access to the original employment 
 
         market to which he had access before he became injured.  Ms. Boyd 
 
         maintained 99.04 percent is very high and would indicate 
 
         significant restrictions had been imposed which she did not 
 
         believe, based on a review of the medical records, had been 
 
         imposed on claimant.
 
         
 
              John J. Dougherty, M.D., orthopedic surgeon, testified he 
 
         began treating claimant September 30, 1985 on referral from Dr. 
 
         Hirsch who had performed a closed reduction on the shoulder 
 
         dislocation (dislocation of the left humerus, fracture of the 
 
         greater tuberosity left humerus, fracture of the left clavicle 
 
         (joint exhibit 3)).  An arthrogram performed in October 1985 
 
         showed no evidence of a rotator cuff tear and an EMG study showed 
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   3
 
         
 
         
 
         some evidence of denervation in the deltoid and brachial 
 
         radialis.  Dr. Dougherty's office notes indicate claimant was not 
 
         making much progress toward healing until February 10, 1986 when 
 
         he noted claimant was beginning to show some improvement.  One 
 
         month later, however, claimant was referred to Dennis Nitz, M.D., 
 
         for evaluation who opined after examination on April 1, 1986 
 
         claimant's "status post left shoulder dislocation with small 
 
         humeral head avulsion fracture and fractured left clavicle" was 
 
         it clinically stable" and that there was "no evidence of cervical 
 
         radiculopathy, brachial plexopahty, entrapment neuropathy.O (Jt. 
 
         Ex. 2)
 
         
 
              Claimant thereafter returned to Dr. Dougherty's care who 
 
         noted on June 6, 1986 that when claimant was seen May 13, 1986, 
 
         the possibility of claimant's returning to work was discussed but 
 
         rejected by claimant.  Dr. Dougherty wrote:
 
         
 
              It appears that Mr. Koetters has pretty well reached a 
 
              plateau .... Basically, I have no other significant 
 
              treatment for him ....
 
         
 
                 As far as disability, I think we should wait three months 
 
              and give him a disability .... As far as restrictions, I 
 
              would say he's probably going to have some difficulty as far 
 
              as abducting and working above his head, but I would not be 
 
              adverse to letting him do whatever he feels he can do with 
 
              limitation by pain and possibly by some weakness.  I would 
 
              feel at this point in time that he will probably have a 
 
              disability of about 10% of his left upper extremity, but I 
 
              think it would be best to wait at least another three months 
 
              and then determine his disability.
 
         
 
         An arthrogram and EMG were done again in November 1986 at which 
 
         time Dr. Dougherty notes claimant had no evidence of denervation 
 
         and the EMG was normal.  At that time, Dr. Dougherty expressed 
 
         his belief that claimant's range of motion was good and his
 
         power was back.  Dr. Dougherty wrote on December 30, 1986:
 
         
 
                 Attempting to arrive at a disability rating on this 
 
              patient, it would be my opinion he's probably entitled 
 
              to about 5% of his left upper extremity.  As I 
 
              mentioned before, his EMG looks normal now around the 
 
              shoulder .... I am just at a loss to explain why he 
 
              can't do more than he says he reportedly is able to 
 
              do.
 
         
 
              Claimant was seen for evaluation July 9, 1986 by Horst G. 
 
         Blume, M.D., who concluded:
 
         
 
                 It is my opinion, within reasonable medical 
 
              probability, that the patient has a permanent partial 
 
              disability to the left arm of 36%, which includes a 
 
              partial injury to the auxiliary nerve due to loss of 
 
              strength and pain of 20%, and 16% due to loss of range 
 
              of motion, and the injury sustained are a direct result 
 
              of the work-related accident when the patient fell on 
 
              July 24, 1985.
 
         
 
         
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   4
 
         
 
         
 
                                APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 24, 1985 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              The expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or iii 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).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).  A shoulder injury, 
 
         however, is not scheduled, being an injury to the body as a 
 
         whole.  Alm v. Morris Barrack Cattle Co., 240 Iowa 1174, 38 
 
         N.W.2d 161 (1949).
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              By the very meaning of the phrase, a person with a 
 
              "permanent disability" can never return to the same 
 
              physical condition he or she had prior to the 
 
              injury.....  See, 2 A. Larson, The Law of Workmen's 
 
              Compensation SS 57.12 (1981).  The healing period may 
 
              be characterized as that period during which there is 
 
              reasonable expectation of improvement of the disabling 
 
              condition," and ends when maximum medical improvement 
 
              is reached.  Boyd v. Hudson Pulp & Paper Corp., 177 
 
              So.2d 331, 330 (Fla.1965).  That is, it is the period 
 
              "from the time of the injury until the employee is as 
 
              far restored as the permanent character of his injury 
 
              will permit."  Winn Drilling Company v. Industrial 
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   5
 
         
 
         
 
              Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 904, 
 
              905-6 (1965).  See also W. Schneider, Schneider's 
 
              Workmen's Compensation, SS 2308 (1957).  Thus, the 
 
              healing period generally terminates "at the time the 
 
              attending physician determines that the employee has 
 
              recovered as far as possible from the effects of the 
 
              injury.  Winn, 203 N.E. at 906.
 
         
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 
 
         1981).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
                                     ANALYSIS
 
         
 
              Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury is the cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  Considering the claimant's testimony with regard to 
 
         his current physical complaints and capabilities in conjunction 
 
         with the medical records and opinions, it is accepted claimant 
 
         will never return to the same condition he was in prior to the 
 
         work injury of July 24, 1985 and that it is, therefore, the cause 
 
         of a permanent impairment.  Further, based upon the situs of the 
 
         injury (dislocation of the left humerus, fracture of the greater 
 
         tuberosity, fracture of the left clavicle) as well as claimant's 
 
         testimony of subjective symptoms beyond the upper extremity, it 
 
         is accepted claimant sustained an injury to his shoulder which 
 
         constitutes under Alm, supra, an injury to the body as a whole.  
 
         See also Nazarenus v. Oscar Mayer & Co., II Iowa Industrial 
 
         Commissioner Reports 281 (Appeal Decision 1982).  In Alm, 
 
         claimant had a rating of 25-30 percent impairment to the arm and 
 
         the court, noting the anatomical location of the injury extended 
 
         from the arm into the shoulder, ruled that the injury was not 
 
         restricted to a schedule; thus, an injury to the shoulder which 
 
         produces permanent impairment entitles the claimant to an 
 
         industrial disability.  See also Lauhoff Grain Co. v. McIntosh, 
 
         395 N.W.2d 834 (Iowa 1989).
 
         
 
              The mere fact that the rating pertains to a scheduled member 
 
         does not mean the disability is restricted to a schedule.  
 
         Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa 
 
         Industrial Commissioner Reports 308 (Appeal Decision 1982).  
 
         There are two impairment ratings in the record.  Dr. Dougherty, 
 
         claimant's treating physician, rated claimant as having a 10 
 
         percent permanent partial impairment to the upper left extremity 
 
         in June 1986 and reduced that to 5 percent in December 1986.  Dr. 
 
         Blume, who saw claimant for evaluation in July 1986, rated 
 
         claimant as having a permanent partial disability to the left arm 
 
         of 36 percent.  Neither Dr. Hirsch, who performed the closed 
 
         reduction, nor Dr. Nitz, who saw claimant for evaluation, provide 
 
         any permanent partial impairment rating.
 
         
 
              Dr. Dougherty's opinion is given greater weight than Dr. 
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   6
 
         
 
         
 
         BlumeOs.  Based on Dr. Blume's report, there is no indication 
 
         that he availed himself of any of the x-rays or EMG tests 
 
         previously performed, that he performed any diagnostic tests 
 
         himself and it would appear he relied in large measure on the 
 
         subjective complaints of claimant.  Further, Dr. Blume bases 20 
 
         percent of his rating on neurological injury while tests, done 
 
         subsequent to the rating, reveal the absence of any neurological 
 
         injury.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   7
 
         
 
         
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              Claimant is 47 years old (45 at the time of injury) who, as 
 
         will be discussed, has had a lengthy healing period as a result 
 
         of the injury.  He is a high school graduate with previous work 
 
         experience as a truck driver, warehouseman, equipment operator 
 
         and assembler and who has, since 1962, worked as an electrician 
 
         in residential, commercial and industrial settings.  He described 
 
         his health before his injury as "generally good" although he also 
 
         now admits to problems with restricted breathing due to asthma 
 
         and high blood pressure compounded by obesity and alcohol intake.  
 
         For an extensive period in 1987, claimant returned to his 
 
         previous employment and, after three weeks on the job, was named 
 
         foreman earning approximately $18.50 per hour, about $3.00 more 
 
         per hour than a journeyman electrician.  Neither Dr. Dougherty 
 
         nor Dr. Blume impose any particular restriction on claimant 
 
         outside of pain tolerance, essentially leaving it to claimant's 
 
         discretion as to what he may or may not be able to do.  Claimant 
 
         argues, however, his work as an electrician is heavy work 
 
         requiring he be able to sustain working overhead which he does 
 
         not feel he can do with any degree of efficiency.  As support, 
 
         claimant points to the vocational rehabilitation evaluation 
 
         report of Gail Leonhardt. (Jt. Ex. 22)  That report is, however, 
 
         given little weight in this analysis because of its questionable 
 
         probative value.  The undersigned's observation of claimant at 
 
         the time of hearing and the actions of the claimant himself in 
 
         returning to work and showing his ability to perform his job 
 
         satisfactorily establish claimant clearly has not been precluded 
 
         from 99.04 percent of the labor market to which he had access 
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   8
 
         
 
         
 
         prior to his injury.  Claimant argues that the only reason he was 
 
         able to do these jobs was his union coworkers "took care of" him 
 
         by doing the heavy work.  Elliot Rush attested to this as being 
 
         the prevailing attitude, in his opinion, throughout the union 
 
         membership.  Accepting this testimony, a question arises as to 
 
         whether or not there is any reason to believe this would not 
 
         continue in the future, thus, allowing claimant not only the 
 
         opportunity to return to work but also to work in his chosen 
 
         trade.  It is accepted, however, that claimant's work injury has 
 
         affected his capacity to earn since claimant, prior to his 
 
         injury, had no need to depend on the assistance of others.  
 
         Considering, then, all of the elements of industrial disability, 
 
         it is concluded claimant has established he has a permanent 
 
         partial disability of 10 percent for industrial purposes.
 
         
 
              The final question for resolution is claimant's appropriate 
 
         healing period.  Claimant prays for a healing period from July 
 
         24, 1985 through February 2, 1987--the period from injury to 
 
         return to work.  Defendants assert claimant's healing period 
 
         should cease July 9, 1986, the time of Dr. Blume's rating since 
 
         it is reasonable to conclude it was then medically indicated that 
 
         significant improvement from the injury was not anticipated and 
 
         that claimant was then capable of returning to employment 
 
         substantially similar to his preinjury employment.  Dr. Dougherty 
 
         in July 1986 rated claimant 10 percent permanently partially 
 
         impaired.  However, in December 1986 the rating is reduced.  
 
         Clearly, claimant must have improved over this six month period. 
 
          Both Dr. Nitz and Dr. Blume recommend additional treatment.  
 
         When considering all the possible dates the medical experts 
 
         suggest as when claimant reached maximum medical recovery, it is 
 
         found claimant's healing period ended November 28, 1986 when the 
 
         results of the EMG showed no evidence of denervation and the 
 
         arthrogram was essentially negative.  Pursuant to Iowa Code 
 
         section 85.34(2), permanent partial disability benefits shall 
 
         commence November 29, 1986.
 
                                 
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment July 24, 1985, when he fell in a hole 
 
         while tracing a line of conduit.
 
         
 
              2.  Claimant is currently 47 years old, a high school 
 
         graduate, and has worked as an electrician since 1962.
 
         
 
              3.  Claimant's work as an electrician requires pulling, 
 
         lifting and carrying materials of various weights as well as an 
 
         ability to work with the arms overhead.
 
         
 
              4.  Claimant suffered a dislocation of the left humerus, 
 
         fracture of the greater tuberosity, left humerus and fracture of 
 
         the left clavicle in the work accident July 24, 1985.
 
         
 
              5.  Claimant's injury is to the shoulder, extending beyond 
 
         the upper extremity as claimant perceives persistent pain in his 
 
         shoulder, neck and arm.
 
         
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page   9
 
         
 
         
 
              6.  Claimant's injury is the cause of a permanent 
 
         impairment.
 
         
 
              7.  Claimant cannot work overhead with the same degree of 
 
         efficiency as before his injury.
 
         
 
              8.  Claimant has been able to return to work as an 
 
         electrician but must depend on the assistance of others to do the 
 
         heavier work which causes his pain to intensify.
 
         
 
              9.  Claimant's capacity to earn has been hampered as a 
 
         result of the injury.
 
         
 
             10.  Claimant has a 10 percent industrial disability as a 
 
         result of the injury.
 
         
 
             11.  Claimant reached maximum medical recovery November 28, 
 
         1986 when the last EMG revealed no denervation and the arthrogram 
 
         was essentially normal.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established his injury is the cause of the 
 
         disability on which he now bases his claim.
 
         
 
              2.  Claimant has established he sustained an injury to the 
 
         body as a whole.
 
         
 
              3.  Claimant has met his burden of proving an industrial 
 
         disability of  10 percent as a result of the July 24, 1985 
 
         injury.
 
         
 
              4.  Claimant has established entitlement to healing period 
 
         benefits for the period from July 24, 1985 through November 28, 
 
         1986, inclusive.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay claimant seventy point four twenty-nine 
 
         (70.429) weeks of healing period benefits at the stipulated rate 
 
         of three hundred forty-eight and 20/100 dollars ($348.20) per 
 
         week.
 
         
 
              Defendants shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         three hundred forty-eight and 20/100 dollars ($348.20) per week 
 
         commencing November 29, 1986.
 
         
 
              Defendants shall receive full credit for the fifty-three 
 
         (53) weeks ($18,447.18) of temporary total/healing period 
 
         benefits and the twenty-one (21) weeks ($7,309.26) of permanent 
 
         partial disability benefits previously paid.
 
         
 

 
         
 
         
 
         
 
         KOETTERS, V. STATE III ELECTRIC
 
         Page  10
 
         
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to Division of Industrial Services rule 343-4.33.
 
         
 
         
 
              Signed and filed this 25th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         632-640 Badgerow Building
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Charles T. Patterson
 
         Attorney at Law
 
         P.O. Box 3086
 
         200 Home Federal Building
 
         Sioux City, Iowa 51102
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803; 1803.1; 1802
 
                                                  Filed 2-25-88
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID KOETTERS,
 
         
 
              Claimant,                              File No. 800074
 
         
 
         VS.
 
         
 
         STATE III ELECTRIC,                     A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         HERITAGE MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803; 1803.1
 
         
 
              Claimant's injury to his shoulder which resulted in symptoms 
 
         extending beyond the upper extremity held to be an injury to the 
 
         body as a whole under Alm.  Claimant awarded 10% industrial 
 
         disability.
 
         
 
         1802
 
         
 
              Healing period was found to end when last medical test run 
 
         revealed no denervation and arthrogram was essentially normal.  
 
         Defendants had requested healing period to cease when claimant 
 
         was first given a permanent partial impairment rating.  However, 
 
         evidence establishes claimant continued to improve as impairment 
 
         rating was lower six months later.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NANCY WOOD,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  800262
 
            FLEETGUARD, INC.,             :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Nancy 
 
            Wood, claimant, against Fleetguard, Inc., employer, and 
 
            Liberty Mutual Insurance Company, insurance carrier, 
 
            defendants, for benefits as the result of an alleged injury 
 
            which occurred on or about July 24, 1985.  A hearing was 
 
            held in Mason City, Iowa, on March 7, 1989, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Dennis L. Hanssen.  Defendants were 
 
            represented by Tito Trevino.  The record consists of the 
 
            testimony of Nancy Wood, claimant; Bob Wood, claimant's 
 
            husband; Leonard O Weaver, III, claims adjuster; Patricia K. 
 
            Peterson, production worker; Joyce L. Kuntz, coemployee; 
 
            Nancy J. Walls, material handler; Vernon B. Hagen, 
 
            production supervisor; Jeanne M. Stumo, lead person; 
 
            Rosemary K. Almelien, assembler; joint exhibits 1 through 6; 
 
            claimant's exhibits 1 through 4; and defendants' exhibits 1 
 
            through 3.  Claimant objected to defendants' exhibit 4, a 
 
            recorded statement of Stumo, the objection was sustained 
 
            because it wasn't served within 15 days of hearing as 
 
            required by paragraph six of the hearing assignment order.  
 
            Defendants' exhibit 4 remains with the record as an offer of 
 
            proof (transcript pages 282-287).  At the time of hearing, 
 
            claimant presented a written summary of contentions of 
 
            claimant.  The deputy ordered a transcript of the hearing.  
 
            Both attorneys submitted outstanding briefs.
 
            
 
                               preliminary matters
 
            
 
                 The original notice and petition was amended to allege 
 
            the issue of whether (1) claimant was entitled to penalty 
 
            benefits under Iowa Code section 86.13 and (2) the issue of 
 
            whether claimant was an odd-lot employee.  However, these 
 
            two issues were not addressed at the prehearing conference 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and were not shown as hearing issues on the hearing 
 
            assignment order.  The parties agreed, at the hearing, that 
 
            these two issues were not matters to be determined by these 
 
            proceedings (tr. pp. 4 & 5).
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that the rate of compensation, 
 
            in the event of an award, is $169.38 per week. 
 
            
 
                 The parties further stipulated in their posthearing 
 
            briefs, at page one of each brief, that claimant was paid 
 
            37.142 weeks of healing period benefits and seventeen weeks 
 
            of permanent partial disability benefits prior to hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury to her back on 
 
            July 24, 1985, which arose out of and in the course of 
 
            employment with employer and whether, as a result of this 
 
            back injury, claimant sustained a depression and 
 
            psychological injury which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 Whether the injury was a cause of either temporary or 
 
            permanent disability benefits.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits, and if so, the extent of 
 
            benefits to which she is entitled.
 
            
 
                 Whether claimant is entitled to certain medical 
 
            expenses.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            her low back on or about July 24, 1985, which arose out of 
 
            and in the course of employment with employer.  It is 
 
            further determined that claimant did not sustain a 
 
            depression or psychological injury caused by the back injury 
 
            which occurred on July 24, 1985.
 
            
 
                 Claimant started to work for employer on March 27, 
 
            1972.  She stated that she passed a preemployment physical 
 
            examination at that time (tr. p. 27).  She denied any prior 
 
            serious health or back problems (tr. pp. 26 & 33).  She did 
 
            admit to, and the record reflects, three minor back 
 
            incidents prior to this injury.  In March of 1976 she hit 
 
            her back on a piece of metal (tr. p. 32; joint exhibit 1, 
 
            Colby, p. 4).  In August of 1982, she had back complaints as 
 
            a result of a pelvic inflammation (tr. p. 35; jt. ex. 1, 
 
            Colby, p. 4).  On July 12, 1983, she complained of back pain 
 
            after moving a stand (tr. pp. 35 & 36; jt. ex. 1, Colby, p. 
 
            6).  These were minor injuries of temporary duration that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            resulted in no permanent effects.  
 
            
 
                 Several employees alleged that claimant frequently 
 
            complained of back pain from chopping wood at her home.  
 
            Claimant admitted that she chopped and split wood in 
 
            December of 1984, but did not encounter any serious back 
 
            problems which caused her to miss any work or which required 
 
            any medical attention (tr. pp. 38 & 39).  She had not 
 
            chopped would for six months prior to July 24, 1985.  
 
            Claimant's testimony is corroborated by her medical records 
 
            (jt. ex. 1, Colby, pp. 1-16) and her husband's testimony.  
 
            Claimant testified that she operated several machines at 
 
            work (tr. p. 41; jt. ex. 1, Colby, p. 18).  She described 
 
            that her job required her to do a lot of bending, reaching 
 
            into hoppers, and bending forward onto tables (tr. pp. 
 
            43-45).  
 
            
 
                 Claimant testified that on January 23, 1985, rather 
 
            than on January 24, 1985, that she experienced a very sharp 
 
            pain in her back at work which radiated into the left leg 
 
            (tr. pp. 41-48 & 95-99).  Claimant testified that she had 
 
            never experienced a pain like that prior to July 23, 1985 
 
            (tr. p. 47).  The pain continued to bother her that night 
 
            and the following day at which time she reported it to the 
 
            lead person and claimant was taken by employer to see Dennis 
 
            E. Colby, D.O., that day (tr. pp. 48-54).    
 
            
 
                 Dr. Colby noted on July 24, 1985, "Back got stiff last 
 
            night, worse now.  Can hardly straighten up.  Was at work 
 
            when this happened."  joint exhibit 1, Colby, page 9.  On 
 
            August 8, 1985, Dr. Colby wrote a memo which stated, "On 
 
            July 24, 1985, Nancy was brought in from the plant and had a 
 
            severe thoraco-lumbar myositis.  She was at work when this 
 
            happened.  This is most likely a aggrivation [sic] of an 
 
            existing weakness there." jt. ex. 1, Colby, p. 47.  On his 
 
            office note of August 12, 1985, Robert D. Brainerd, M.D., 
 
            Dr. Colby's associate, recorded, "This is a work related 
 
            injury." jt. ex. 1, Colby, p. 9.  Dr. Colby wrote a letter 
 
            to employer on August 26, 1985, which began as follows: 
 
            "Nancy was injured on the job on July 24, 1985.  She was 
 
            seen here in the office and given a diagnosis of lumbar 
 
            myocitis [sic]."  jt. ex. 1, Colby, p. 49.  
 
            
 
                 Dr. Colby referred claimant to George E. Reisdorf, M.D.  
 
            He examined claimant on September 3, 1985 and September 17, 
 
            1985.  On the earlier date, he felt claimant had a bulging 
 
            disc based on the history she related (jt. ex. 1, p. 52).  
 
            On the latter date, he stated his diagnosis was lumbar disc 
 
            disease (jt. ex. 1, Reisdorf, p. 5; jt. ex. 1, Colby, p. 
 
            53).  He proceeded on the work history which claimant 
 
            related, but made no specific statement about causal 
 
            connection or degree of impairment.  
 
            
 
                 Dr. Colby sent claimant to see R.L. Emerson, M.D., an 
 
            orthopedic surgeon, on November 14, 1985, and December 19, 
 
            1985.  Dr. Emerson proceeded on the employment history given 
 
            by claimant, but did not make a specific statement on causal 
 
            connection, nor did he give an impairment rating.  He 
 
            concluded that claimant had a low back pain perhaps stemming 
 
            from a small bulging disc at L5-S1, but he did not think 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            this was the cause of her symptoms (jt. ex. 1, surgical 
 
            associates, pp. 1 & 2).  On December 20, 1985, he stated he 
 
            could not come to a diagnosis regarding her problem and 
 
            recommended a back specialty center, more specifically, 
 
            Sister Kenney Institute in Minneapolis (jt. ex. 1, Colby, p. 
 
            55).  Claimant chose instead to return to work on a 
 
            work-hardening program, rather than go to the back institute 
 
            (jt. ex. 1, Colby, p. 12).
 
            
 
                 Employer sent claimant to see Thomas A. Carlstrom, 
 
            M.D., a neurosurgeon, on May 27, 1986.  He made no specific 
 
            finding about causal connection, but proceeded on an 
 
            employment history and did conclude, "I believe the best 
 
            treatment available to this patient would be a job 
 
            change....I don't believe she should return to the type of 
 
            activity she was doing, even if she becomes asymptomatic." 
 
            jt ex. 1, Carlstrom, p. 2.  Thus it would appear Dr. 
 
            Carlstrom also believed that the injury was work related.
 
            
 
                 Dr. Colby gave a deposition on October 30, 1986.  He 
 
            stated that claimant's injury to her lower back was related 
 
            to her work with employer in July of 1985 (jt. ex. 2, p. 
 
            27).
 
            
 
                 Claimant was examined by Charles B. Carignan, Jr., 
 
            M.D., on May 8, 1986 (jt. ex. 1, Carignan, pp. 1-5).  He 
 
            gave a deposition on September 10, 1986, in which he stated 
 
            that there was no evidence contrary to the fact that 
 
            claimant's lower back injury was a result of her employment 
 
            with employer in July of 1985 (jt. ex. 3, p. 31).
 
            
 
                 Claimant was examined eventually at The Institute for 
 
            Low Back Care, in Minneapolis, by Charles Burton, M.D., a 
 
            neurosurgeon, on April 8, 1987.  Dr. Burton stated, "In 
 
            reviewing the situation, we find that there has been 
 
            long-standing disease in her spine, which was apparently 
 
            asymptomatic until she sustained a work-related injury.  
 
            This clearly aggravated an underlying condition and produced 
 
            a symptomatic problem which has been incapacitating until 
 
            the present time." jt. ex. 1, Institute for Low Back Care, 
 
            p. 2.  He said that all of his findings were consistent with 
 
            a mechanical low back pain syndrome of a chronic nature.  
 
            Dr. Burton gave a deposition on July 27, 1987, in which he 
 
            stated that the patient was found to have degenerative disc 
 
            and facet disease at multilevels and evidence of a 
 
            mechanical low back pain syndrome.  She had bulging discs at 
 
            the L3-4 and L4-5 level (jt. ex. 5, pp. 8, 11 & 12).  Dr. 
 
            Burton further testified that it was his reasonable 
 
            conclusion from claimant's history that her back problem was 
 
            aggravated by the injury (jt. ex. 5, p. 13).  The doctor 
 
            stated that she was a 45-year-old individual with extensive 
 
            changes seen on the diagnostic studies which were more 
 
            advanced than one would ordinarily see in a 45-year-old 
 
            person, but that it was asymptomatic at the time of the 
 
            injury, but based on the history he received it became 
 
            symptomatic at that time (jt. ex. 5, pp. 15 & 16).
 
            
 
                 None of the doctors who examined claimant testified or 
 
            even suggested that her back injury was not caused by her 
 
            employment on January 23, 1985.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Wherefore, based upon the foregoing evidence, the 
 
            overwhelming weight of the medical evidence establishes that 
 
            claimant did injure her back while at work on July 23, 1985, 
 
            and that this injury arose out of and in the course of 
 
            employment with employer. 
 
            
 
                 The testimony of several coemployees; Patricia 
 
            Peterson, Joyce Kuntz, Nancy J. Walls, Vernon B. Hagan, 
 
            Jeanne M. Stumo, and Rosemary Almelien, which tends to 
 
            dispute: (1) whether the injury occurred on July 23, July 24 
 
            or July 25, 1985; (2) what machine claimant was operating or 
 
            what function she was performing at the time of the alleged 
 
            injury; and (3) whether she had complained of back pain or 
 
            not for several years prior to this injury and more 
 
            specifically from chopping wood; must yield to the testimony 
 
            of the many highly competent doctors summarized above.  
 
            Whether the employment was the cause of the injury is 
 
            essentially within the domain of these experts and their 
 
            testimony must be relied upon rather than the testimony of 
 
            the coemployees which were testifying from recollection 
 
            about an event that happened almost four years earlier.
 
            
 
                 Claimant was hospitalized from January 13, 1987 to 
 
            January 19, 1987, at St. Joseph Mercy Hospital in Mason City 
 
            for tiredness, exhaustion, depression and suicidal ideation.  
 
            She was diagnosed as passive dependent disorder versus 
 
            histrionic personality disorder versus mixed personality 
 
            disorder (jt. ex. 1, St. Joseph Mercy Hospital, pp. 1-5).  
 
            The primary treating physician was M.E. Lassise, M.D.  He 
 
            said he was unable to determine whether the depression was 
 
            secondary to a work-related incident (jt. ex. 1, Lassise, p. 
 
            1).
 
            
 
                 At that time she was evaluated by Mark Peltan, Ph. D., 
 
            and he stated: "Mrs. Wood's current difficulties may stem 
 
            from some family conflict." (jt. ex. 1, St. Joseph Mercy 
 
            Hospital, p. 6).  He added: "In addition, she has some 
 
            tendency to convert psychological distress into physical 
 
            complaints....  She seems to be ruminating about all of the 
 
            unpleasant aspects of her life and especially about her 
 
            inability to trust anyone.  She may actually, by being so 
 
            ill, be trying to punish someone who she thinks is 
 
            responsible for her current difficulties." (jt. ex 1, St. 
 
            Joseph Mercy Hospital, p. 7).  Dr. Peltan gave a deposition 
 
            on July 21, 1987, in which he stated, "Scales on the MMPI 
 
            were elevated that revealed family conflict." jt. ex. 4, p. 
 
            16.  With respect to her lack of trust, he testified, "I 
 
            think it was a generalized kind of people, although there 
 
            were indications on the MMPI that oversensitivity and 
 
            mistrust specifically of persons close to her, and probably 
 
            family, husband, children." jt. ex. 4, p. 17.  Although 
 
            Peltan said that claimant thought the precipitating event 
 
            was her back problem, the testing itself indicated the 
 
            possibility of family problems.  He stated, "The cause of 
 
            that depressive reaction seems to have been some family 
 
            conflict which the patient rather attributed--the patient 
 
            attributed again to physical problems, and she was very 
 
            unhappy about that." jt. ex. 4, pp. 43 & 44.  Dr. Peltan 
 
            continued:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 When she got upset, she said I'm upset because of 
 
                 all my problems related to by back.  I'm so upset 
 
                 that I feel suicidal, and she went to a 
 
                 psychiatrist who thought she ought to be in the 
 
                 hospital.  So the basic cause, I believe, for her 
 
                 hospitalization was some conflict at home, some 
 
                 problem at home, that resulted in the whole series 
 
                 of events.
 
            
 
            joint exhibit 4, p. 44.
 
            
 
                 Nancy A. Kermath, M.D., examined claimant on February 
 
            16, 1987, and forwarded her report on March 25, 1987.  The 
 
            forwarding letter states, "Enclosed is a psychiatric 
 
            evaluation of Nancy Wood.  It indicates a depressed mood in 
 
            response to the stress she has been under related to her 
 
            back injury and resulting loss of employment." jt. ex. 1, 
 
            Kermath, p. 1.  However, an examination of the report of Dr. 
 
            Kermath discloses no statement to the effect that the injury 
 
            of July 23, 1985, was the cause of claimant's depression and 
 
            psychological problems (jt. ex. 1, Kermath, pp. 2 & 3).  A 
 
            report from Michael Linder, M.S.W., does not specifically 
 
            attribute the cause of claimant's depression to work, but 
 
            rather supports Dr. Peltan's conclusion that claimant's 
 
            psychological problems were more attributable to family 
 
            relationships (jt. ex. 1, Linder, pp. 1 & 2).  There is 
 
            evidence of stress in claimant's medical history prior to 
 
            this injury and claimant's coemployees testified that she 
 
            had exhibited stress at work prior to this injury.
 
            
 
                 A cause needs to be only one cause, it does not have to 
 
            be the only cause.  A cause need only be a substantial 
 
            factor in bringing about the result.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).  It is 
 
            determined that claimant's employment and the back injury of 
 
            July 23, 1985, were not substantial factors in bringing 
 
            about her depressions and psychological problems.
 
            
 
                 Wherefore, it is determined that claimant's depression 
 
            and psychological problems were not caused by her employment 
 
            or the employment injury to her back on July 23, 1985.
 
            
 
                 Claimant's counsel made an issue of the fact that 
 
            defendants had appeared to admit liability and were paying 
 
            her medical expenses and workers' compensation healing 
 
            period benefits and some permanent partial disability 
 
            benefits until claimant filed suit at which time defendants 
 
            denied liability and stopped workers' compensation benefits 
 
            including those that they had indicated previously that they 
 
            would pay (cl. ex. 4; tr. pp. 155-178).  Defendants, 
 
            however, were within their rights.  The first unnumbered 
 
            paragraph of Iowa Code section 86.13 provides, "The payments 
 
            establish conclusively that the employer and insurance 
 
            carrier have notice of the injury for which benefits are 
 
            claimed but the payments do not constitute an admission of 
 
            liability under this chapter or chapter 85, 85A, or 85B."  
 
            Rather than being chastised, defendants should be commended 
 
            for paying claimant's medical bills and temporary disability 
 
            benefits on a claim which could be disputed for the reason 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            that their was no specific incident or event that was 
 
            definitely established in claimant's work which caused this 
 
            pain in her back and that coemployees testified that 
 
            claimant had complained of back pain and frequently put her 
 
            hand on her back for several months or years prior to July 
 
            23, 1985.
 
            
 
             causal connection of temporary and permanent disability
 
            
 
                 It is determined that the injury of July 23, 1985, was 
 
            the cause of both temporary and permanent disability.
 
            
 
                 Dr. Reisdorf and Dr. Emerson did not specifically state 
 
            that this injury was the cause of claimant's temporary 
 
            disability, but did concur with Dr. Colby that claimant 
 
            should be taken off work as prescribed by Dr. Colby.
 
            
 
                 Dr. Carlstrom implied that this injury was the cause of 
 
            claimant's disability by recommending that she change jobs.
 
            
 
                 Dr. Colby, Dr. Carignan, and Dr. Burton specifically 
 
            stated that this injury was the cause of claimant's 
 
            disability.  Mary Elizabeth Dunn, M.D., who evaluated 
 
            claimant at the request of her attorney, proceeded on the 
 
            basis of a history of a work-related injury (jt. ex. 1, 
 
            Dunn, pp. 1 & 2).
 
            
 
                 Wherefore, it is determined that the injury of July 23, 
 
            1985, was the cause of both claimant's temporary and 
 
            permanent disability.
 
            
 
                       entitlement to temporary disability
 
            
 
                 Claimant is entitled to 35.142 weeks of temporary 
 
            disability benefits.
 
            
 
                 Dr. Colby took claimant off work on July 24, 1985, and 
 
            returned claimant to work on July 29, 1985.  This is a 
 
            period of .714 weeks of temporary disability (jt. ex. 1, 
 
            Colby, pp. 9 & 46).
 
            
 
                 Another physician in Dr. Colby's office, Dr. Brainerd, 
 
            took claimant off work again on August 12, 1985 (jt. ex. 1, 
 
            Colby, p. 9).  She was returned to work by Dr. Brainerd on 
 
            August 19, 1985 (jt. ex. 1, Colby, p. 10).  This is a period 
 
            of one week.
 
            
 
                 Claimant was taken off work again on August 21, 1985 
 
            (jt. ex. 1, Colby, p. 10).  She returned to work on March 
 
            25, 1986 (jt. ex. 1, Colby, pp. 12, 62).  This is a period 
 
            of 30.857 weeks.
 
            
 
                 Claimant was taken off work again on May 9, 1986, by 
 
            Dr. Colby (jt. ex. 1, Colby, p. 14) and never did return to 
 
            work after that date.  However, when she was seen by Dr. 
 
            Carlstrom on May 27, 1986, he indicated that she had 
 
            attained maximum medical improvement.  He said that she was 
 
            experiencing myofascial symptoms.  He did not believe that 
 
            further treatment would benefit her.  Furthermore, he did 
 
            not recommend any further evaluation either.  He discouraged 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            pain clinics and discussed this with her.  He recommended a 
 
            job change and a job rehabilitation effort and stated that 
 
            she should not return to the same type of activity she was 
 
            doing even if she becomes asymptomatic.  At that time he 
 
            awarded a permanent functional impairment rating of 4 
 
            percent to the body as a whole based upon a slightly 
 
            diminished range of motion of her back.  Attainment of 
 
            maximum medical improvement and the award of a permanent 
 
            impairment rating terminate healing period.  The period of 
 
            time from May 9, 1986, to May 27, 1986, is 2.571 weeks.
 
            
 
                 The above periods of temporary disability total 35.142 
 
            weeks.
 
            
 
                 Dr. Emerson recommended the low back institute, but 
 
            claimant refused to go.  Therefore, her temporary disability 
 
            cannot be extended on the grounds that defendants denied her 
 
            this treatment.  Also, Dr. Burton recommended percutaneous 
 
            radio-frequency facet nerve blocks performed under epidural 
 
            block and epidural steroid administration followed by an 
 
            examination and therapy by the spinal therapist at The 
 
            Institute for Low Back Care on April 8, 1987 (jt. ex. 1, 
 
            Institute for Low Back Care, p. 2).  Claimant's healing 
 
            period cannot be extended on the basis of this 
 
            recommendation for the reason that claimant had already 
 
            attained maximum medical improvement and whether this 
 
            treatment would have produced positive or negative effects 
 
            is entirely speculative
 
            
 
                       entitlement to permanent disability
 
            
 
                 It is determined that claimant has sustained a 40 
 
            percent industrial disability to the body as a whole.
 
            
 
                 Claimant, born August 19, 1941, was 43 years old at the 
 
            time of the injury and 47 years old at the time of the 
 
            hearing.  The injury is more serious because claimant was at 
 
            the peak of her earnings career when the disability 
 
            occurred.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 
 
            (Appeal Decision April 28, 1989).  
 
            
 
                 Dr. Carlstrom, defendants' evaluator, imposed a lifting 
 
            restriction of 25 to 30 pounds on an absolute basis and 10 
 
            to 12 pounds repetitively.  He did not believe that she 
 
            would tolerate forward bending or working in cramped 
 
            positions.  He stated these restrictions should be 
 
            considered permanent.  This would foreclose or tend to 
 
            foreclose many of claimant's prior employments such as 
 
            waitress, seamstress, production worker of motor homes, key 
 
            punch operator and clerical employee.  Claimant was 
 
            self-employed for nine months in 1978 in a furniture 
 
            refinishing and reupholster business (tr. p. 30).  Dr. 
 
            Carlstrom unequivocally stated that claimant should not 
 
            return to her employment with employer.  Therefore, she is 
 
            foreclosed from (practically) the only employment that she 
 
            has performed during the past 17 years of her employment 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            life since 1972.  Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe 
 
            Products Co., I Iowa Industrial Commissioner Report 282 
 
            (1984).  This again is a serious measure of industrial 
 
            disability and loss of earnings capacity.
 
            
 
                 Claimant received several permanent functional 
 
            impairment ratings from the various doctors who treated her 
 
            or evaluated her.  Dr. Colby determined a permanent 
 
            impairment of 15 percent to the body as a whole and this 
 
            rating included 10 percent for pain (jt. ex. 2, p. 17).  Dr. 
 
            Carlstrom awarded claimant a 4 percent permanent impairment 
 
            rating to the body as a whole which did not have any 
 
            allowance for pain (jt. ex. 1, Carlstrom, p. 2; jt. ex. 2, 
 
            p. 16).  Dr. Dunn recommended a permanent impairment rating 
 
            of 14 percent to the body as a whole (jt. ex. 1, Dunn, p. 
 
            2).  Dr. Carignan determined that claimant has sustained a 
 
            permanent functional impairment of 33 percent of the body as 
 
            a whole and gave a detailed breakdown of how he arrived at 
 
            this figure (jt. ex. 1, Carignan, p. 4; jt. ex. 3, pp. 
 
            5-30).  Doctors Reisdorf, Emerson and Burton did not give 
 
            impairment ratings and apparently were not asked to do so.  
 
            
 
                 Claimant is a high school graduate.  She later attended 
 
            the Hamilton School of Business in Mason City and graduated 
 
            in 1970 with a certificate in business machines and office 
 
            procedures (tr. p. 9).  In 1970, she also attended Twin 
 
            Cities Occupational-Industrial Center in Minneapolis and 
 
            obtained a certificate of completion in key punch (jt. ex. 
 
            1, vocational rehabilitation, p. 4).  Claimant also 
 
            completed a three-credit-hour course at Northern Iowa Area 
 
            Community College in human relations.  She also completed a 
 
            course of introduction to word processor (tr. p. 73).  
 
            
 
                 Claimant was examined at the Mercy Hospital Medical 
 
            Center, Medical Occupational Evaluation Center, on September 
 
            10, 1986.  She complained of back pain aggravated by such 
 
            activities as prolonged sitting, standing, walking, lying in 
 
            one position for too long, or attempting to bend, lift, or 
 
            stoop.  Claimant was earning $6.50 per hour when her 
 
            employment with employer was terminated.  
 
            
 
                 Claimant expressed an interest in returning to school 
 
            and obtaining a real estate license to sell real estate.  
 
            She also expressed an interest in computers if she does not 
 
            have to sit in one spot too long.  The examiners at the MOEC 
 
            stated that claimant impressed them as a highly motivated 
 
            individual, was cooperative, and they felt she put forth the 
 
            maximum effort.  
 
            
 
                 The general aptitude battery (GATB) produced scores 
 
            averaged to slightly above average when compared with the 
 
            general population.  These examiners determined that there 
 
            are a goodly number of occupations for which claimant does 
 
            have the aptitude, but noted that she had a problem with 
 
            prolonged sitting.  She was suited for sales and social 
 
            service because she was an extroverted person who preferred 
 
            working with people.  A number of specific jobs and 
 
            occupations were discussed between claimant and the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            counselors.  Claimant demonstrated poor manual dexterity and 
 
            hand/eye/foot coordination (jt. ex. 1, vocational 
 
            rehabilitation, pp. 1-8).  
 
            
 
                 Claimant was examined by Roger F. Marquardt, C.R.C., 
 
            C.I.R.S., vocational specialist, on December 16, 1986.  Like 
 
            Mercy, he too concluded that claimant would not be able to 
 
            return to her past work which paid $6.50 per hour.  He said 
 
            she must adjust to earning less money (minimum wage) or 
 
            develop job skills to allow semi-skilled employment which 
 
            typically does not demand physical exertion (jt. ex. 1, 
 
            vocational rehabilitation, pp. 9 & 10).  After claimant's 
 
            consultation with Marquardt on December 16, 1986, claimant 
 
            admitted that she did not personally seek out any vocational 
 
            rehabilitation until she went to Chippewa Valley Technical 
 
            College in April of 1988.  Nor had she sought any help from 
 
            Job Service (tr. pp. 124-126).  
 
            
 
                 Claimant was tested at the Chippewa Valley Technical 
 
            College.  The tests of adult basic education (TABE) produced 
 
            as high a score as a college bound person can score which 
 
            was twelfth grade, ninth month level, in all academic areas 
 
            tested (jt. ex. 1, vocational rehabilitation, p. 13).  They 
 
            recommended employment readiness training and placement 
 
            assistance for jobs such as receptionist, insurance clerk, 
 
            bank teller, mortgage-accounting clerk and telephone sales.  
 
            Alternate recommendations were insurance technician, 
 
            administrative assistant and hotel-motel management.  
 
            Chippewa Valley stated that claimant would be "capable of 
 
            handling any sort of on-the-job training or educational 
 
            program in which she is interested." jt. ex. 1, vocational 
 
            rehabilitation, p. 13.  Retraining is one of the factors 
 
            taken into consideration in determining industrial 
 
            disability.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).  Claimant is 
 
            bright and suitable for retraining as recommended by most of 
 
            the counselors and her past academic achievements.  At the 
 
            same time, retraining would be difficult at her age and also 
 
            expensive.
 
            
 
                 Employer has offered no vocational rehabilitation 
 
            assistance.  Claimant sought her own rehabilitation 
 
            assistance by contacting Marquardt, Chippewa Falls Technical 
 
            College and Robert Krueger and Nora Slauson at the 
 
            University of Wisconsin, Stout Campus and Menomonie, 
 
            Wisconsin (tr. pp. 70 & 82; jt. ex. 1, vocational 
 
            rehabilitation, pp. 1-15).  
 
            
 
                 Claimant testified that she has constant back pain 
 
            which has increased with activity.  Claimant testified taht 
 
            she can no longer motorcycle, water ski, camp or travel 
 
            without problems (tr. p. 91).  She can no longer make neat 
 
            beds, lift, go to the store alone, carry sacks other than 
 
            one at a time.  She can not lift over 10 pounds and she 
 
            cannot ride in a car for long periods of time (tr. pp. 
 
            92-93).  Claimant's husband testified that she could no 
 
            longer water ski, motorcycle, horseback ride, travel or move 
 
            furniture to rearrange the house (tr. p. 179).  He acknowl
 
            edged that she did chop wood in late 1984, but did not chop 
 
            any wood from December 1984 to July 23, 1985 (tr. p. 180).  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            He acknowledged that they were separated from October 1985 
 
            through November 1986 (tr. pp. 180-184).  
 
            
 
                 Claimant stated that she believed that she could do 
 
            clerical work such as typing, filing and word processing if 
 
            she could vary her position.  The only job she could 
 
            possibly do for employer would be quality control work (tr. 
 
            pp. 93 & 94).  Claimant testified that she made a job search 
 
            by answering ads in the newspapers, and mailing resumes (tr. 
 
            p. 80) and that she made a job search within 30 miles of her 
 
            home at Prescott, Wisconsin at the towns of Hudson, River 
 
            Falls, Ellsworth, Red Wing, Rosemount, Hastings, Cottage 
 
            Grove, Newport and the south edge of St. Paul (tr. p. 83).  
 
            Claimant acknowledged that she worked only briefly since May 
 
            27, 1986.  Claimant acknowledged that she worked for Spectro 
 
            Alloys from August 21, 1988 to September 11, 1988, and Bersa 
 
            Die Cast for three weeks in October of 1988 (tr. pp. 129 & 
 
            130).  Claimant testified that she found some work 
 
            performing light housekeeping and being a companion to an 
 
            elderly lady from January of 1988 until the summer of 1988.  
 
            She earned $5 per hour and earned approximately $50 or $25 
 
            per week when the lady was able to pay her (tr. pp. 80 & 
 
            81).
 
            
 
                 Claimant has not demonstrated a diligent effort to find 
 
            work within her capabilities described by Mercy Occupational 
 
            and Evaluation Center, Marquardt or the University of 
 
            Wisconsin Evaluation Service, nor has she entered a 
 
            retraining program which is well within her capabilities 
 
            based upon these same vocational rehabilitation sources as 
 
            well as the test at the Chippewa Valley Technical College.  
 
            Employers are responsible for the reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire & Rubber Co., 
 
            III Iowa Industrial Commissioner Report, 279 (1982).
 
            
 
                 Although claimant had several x-rays and CAT scans, no 
 
            invasive tests or surgical procedures were performed and 
 
            claimant did not need a myelogram or magnetic resonance 
 
            imaging test to diagnose her condition.  Claimant was 
 
            treated with only conservative measures of bed rest, 
 
            medications, physical therapy and a TENS unit.
 
            
 
                 Wherefore, based upon the foregoing considerations; and 
 
            all of the factors used to determined industrial disability, 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985); and applying agency 
 
            expertise [Iowa Administrative Procedure Act 17A.14(5)], it 
 
            is determined that claimant has sustained a 40 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 200 weeks of permanent partial disability benefits.
 
            
 
                                 medical benefits
 
            
 
                 It is determined that claimant is not entitled to 
 
            $3,084.70 in medical expenses for treatment of depression 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            and psychological problems (claimant's ex. 1) for the reason 
 
            that claimant did not prove that these problems were caused 
 
            by her employment or the back injury of July 23, 1985.
 
            
 
                 For the same reason, claimant is not entitled to the 
 
            medical mileage for 730 miles (cl. ex. 2).  Also, two of 
 
            these items, Dr. Carignan and Dr. Chou (associate of Dr. 
 
            Dunn) were private evaluations recommended by claimant's 
 
            previous attorney and were not for treatment, but were 
 
            rather trial preparation expenses.
 
            
 
                                      costs
 
            
 
                 Claimant presented the following costs:
 
            
 
                 Deposition of Dr. Carignan                   $200.00
 
            
 
                 Report from Roger Marquardt                   401.10
 
            
 
                 Report of Mercy Hospital Medical Center       350.00
 
            
 
            claimant's exhibit 3
 
            
 
                 Claimant is entitled to $150 as an expert witness fee 
 
            for each of these expenses, Dr. Carignan, Roger Marquardt 
 
            and Mercy Hospital Medical Center, a total of $450.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury to her low back, a 
 
            lumbo sacral strain, on or about July 23, 1985, which arose 
 
            out of and in the course of employment with employer.
 
            
 
                 That claimant did not sustain an injury of depression 
 
            or psychological injury caused by her employment or the back 
 
            injury of July 23, 1985.  Iowa Code section 85.3(1); 
 
            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).
 
            
 
                 That claimant did prove that the injury was the cause 
 
            of both temporary and permanent disability.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 35.142 weeks of healing 
 
            period benefits.  Iowa Code section 85.34(1).
 
            
 
                 That claimant has sustained a 40 percent industrial 
 
            disability to the body as a whole and is entitled to 200 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)"u".
 
            
 
                 That claimant did not prove entitlement to the payment 
 
            of the medical expenses submitted for determination at the 
 
            time of the hearing.  Iowa Code section 85.27.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 That claimant is entitled to $450 in costs for three 
 
            expert witness fees.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant thirty-five point one 
 
            four two (35.142) weeks of healing period benefits at the 
 
            rate of one hundred sixty-nine and 38/100 dollars ($169.38) 
 
            per week in the total amount of five thousand nine hundred 
 
            and fifty-two and 35/100 dollars ($5,952.35) commencing on 
 
            July 24, 1985, and interrupted by the periods that claimant 
 
            was returned to work after that date.    
 
            
 
                 That defendants pay to claimant two hundred (200) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred sixty-nine and 38/100 dollars ($169.38) per week in 
 
            the total amount of thirty-three thousand eight hundred 
 
            seventy-six dollars ($33,876) commencing on May 27, 1986.
 
            
 
                 That defendants are entitled to a credit for 54.142 
 
            weeks of workers' compensation benefits paid to claimant 
 
            prior to hearing as stipulated to by the parties at the rate 
 
            of one hundred sixty-nine and 38/100 dollars ($169.38) per 
 
            week in the total amount of nine thousand one hundred 
 
            seventy and 57/100 dollars ($9,170.57).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of the hearing, as well as the four hundred fifty 
 
            dollars ($450) in expert witness fees awarded to claimant, 
 
            are charged to defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file a form 2a showing the payments 
 
            made to claimant prior to hearing.
 
            
 
                 That defendants file any other claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis Hanssen
 
            Attorney at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            PO Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
                                       51401 51402.20 51402.30 51108.20 
 
                                       52204 52209 51402.40 51802 51402.40 
 
                                       51803 51402.40 53102 51108.50 
 
                                       51402.60 52501 52700
 
                                       Filed February 12, 1990
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         NANCY WOOD,                   :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  800262
 
         FLEETGUARD, INC.,             :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         51401 51402.20 51402.30 51108.20 52204 52209
 
         Claimant asserted a back injury from bending and reaching at work 
 
         with no specific incident or event and there was evidence that 
 
         she complained of back pain frequently for months prior to this 
 
         injury.  Found:  Claimant proved injury because practically all 
 
         of the medical evidence supported a work-related injury and none 
 
         of the medical practitioners suggested any other cause.  Claimant 
 
         failed to prove a depression or psychological injury.  The 
 
         medical evidence went against her on that.  Medical evidence 
 
         outweighed the testimony of coemployees and claimant.
 
         
 
         51402.40
 
         Claimant proved causal connection of the injury to temporary and 
 
         permanent low back disability, but not disability due to 
 
         depression or psychological injury.
 
         
 
         51802 51402.40 
 
         Claimant awarded healing period benefits for four different 
 
         periods of time off work for 35.142 weeks.
 
         
 
         51803 51402.40 53102
 
         Claimant awarded 40 percent industrial disability to the body as 
 
         a whole.  Permanent impairment ratings were 5 percent, 14 
 
         percent, 14 percent, and 33 percent.  Permanent lifting restric
 
         tions and restrictions against bending and reaching were imposed 
 
         which foreclosed claimant from work with this employer and most 
 
         of her past employments.  Claimant was 43 years old when injured, 
 
         had a high school education plus some specialized clerical train
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         ing.  She tested well for retraining.  She did not appear to be 
 
         motivated to either seriously look for work or enter retraining.
 
         
 
         51108.50 51402.60 52501 52700
 
         
 
         Claimant did not prove psychological injury and therefore, was 
 
         not awarded these medical benefits.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NAOMI JONES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 800310
 
            LAMONI PRODUCTS,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Naomi Jones, against her employer, Lamoni 
 
            Products, and its insurance carrier, Liberty Mutual 
 
            Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury 
 
            sustained on July 22, 1985.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner at Des 
 
            Moines, Iowa on March 6, 1991.  A first report of injury was 
 
            filed on July 29, 1985.
 
            
 
                 The record consists of the testimony of claimant, of 
 
            Allen William Thompson, of Allan William Jones, of Cindy 
 
            Gillilan, of Brenda Lee Myers, of Terry Barnes and of Jim 
 
            Brackett as well as of joint exhibits 1 through 11 and 13, 
 
            as modified, through 20.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order, the prehearing report 
 
            and oral stipulations of the parties at hearing, the parties 
 
            stipulated that claimant has never returned to work 
 
            subsequent to July 22, 1985.  They further stipulated that 
 
            claimant's rate of compensation is $105.30 and that claimant 
 
            was married, was entitled to three exemptions and was 
 
            earning $150.00 per week at the time of the injury.  The 
 
            parties agreed that claimant sustained an injury which arose 
 
            out of and in the course of the employment.  Defendants 
 
            disagreed as to the correct injury date.  For reasons set 
 
            forth in the decision below, the injury date is found to 
 
            have been July 22, 1985.  The parties agreed that claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            injury is the cause of both temporary total or healing 
 
            period disability and the cause of permanent disability.  
 
            They agreed that permanent compensation, if payable, is 
 
            governed by section 85.34(2)(s).
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  The nature and extent of claimant's benefit 
 
            entitlement, including the extent of claimant's period of 
 
            healing period or temporary total disability and including 
 
            whether claimant's injury should be evaluated under section 
 
            85.34(2)(s), specifically whether claimant is entitled to 
 
            permanent total disability benefits pursuant to the final 
 
            phrase of that section and pursuant to section 85.34(3).  
 
            Defendants attempted to assert the issue of notice by way of 
 
            the prehearing report.  Notice is not included as an issue 
 
            on the hearing assignment order filed on October 30, 1990 
 
            and the pretrial conference notes of October 29, 1990 do not 
 
            indicate that notice was discussed as an issue and 
 
            erroneously omitted.  For that reason, the issue of notice 
 
            is not available to defendants as an affirmative defense.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 59-year-old woman who completed eleventh 
 
            grade, but has received neither a GED nor other formal 
 
            training.  Her work history consists of farming, 
 
            waitressing, and working on assembly lines.  She has also 
 
            worked extensively as a housewife and mother; she has seven 
 
            children and three step-children.
 
            
 
                 Claimant began work at Lamoni Products on June 18, 
 
            1984, first working as a blocker and then as a taper.  As a 
 
            taper, claimant wrapped tape around terminal wire 
 
            connections.  This involved a twisting motion using both 
 
            hands.  Claimant was to produce 250 completed tapings per 
 
            hour.  She usually did so; she worked an eight-hour or more 
 
            day.
 
            
 
                 Claimant first experienced pain with night awakening 
 
            and numbness in her right hand in approximately April 1985 
 
            with an awareness of similar pain in the left hand 
 
            approximately a month later.  Claimant's bilateral hand pain 
 
            progressed until she left work on account of the pain on 
 
            July 22, 1985.  Pursuant to McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985), such is found to be the 
 
            date of her cumulative injury.  Claimant underwent a 
 
            bilateral carpal tunnel release on July 29, 1985.
 
            
 
                 Claimant continues to have a loss of strength in both 
 
            hands.  She can do light cooking and, with difficulty and 
 
            intermittent breaks, can run a vacuum cleaner.  She cannot 
 
            dust, wash windows, garden, do yard work, mushroom hunt, 
 
            berry pick, sew or iron.  She has difficulty writing for any 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            length of time and generally cannot drive for more than ten 
 
            miles.  Claimant is unable to hold her grandchildren.
 
            
 
                 Claimant also has a nonwork-related arthritic condition 
 
            in her ankles and heels which creates problems with 
 
            standing, walking and climbing stairs.  She takes Tylenol 
 
            for her arthritic condition and for her carpal tunnel pain.
 
            
 
                 Claimant is currently receiving Social Security 
 
            disability benefits.  She expressed a desire to be employed 
 
            in order to build up Social Security retirement benefits 
 
            prior to age 65.  She has not attempted to find work, 
 
            indicating that she has never been released to do so.  
 
            Claimant believed that she would be unable to do clerical 
 
            work involving filing, writing or phone answering given her 
 
            lack of formal education; she felt she would be unable to 
 
            hold a phone or write as required for phone solicitation.
 
            
 
                 Heat shrinking is the only light-duty job available at 
 
            Lamoni Products.  That work is available only ten hours per 
 
            week.  Claimant was terminated six months subsequent to her 
 
            lay-off as no work existed for which she could be called 
 
            back given her medical restrictions.  Claimant's 
 
            restrictions and limited physical abilities preclude the 
 
            employer from rehiring her.
 
            
 
                 Claimant has never requested vocational rehabilitation.  
 
            The insurer never involved an outside vocational 
 
            rehabilitation consultant for claimant and has no in-house 
 
            staff versed in vocational rehabilitation.  Arlene Foster, a 
 
            rehabilitation nurse with Liberty Mutual, visited claimant 
 
            on one occasion.  Ms. Foster does not do vocational 
 
            rehabilitation, however.
 
            
 
                   ProCon is a telemarketing organization located in 
 
            Lamoni.  Starting pay at ProCon is $5.00 per hour.  Wal-Mart 
 
            is hiring in the Lamoni area, albeit not for full-time 
 
            positions.  It has not been demonstrated that claimant could 
 
            work at either of these businesses or in similar employment.
 
            
 
                 Gerald Paul, M.D., performed claimant's bilateral 
 
            carpal tunnel releases.  Louis F. Tribulato, M.D., managed 
 
            claimant's post-surgical care.  Both physicians are 
 
            orthopaedic surgeons.  On July 7, 1986, Dr. Tribulato 
 
            reported that claimant had reached her maximum improvement 
 
            from conservative care and opined that her permanent 
 
            impairment was 15 percent of the right hand and 20 percent 
 
            of the left hand.  Dr. Tribulato based his ratings on the 
 
            American Medical Association Guides and the American Academy 
 
            Health Center guidelines "among other things."  Dr. 
 
            Tribulato opined that claimant could do no work that 
 
            involved the use of her hands.
 
            
 
                 William P. Folck, M.D., examined claimant on October 
 
            13, 1986.  He opined that she had permanent partial 
 
            "disability" of 25 percent of the left wrist and permanent 
 
            partial "disability" of 15 percent of the right wrist and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            concluded that, given the bilateral involvement, she had an 
 
            overall permanent partial disability of 19 percent of the 
 
            body as a whole.  Dr. Folck did not believe that claimant 
 
            had a permanent disability when evaluated under the AMA 
 
            Guides only.  Dr. Folck restricted claimant from work 
 
            activities requiring stressful, forceful or repetitive 
 
            flexion and dorsiflexion of the wrists or repetitive motions 
 
            of the wrists and hands.  The doctor assumed that, if 
 
            claimant continued to experience serious pain and problems 
 
            with the use of her hands and wrists, she would not be 
 
            capable of going out and finding work consistent with her 
 
            limitations.  He felt that, were that not the case, she 
 
            could do clerical type work if such did not involve overhead 
 
            filing and could potentially work as a salesperson if such 
 
            did not involve repetitive checking out.
 
            
 
                 William R. Boulden, M.D., an orthopaedic surgeon, 
 
            examined claimant on or about May 6, 1986.  He did not 
 
            anticipate her nerves would improve further after that date.  
 
            With Thomas W. Bower, licensed physical therapist, Dr. 
 
            Boulden opined on July 10, 1986 that claimant had incurred a 
 
            five percent impairment to each hand based on measured 
 
            strength loss and discomfort.  Dr. Boulder and Mr. Bower 
 
            reported:
 
            
 
                 Clinical exam reveals a negative Phalen's maneuver 
 
                 and a negative Tinel's sign.  Range of motion of 
 
                 both wrists and hands are full with respect to the 
 
                 AMA guides.  Grip strengths are 15 kilograms 
 
                 bilaterally, pinch grasp 4.2 kilograms on the 
 
                 right and 4.0 kilogramson [sic] the left.  An EMG, 
 
                 performed by myself in May of 1986, revealed 
 
                 bilaterally prolonged median sensory latencies. 
 
                 There was also an absent median palmar latency on 
 
                 the right and prolonged palmar latency on the 
 
                 left.  In reviewing the pre-op studies, these 
 
                 values are generally improved, however, are still 
 
                 considered abnormal on the basis of textbook and 
 
                 laboratory values.
 
            
 
            (Joint exhibit 8, page 2)
 
            
 
                 Dr. Boulden opined that an individual having pain on 
 
            performing motion activities with her hands and wrists is 
 
            precluded from doing such activities either as housework or 
 
            in the work force.  Dr. Boulden restricted claimant from 
 
            work involving repetitive bending or grasping with the wrist 
 
            and from the use of laboratory equipment.  Dr. Boulden 
 
            related claimant's symptoms in 1986 to tenosynovitis of the 
 
            tendons, reporting that such is often found in individuals 
 
            with repetitive motion carpal tunnel syndrome.  Symptoms of 
 
            tenosynovitis may persist even when an individual is removed 
 
            from a repetitive motion work environment.  Stressful 
 
            activities can worsen tenosynovitis.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 As noted, our sole issue is the nature and extent of 
 
            claimant's disability.
 
            We consider first the nature and extent of any permanent 
 
            disability.  As the parties have stipulated that claimant 
 
            has a scheduled member disability compensable under section 
 
            85.34(2)(s), the ultimate legal issue presented is the 
 
            correct interpretation of that section, namely, the correct 
 
            interpretation of the following phrase:  ". . . however, if 
 
            said employee is permanently and totally disabled the 
 
            employee may be entitled to benefits under subsection 3."  
 
            Relative to the disputed phrase, claimant argues that, under 
 
            the cited section, one must determine whether an individual 
 
            who simultaneously has lost two designated members is 
 
            permanently and totally disabled industrially before one can 
 
            determine whether the individual is entitled to partial 
 
            disability compensated on the basis of 500 weeks or total 
 
            disability compensated under section 85.34(3).  Defendants 
 
            conversely argue that, regardless of any possible industrial 
 
            loss of earning capacity, the simultaneous loss of any two 
 
            designated members equals a partial disability to be 
 
            evaluated functionally under Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 We find defendants' argument ill founded for several 
 
            reasons.  Initially, the Simbro court never addressed the 
 
            permanent total disability issue presented by the last 
 
            disjunctive phrase of section 85.34(2)(s).  (We note 
 
            parenthetically that the above-cited subsection is 
 
            grammatically incorrect in that the section is a compound 
 
            complex sentence and that properly such should be designated 
 
            with the use of a semicolon after the word "such" and 
 
            preceding the word "however.")  In Simbro, were a functional 
 
            evaluation method used, claimant would have received 
 
            benefits at the rate of five percent of 500 weeks; had an 
 
            industrial method been used, claimant would have received 
 
            benefits based on 35 percent of 500 weeks.  Hence, under the 
 
            facts presented in the case, claimant had only a permanent 
 
            partial disability regardless of whether such was evaluated 
 
            functionally or industrially.  Additionally, the Simbro 
 
            court at page 889 clearly stated it was dealing with a 
 
            partial disability only, reciting:
 
            
 
                 We believe that it would be illogical to infer a 
 
                 legislative intent that a partial disability which 
 
                 falls under the parameters of paragraph (s) would 
 
                 be treated differently than other scheduled 
 
                 losses.
 
            
 
                 Simbro then provides guidance only in those cases where 
 
            a claimant's simultaneous loss of two designated members 
 
            will result in partial disability only.  It does not address 
 
            the issue of proper interpretation of the disputed phrase.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            To do so, we must return to established principles of 
 
            statutory construction.
 
            
 
                 The ultimate goal of statutory construction is to 
 
            determine and effectuate the intent of the legislature.  
 
            Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 532 
 
            (Iowa 1981).  One must look to the object to be 
 
            accomplished, the mischiefs to be remedied, or the purpose 
 
            to be served, and place on the statute a reasonable or 
 
            liberal construction which will best effect, rather than 
 
            defeat, the legislature's purpose.  City of Mason City v. 
 
            Pub. Employment Relations Bd., 316 N.W.2d 851, 854 (Iowa 
 
            1982).  All parts of the statute are to be considered 
 
            together without attributing undue importance to any single 
 
            or isolated portion.  Iowa Beef Processors, Inc., supra.  
 
            Strained, impractical or absurd results are to be avoided in 
 
            favor of a sensible, logical construction.  Ida County 
 
            Courier & Reminder v. Attorney General, 316 N.W.2d 846, 851 
 
            (Iowa 1982).  The policy is to liberally construe workers' 
 
            compensation statutes in favor of the worker.  Caterpillar 
 
            Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981).  It 
 
            is generally presumed that statutory words are used in their 
 
            ordinary and usual sense with the meaning commonly 
 
            attributed to them.  American Home Products Corp. v. Iowa 
 
            State Bd. of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981).
 
            
 
                 Defendants' argument that all simultaneous partial 
 
            losses of designated members are to be evaluated 
 
            functionally renders superfluous the final phrase of section 
 
            85.34(2)(s).  Such can hardly be an appropriate construction 
 
            as it attributes undue importance to the first portion of 
 
            the subsection while ignoring the balance of the section.  
 
            Furthermore, it is presumed that the word "however" is used 
 
            in its ordinary and usual sense.  "However" in the 
 
            improperly punctuated compound complex sentence which is 
 
            lettered subparagraph (s) of subsection 85.34(2) is a 
 
            disjunctive conjunction, meaning "in spite of that"; "on the 
 
            other hand"; or, "but."  Hence the use of the word "however" 
 
            prior to the phrase "if said employee is permanently and 
 
            totally disabled the employee may be entitled to benefits 
 
            under subsection 3" clearly demonstrates a legislative 
 
            intent that, when an employee is permanently and totally 
 
            disabled, the compensation payable may differ from the 
 
            compensation payable when an employee is only partially 
 
            disabled as a result of the work injury.  "May," when used 
 
            in a statute, confers discretion on the decision maker.  See 
 
            Iowa Bill Drafting Guide, Iowa Legislative Service Bureau.  
 
            Given such, the final disjunctive clause of section 
 
            85.34(2)(s) requires that a claimant's potential industrial 
 
            loss be evaluated where the totality of circumstances 
 
            demonstrate potential permanent total disability from 
 
            simultaneous bilateral loss of any two designated members.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            If that industrial loss equals permanent total disability 
 
            and the employee cannot fairly be compensated for the loss 
 
            otherwise, compensation is payable under section 85.34(3).  
 
            We, therefore, consider claimant's potential industrial 
 
            disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Additionally, it has been said that, for workmen's 
 
            [sic] compensation purposes, total disability does not mean 
 
            a state of absolute helplessness, but means disablement of 
 
            an employee to earn wages in the same kind of work, or work 
 
            of a similar nature, that he was trained for, or accustomed 
 
            to perform, or any other kind of work which a person of his 
 
            [sic] mentality and attainments could do.  Franzen v. 
 
            Blakley, 155 Neb. 621, 51 N.W.2d 833 (1952).  Total and 
 
            permanent disability contemplates the inability of the 
 
            workman [sic] to perform any work for which he [sic] has the 
 
            experience or capacity to perform.  Shaw v. Gooch Feed Mill 
 
            Corp., 210 Neb. 17, 312 N.W.2d 682 (1981); see also 
 
            Diederich v. Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 
 
            899 (1935).
 
            
 
                 In the instant case, claimant is a 59-year-old woman 
 
            who has performed only minimally skilled labor throughout 
 
            her life.  All of her previous employments involved use of 
 
            her hands.  All physicians agree that she has virtually no 
 
            use of her hands.  Claimant's education, age and limited 
 
            prior work experience suggest that she has limited capacity 
 
            for retraining.  Even should claimant consider retraining, 
 
            it appears no jobs are available which would accommodate her 
 
            dismal restrictions on use of her hands.  While her 
 
            functional disability under the combined values chart may be 
 
            minimal to moderate, from the standpoint of her ability to 
 
            go back to work to earn a living for herself and her family, 
 
            her disability is a total disability.  See Diederich, supra.  
 
            It is concluded that claimant is permanently and totally 
 
            disabled and that she can be fairly compensated for her 
 
            permanent total disability only through an award of 
 
            compensation under section 85.34(3).  It is concluded that 
 
            claimant is entitled to permanent total disability benefits 
 
            payable weekly during the period of her disability.
 
            
 
                 As claimant has sustained a permanent total disability 
 
            and not a permanent partial disability, the question of 
 
            cessation of healing period need not be addressed.  It is 
 
            noted that claimant's long-time treating physician, Dr. 
 
            Tribulato, found her to be maximally improved on July 7, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            1986.  Such date would represent the proper end to any 
 
            healing period entitlement.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants pay claimant permanent total disability 
 
            benefits for the period of her disability at the weekly rate 
 
            of one hundred five and 30/100 dollars ($105.30) per week.
 
            
 
                 Defendants pay claimant accrued amounts in a lump sum.
 
            
 
                 Defendants pay claimant interest pursuant to Iowa Code 
 
            section 85.30, as amended.
 
            
 
                 Defendants receive credit for all benefits previously 
 
            paid.
 
            
 
                 Defendants pay the costs of this proceeding pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. W. C. Hoffmann
 
            Mr. Jon K. Hoffmann
 
            Attorneys at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803; 1804
 
                           Filed May 29, 1991
 
                           HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NAOMI JONES,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 800310
 
            LAMONI PRODUCTS,              :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 1804
 
            Fifty-nine-year old female claimant with severe residuals on 
 
            account of bilateral carpal tunnel syndrome and related 
 
            tenosynovitis found entitled to permanent total disability 
 
            benefits under the final disjunctive phrase of section 
 
            85.34(2)(s) and section 85.34(3).  Decision interprets 
 
            section 85.34(2)(s) and distinguishes Simbro in that Simbro 
 
            dealt with permanent partial disability only.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         PORTER ROBINS,
 
         
 
             Claimant,
 
         VS.
 
                                                 File No. 800326
 
         JOHN McQUILKEN,
 
                                                   A P P E A L
 
             Employer,
 
                                                   R U L I N G
 
         and
 
         
 
         FARM BUREAU MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a ruling dismissing his petition 
 
         because he did not make a good faith attempt to comply with the 
 
         previous order to show cause filed December 8, 1986 and with the 
 
         ruling filed October 2, 1986 compelling claimant to answer more 
 
         completely certain interrogatories propounded by defendants.
 
         
 
                                   ISSUE
 
         
 
              As no briefs have been filed on appeal the ruling on 
 
         imposition of sanctions will be considered generally without 
 
         specified errors to determine its compliance with the law.
 
         
 
                             FACTS PRESENTED
 
         
 
              Claimant filed this action June 25, 1986 on behalf of the 
 
         indicates that interrogatories May 19, 1986.  Claimant failed 
 
         within thirty days as required 126.  Subsequently a ruling on on 
 
         May 6, 1986.  A letter dated defendants to claimant's attorney 
 
         were propounded to claimant on to answer those interrogatories by 
 
         Iowa Rule of Civil Procedure motion to compel filed on August 41 
 
         1986 ordered claimant to answer interrogatories within ten days 
 
         of the signing of that order.  Claimant's attorney stated in the 
 
         Analysis of Status/Certificate of Readiness for Pre-hearing and 
 
         Hearing filed September 15, 1986 that answers to the 
 
         interrogatories had been sent last month but offered no other 
 
         evidence that this had been done.  On October 2, 1986 another 
 
         ruling on motion to compel was entered which ordered claimant to 
 
         specifically answer within 10 days interrogatories 7, 12, 13, 14 
 
         and 32 propounded by defendants.  Claimant made no response to 
 
         this order, and an order to show cause was filed December 8, 
 
         1986.  Claimant replied to this order by stating "that he has 
 
         substantially answered Interrogatories 7, 12, 13, 14 and 32 and 
 
         served said answers pursuant to the Commissioner's Rules of 
 
         Practice." An order was filed on December 23, 1986 dismissing 
 
         claimant's petition.
 
         
 

 
                              APPLICABLE LAW
 
         
 
              Division of Industrial Services Rule 343-4.36, states:
 
         
 
                   If any party to a contested case or an attorney 
 
              representing such party shall fail to comply with these 
 
              rules or any order of a deputy commissioner or the 
 
              industrial commissioner, the deputy commissioner or 
 
              industrial commissioner may dismiss the action.  Such 
 
              dismissal shall be without prejudice.  The deputy 
 
              commissioner or industrial commissioner may enter an 
 
              order closing the record to further activity or 
 
              evidence by any party for failure to comply with these 
 
              rules or an order of a deputy commissioner or the 
 
              industrial commissioner.
 
         
 
                                   ANALYSIS
 
         
 
              Claimant failed to follow the Rules of Civil Procedure when 
 
         he did not answer the interrogatories within the 30 day period.  
 
         Claimant neglected to respond to defendants' motion to compel 
 
         discovery on July 10, 1986 and so defendants' motion to compel 
 
         was sustained and claimant was given 10 additional days to answer 
 
         the interrogatories.  Although in the Analysis of 
 
         Status/Certificate claimant's attorney indicated that answers 
 
         were mailed he did not state any specific time and also failed to 
 
         state any specific date in his Resistance to Motion for 
 
         Sanctions.  It is mere speculation to determine that it was in 
 
         the period ordered by the deputy.  Furthermore, defendants' 
 
         statement indicates none were received.
 
         
 
              On October 2, 1986 a Second Motion to Compel was sustained 
 
         by the deputy and claimant given 10 days for compliance.  The 
 
         file fails to show that claimant made any attempt to comply with 
 
         this order.  Defendants then filed a third motion to compel.  
 
         Again claimant failed to file any response so the deputy entered 
 
         an order to show cause.  Claimant's only response to that order 
 
         was that he had "substantially answered" the requested 
 
         interrogatories.  Claimant's response was inadequate in light of 
 
         the order sustaining the October 2, 1986 motion to compel.
 
         
 
                               CONCLUSION OF LAW
 
         
 
              Claimant has failed to follow the Iowa Rules of Civil 
 
         Procedure and has repeatedly failed to comply with the orders of 
 
         the deputy industrial commissioners.
 
         
 
              WHEREFORE, the ruling of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
          THEREFORE, claimant's petition is dismissed without prejudice.
 
         
 
         
 
                  Signed and filed this 23rd day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST 
 
                                          ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
         
 
         
 
         ROBINS V. JOHN McQUILKEN
 
         Page   3
 
         
 
         
 
         Copies To:
 
         
 
         Mr. John Behnke
 
         Attorney at Law
 
         Box F
 
         Parkersburg, Iowa 50665
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406-2107
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2906
 
                                                 Filed June 23, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         PORTER ROBINS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 800326
 
         JOHN McQUILKEN,
 
                                                   A P P E A L
 
              Employer,
 
                                                   R U L I N G
 
         and
 
         
 
         FARM BUREAU MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         2906
 
         
 
              Claimant appealed from a ruling dismissing his petition 
 
         because he did not make a good faith attempt to comply with a 
 
         previous order to show cause filed December 8, 1986 and with the 
 
         ruling filed October 2, 1986 compelling claimant to answer more 
 
         completely certain interrogatories propounded by defendants.
 
         
 
              Claimant's failure to follow the Iowa Rules of Civil 
 
         Procedure and repeated failure to comply with the orders of the 
 
         deputy industrial commissioners was proper grounds for dismissal 
 
         without prejudice of claimant's action.  Affirmed.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIMOTHY J. STANEK,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         IOWA PORK INDUSTRIES,
 
         
 
              Employer,                            File Nos. 800365
 
                                                             830437
 
         and
 
                                                A R B I T R A T I O N
 
         FIREMAN'S FUND INSURANCE CO.
 
         AND AMERICAN STATES INSURANCE             D E C I S I O N
 
         COMPANY,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in arbitration brought by the 
 
         claimant, Timothy J. Stanek, against his employer, Iowa Pork 
 
         Industries, and its insurance carriers, Fireman's Fund Insurance 
 
         and American States Insurance, as well as against the Second 
 
         Injury Fund of Iowa, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of injuries sustained on November 4, 
 
         1984 and September 2, 1986.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner at Sioux 
 
         City, Iowa on February 3, 1988.  First reports of injury were 
 
         filed on July 31, 1985 and September 8, 1986, respectively.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of joint exhibits 1 through 16.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation as regards the 
 
         November 4, 1984 injury is $206.83 and, as regards the September 
 
         2, 1986 injury, $186.86.  They further stipulated that claimant 
 
         received an injury which arose out of and in the course of his 
 
         employment as regards both injuries and that there is a causal 
 
         relationship between those injuries and claimed temporary total 
 
         disability.  They stipulated that temporary total disability 
 
         benefits were paid for those times during which such benefits 
 
         were due.  They stipulated that claimant was paid 3.8 weeks of 
 
         permanent partial disability benefits representing a two percent 
 
         loss of use of the left hand and that such is claimant's benefit 
 
         entitlement regarding the November, 1984 injury.  They stipulated 
 
         that claimant has been paid 4 1/7 weeks of compensation 
 
         representing a seven percent permanent partial impairment of the 
 
         right thumb.  The parties further stipulated that claimant's 
 
         permanent partial disability is causally related to his work 
 

 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE 2
 
         
 
         
 
         injuries.
 
         
 
              The issues remaining to be decided are:
 
         
 
              1.  Whether claimant is entitled to permanent partial 
 
         disability to the hand and not to the thumb as regards the 
 
         September 2, 1986 injury;
 
         
 
              2.  Whether claimant is entitled to payment of temporary 
 
         partial disability from January 5, 1984 to August 19, 1987; and,
 
         
 
              3.  Whether claimant is entitled to benefits under the 
 
         Second Injury Fund liability section of the Act.
 
         
 
                                REVIEW OF EVIDENCE
 
         
 
              Claimant testified that he is 27 years old having been born 
 
         on April 5, 1960. he is married and has two children.  Claimant 
 
         has been employed at Iowa Pork Industries, a loin processing 
 
         plant, since August, 1978.  Claimant completed 11.5 years of 
 
         school and received a GED in June, 1982.  He averaged "C" grades; 
 
         took basic courses only, but for one power mechanics course; and, 
 
         has no other vocational training or formal education.  Claimant 
 
         worked throughout high school as a stocker-cashier in a hardware 
 
         store where he also did seasonal window repair.  He also worked 
 
         as a stocker-cashier at a Woolco store.
 
         
 
              Claimant initially worked at Iowa Pork as a part-time 
 
         laborer wrapping and boxing product in packaging.  He next worked 
 
         as a boner processing loins and hams into boneless product.  
 
         Claimant reported that, as of October, 1978, he began training 
 
         using a regular boning knife with a 5- to 6-inch blade.  Claimant 
 
         initially boned ribs from loins.  He described the process as 
 
         follows:  The loin comes down the product table; the worker pulls 
 
         it off with the left hand and twists back with the left hand 
 
         making a one-half turn to pull the loin back; the worker then 
 
         uses a knife in the right hand to debone the product.
 
         
 
              Claimant stated that workers at the plant are paid a base 
 
         wage with laborers receiving approximately $1-$1.50 less than 
 
         knife or saw laborers.  Incentive pay is also earned.  With 
 
         loins, incentive is based on the overall loin line production 
 
         with a greater incentive rate when a greater amount of product is 
 
         produced.  A laborer's hourly incentive is based on the base 
 
         wage.  Ham and picnic incentive is based on the worker's own rate 
 
         of production.  Claimant reported that ribs were boned at a fast 
 
         rate with 10-11 hours of work done in a six-hour day.  He 
 
         reported that 200-300 boxes of loins, or 800 loins, would go down 
 
         the line each hour.  Two or three people would be boning at one 
 
         time.  Each individual would bone approximately 250-275 ribs per 
 
         hour.
 
         
 
              The base rate for boning loins was $7.80 per hour.  The loin 
 
         or rib boning was done approximately six to eight months per 
 
         year.  Hams were boned during the loin off-season at a base rate 
 
         of $7.55 per hour.  Claimant described the ham boning process as 
 
         follows:  The product is pulled off the line with a twisting 
 
         motion and the main bone is cut from the ham with a twisting and 
 
         curving motion.  Claimant reported that approximately 80-90 hams 
 
         were boned in an hour.  Claimant's incentive pay as a ham boner 
 
         was between $10-$11 per hour.  Claimant had to bone 50 hams per 
 
         hour to make his base pay.
 
         
 
              Iowa Pork had a beef processing line for approximately four 
 
         months during Summer, 1984, with a base rate of $7.55 per hour.  
 
         Claimant characterized the beef processing line as one of the 
 
         hardest things he had done and reported that workers were pushed 
 
         very hard."  He reported that the beef processing line boned 
 
         chucks, that is, old cows or bulls with weights of up to 200 
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   3
 
         
 
         
 
         pounds and that all bones had to be pulled out with the left hand 
 
         while cutting from the chuck with the right hand.  The plant 
 
         returned to pork processing in Fall, 1984.
 
         
 
              Claimant testified that, in November, 1984, he visited R. L. 
 
         Morgan, M.D., on account of swelling or dull pain at the bottom 
 
         of his left wrist.  Claimant was boning ribs and blades at that 
 
         time.  Claimant testified that Motrin was prescribed for the 
 
         swelling and that he received physical therapy for his thumb 
 
         consisting of whirlpool soaks.  A brace to be worn on the job was 
 
         prescribed.  Claimant was off work until January 2, 1985.  He 
 
         noticed no improvement in the condition of his hand while off 
 
         work.
 
         
 
              Following his work return, claimant was moved to a labor 
 
         packaging job as he was medically restricted from continuing a 
 
         knife job.  Claimant reported that that involved packaging, 
 
         wrapping and boxing boneless loin product weighing approximately 
 
         eight pounds.  He reported that he ran the vacuum pack machine 
 
         and did maintenance consisting of changing film rolls weighing 
 
         approximately 20 pounds as wen as taking out product, labeling 
 
         it, boxing it and sending it down the line.  Claimant continues 
 
         to do this job. He reported that his initial base pay was  $6.55 
 
         per hour.  Subsequent raises have resulted in a base of $6.80 per 
 
         hour.  Claimant reports that he receives the same hours of 
 
         incentive pay as would a knife worker, but that incentive 
 
         correlates with base wage.
 
         
 
              Claimant testified he compensated for his left hand 
 
         difficulties by further use of his right hand.  Claimant reported 
 
         that, in September, 1986, he experienced right hand numbness and 
 
         tingling in the palm of the hand with pain, similar to his left 
 
         hand pain.  He saw Dr. Morgan.  Claimant was off work for two 
 
         weeks in September, but received no treatment other than a 
 
         referral to David G. Paulsrud, M.D.
 
         
 
              Claimant reported he continues to experience pain.  He 
 
         characterized the temperature in his work environment as 40 
 
         degrees or less and indicated that cold, wet weather aggravates 
 
         his pain and discomfort.  Claimant reported that, at times, he 
 
         wears gloves in the plant, but that this is not possible with 
 
         some jobs and that the gloves do not decrease his pain or 
 
         discomfort.  He characterized most jobs as painful.  Claimant 
 
         located his pain in both the right hand and left hand as at the 
 
         base of the hand into the wrist on both sides.  He reported that 
 
         he takes aspirin or Tylenol once in a while, but that his pain 
 
         remains fairly persistent while working.  Claimant reported that 
 
         twisting is difficult as is gripping objects.  He reported that 
 
         he can use only tools such as screwdrivers and that he can shovel 
 
         snow or do other jobs requiring grip strength for a only a short 
 
         time.  Claimant reported that he can no longer play a drum, 
 
         although he stated he had purchased a drum approximately a year 
 
         ago.  Claimant plans to continue working at Iowa Pork 
 
         Industries.
 
         
 
              Claimant characterized as wrong a statement in exhibit 3 
 
         that he had worked at Iowa Beef Products and reported that 
 
         exhibit 11 incorrectly reports that he worked with a wizard 
 
         knife.  Claimant reported that statements of Dr. Paulsrud in 
 
         exhibits 9 and 10 should refer to the right thumb and not to the 
 
         left thumb.
 
         
 
              Subsequent to claimant's referral to Dr. Paulsrud who is an 
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   4
 
         
 
         
 
         orthopedist, Bruce Butter, Jr., M.D., a hand specialist, saw 
 
         claimant.
 
         
 
              Claimant had fractured his arm or wrist at age 12, but 
 
         characterized that fracture as occurring a couple of inches above 
 
         his wrist.  He jammed his thumb while playing basketball 
 
         approximately four or five years ago, but indicated that the jam 
 
         was at the second joint of the thumb and not at the location of 
 
         his present pain which he agreed had been described as at the 
 
         carpal metacarpal joint.  Claimant agreed that he had not told 
 
         doctors, other than Chester Thompson, M.D., of his wrist 
 
         fracture.  Claimant agreed that his decrease in pay resulted from 
 
         problems with his right hand.
 
         
 
              Claimant saw Dr. Thompson for evaluation, but not treatment, 
 
         in August, 1987.  Claimant had not seen any doctor prior to Dr. 
 
         Thompson since his initial problems.  Claimant agreed that his 
 
         complaints as of August, 1987, were of pain with pressure at the 
 
         base of his thumb and that Dr. Thompson's statements in his 
 
         August 27, 1987 report were approximately correct in describing 
 
         what claimant had reported to the doctor.
 
         
 
              A report of Rex Morgan, M.D., of December 14, 1984 indicates 
 
         that claimant was seen for pain and swelling of the left MC joint 
 
         -- thumb.  The report indicates that x-rays taken were negative 
 
         and that no permanent defect or scarring was anticipated.  
 
         Claimant was referred to Dr. Paulsrud who saw him on December 27, 
 
         1984.  Dr  Paulsrud stated that claimant had a painful left thumb 
 
         with his work which is heavy, repetitive use of his hand.  
 
         Diagnosis was traumatic arthritis in the carpal metacarpal joint.  
 
         The doctor indicated that he did not have a lot to suggest to 
 
         claimant other than to change his work.    Claimant was given a 
 
         work release stating "[M]ay return to work but is to do only 
 
         light duty with his left hand till his next appt. which is 
 
         Monday, 02/11/85, with Dr. Butler.
 
         
 
              On June 12, 1985, Dr. Paulsrud indicated that Dr. Butler had 
 
         seen claimant who was asymptomatic and doing well on the job.  No 
 
         indication for steroid injection existed.  The doctor would not 
 
         inject or consider surgical reconstruction of claimant's 
 
         ligamentous support.
 
         
 
              Dr. Butler saw claimant on October 9, 1985.  Claimant was 
 
         reported as continuing to get along fairly well with his adjusted 
 
         job situation.  The base of the thumb was still prominent, still 
 
         uncomfortable on grind testing and it was reported that surgical 
 
         intervention "may well come" in the future.  Claimant was 
 
         released from close follow-up, but was to return on an as-needed 
 
         basis should he have any unusual discomfort or be unable to 
 
         perform his job.  The doctor reported that he did not believe 
 
         that a final disability evaluation was then warranted.
 
         
 
              On February 11, 1985, Dr. Butler reported that a good 
 
         possibility existed that a prosthetic replacement of the carpal 
 
         metacarpal joint of claimant's left thumb would be necessary in 
 
         the future, particularly if claimant continued to use the thumb 
 
         as strenuously as he had in the past.  He reported that claimant 
 
         was very young to consider a surgical approach and that he had 
 
         recommended claimant be kept on permanent light-duty stating that 
 
         claimants job had been adjusted so.he was not using the knife.
 
         
 
              Dr. Morgan took claimant off work on September 9, 1986 and 
 
         referred him to Dr. Paulsrud for a September 16, 1986 
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   5
 
         
 
         
 
         appointment.  Dr. Morgan reported that claimant had tenderness 
 
         and numbness in his right thumb and that claimant opened and 
 
         closed his hand frequently at work and had developed numbness and 
 
         tingling of the right thumb approximately two months ago (as of 
 
         September 2, 1986).  Dr. Morgan did not then anticipate any 
 
         permanent detect or scarring.  On September 16, 1986, Dr. 
 
         Paulsrud reported that claimant had a current complaint of aching 
 
         left thumb with a then-present history of "...now having aching 
 
         in the left thumb carpal metacarpal joint." (joint exhibit 9).  
 
         Examination demonstrated some mild synovial swelling.  Claimant 
 
         was reported as having pain with stressing of the joint.  
 
         Diagnosis was of traumatic synovitis thumb MP joint.  The doctor 
 
         reported he had told claimant that, as long as he continues doing 
 
         what he is doing, he is probably going to wear this [thumb] out 
 
         as well.  Dr. Paulsrud released claimant for work on September 
 
         17, 1986 with a restriction of "No heavy use left thumb. (Joint 
 
         exhibit 10).
 
         
 
              Dr. Butler saw claimant on December 1, 1986.  He reported as 
 
         follows:
 
         
 
              This young man I saw several years ago for his left 
 
              thumb CM joint.  He had been working with a wizard 
 
              knife for years up to that point in time.  That sort of 
 
              resolved but now the right thumb is painful at the 
 
              base.  His job has been changed somewhat to try to 
 
              spare him some of the serious discomfort.  Clinically 
 
              the dorsum of the joint is swollen.  On x-ray there is 
 
              traumatic arthritis.  With no known history of isolated 
 
              trauma it is my feeling that the number of years this 
 
              young man spent on the knife predisposed him to this 
 
              carpal metacarpal joint arthritis.  It is most unusual 
 
              in a young man but he has been working in the meat 
 
              industry for nine years and he is only 26 now.  There 
 
              is no indication for surgery at this time.  He is still 
 
              doing rather well.  Should the thumb become very 
 
              painful he will contact the office and will be brought 
 
              in for steroid injection.
 
         
 
              Chester Thompson, Jr., M.D., examined claimant and reported 
 
         on August 19, 1987 that claimant had a five percent loss of 
 
         flexion in the left thumb and ten percent in the right.  He 
 
         indicated claimant had pain with pressure in the metacarpal joint 
 
         and pinch strength testing was reduced between the thumb and 
 
         fingertips of the little and ring fingers of both hands.  Grip 
 
         strength was reported as fairly strong in the right and slightly 
 
         reduced in the left.  No evidence of joint swelling was seen and 
 
         an x-ray report reviewed did not indicate any definite bony 
 
         abnormalities.  The doctor opined that claimant had a five 
 
         percent "disability" rating of the left thumb and a seven percent 
 
         "disability" of the right.  He indicated, as related to the hand, 
 
         this would result in a two percent "disability" in the left hand 
 
         and a three percent disability" in the right.
 
         
 
              In answers to interrogatories, claimant reported that, 
 
         because of his hand problem, he earned $52 less per week because 
 
         he had to bid a job paying $1.30 less per hour.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              We first address claimant's claim for entitlement to 
 
         temporary partial disability under section 85.33(2).  That 
 
         subsection provides:
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   6
 
         
 
         
 
         
 
              "Temporary partial disability" or "temporary, partially 
 
              disabled" means the condition of an employee for whom 
 
              it is medically indicated that the employee is not 
 
              capable of returning to employment substantially 
 
              similar to the employment in which the employee was 
 
              engaged at the time of injury, but is able to perform 
 
              other work consistent with the employee's disability.  
 
              "Temporary partial benefits" means benefits payable, in 
 
              lieu of temporary total disability and healing period 
 
              benefits, to an employee because of the employee's 
 
              temporary partial reduction in earning ability as a 
 
              result of the employee's temporary partial disability.  
 
              Temporary partial benefits shall not be considered 
 
              benefits payable to an employee, upon termination of 
 
              temporary partial or temporary total disability, the 
 
              healing period, or permanent partial disability, 
 
              because the employee is not able to secure work paying 
 
              weekly earnings equal to the employee's weekly earnings 
 
              at the time of injury.
 
         
 
              Permanent means for an indefinite and undeterminable period. 
 
          Wallace v. Brotherhood of Locomotive Firemen and Enginemen, 230 
 
         Iowa 1127, 1130, 300 N.W. 322, 324 (1941).  Garden v. New England 
 
         Mutual Life Insurance Co., 218 Iowa 1094, 1104, 254 N.W. 287, 292 
 
         (1934).  "Permanent" means continuing or enduring without 
 
         fundamental or marked change.  Websters Ninth New Collegiate 
 
         Dictionary, copyright 1983, page 876.
 
         
 
              "Temporary" means lasting for a limited time.  Webster's 
 
         Ninth New Collegiate Dictionary, copyright 1983, page 1214.
 
         
 
              Claimant contends that he is entitled to receive temporary 
 
         partial disability benefits from January 5, 1985 when he returned 
 
         to work on light-duty at a lower pay rate until August 19, 1987 
 
         when Dr. Thompson provided a disability rating regarding his 
 
         condition.  The brief of defendant Fireman's Fund Insurance, 
 
         filed April 29, 1988, succinctly analyzes this issue.  We adopt 
 
         that analysis which reads as follows:
 
         
 
              Section 85.33(2) provides for the payment of weekly 
 
              benefits where there is a temporary partial reduction 
 
              in earning ability.  Upon his return to work after the 
 
              injury to his left thumb the claimant started working 
 
              as a laborer in packaging, a job that he still performs 
 
              to this day.  When Dr. Paulsrud released the claimant 
 
              to return to light duty work on December 28, 1984, he 
 
              also referred to a hand surgeon, Dr. Butler [sic] to 
 
              evaluate the claimant.  Dr. Butler saw on February 11, 
 
              1985, and decided that was too young for surgery.  Dr. 
 
              Butler felt that the best thing for the claimant was to 
 
              remain on light duty on a permanent basis.  There is no 
 
              evidence in the record, either medical evidence or 
 
              otherwise, to suggest that the claimant's assignment to 
 
              the laborer job in packaging was anything but a 
 
              permanent job.   Temporary partial disability benefits 
 
              are intended for the situation where the individual is 
 
              employed at a less stressful job or for lesser hours 
 
              until they are capable of return to full employment.  
 
              In this case the claimant was placed on light duty to 
 
              avoid further injury with the intention that he would 
 
              never go back to his old job.  The claimant is not 
 
              entitled to temporary partial disability benefits.
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   7
 
         
 
         
 
         
 
              We next consider the question of whether claimant's 
 
         disability is to his right thumb or to his right hand.
 
         
 
              We believe that defendant American States Insurance 
 
         correctly analyzed this issue in their brief tiled May 9, 1988.  
 
         We adopt that analysis which reads as follows:
 
         
 
              Claimant saw Dr. Morgan in September of 1986 for 
 
              complaints of his thumb.  No complaints are listed for 
 
              the hand. (Joint Exhibit 8) Dr. Paulsrud makes no 
 
              mention of the hand.  He writes:  "He is now having 
 
              aching in the left [sic] thumb carpal metacarpal 
 
              joint. (Joint Exhibit 9)  Dr. Paulsrud did not restrict 
 
              use of the hand.  He restricted heavy use of the thumb. 
 
              (Joint Exhibit 10)  Dr. Butter [sic] reported that the 
 
              right thumb is painful at the base." No mention is made 
 
              of the hand.ll) [sic]
 
         
 
              Chester Q. Thompson, Jr., M.D., is the only physician 
 
              who makes any reference to the hand.. He saw claimant 
 
              one time only for evaluation.  He begins his report by 
 
              saying claimant is being seen for evaluation of his 
 
              hands.  The history he records refers to the thumbs 
 
              only.  The pain claimant was experiencing was at the 
 
              base of his thumbs.  The loss of motion is in the 
 
              flexion of the thumbs.
 
         
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   8
 
         
 
         
 
              Pinch strength testing, a subjective test, was reduced 
 
              between the thumb and some of the fingers.  There was 
 
              no swelling and there were no abnormalities on x-ray.  
 
              Dr. Thompson first assigned impairment to the thumbs.  
 
              He subsequently converted the impairment to the hands, 
 
              even though the history, claimant's complaints and the 
 
              evaluation were confined to the thumbs.
 
         
 
              The only evidence on which impairment to the hand might 
 
              be founded is claimants testimony which these 
 
              defendants submit is not supported by medical evidence.  
 
              Claimant asserts that he told the doctors of problems 
 
              with his hands.  Those complaints were not recorded by 
 
              any of the four health care practitioners who treated 
 
              or examined him.  Any permanent functional impairment 
 
              should be confined to claimants thumb.
 
         
 
              Defendant American States Insurance is not liable for 
 
         benefits for permanent partial impairment to claimant beyond the 
 
         benefits already paid relative to claimant's right thumb.
 
         
 
              We reach the question of whether claimant is entitled to 
 
         benefits under the Second Injury Fund Act, sections 85.63 through 
 
         85.69.  Before the Second Injury Fund Act is triggered, three 
 
         requirements must be met.  First, the employee must have lost or 
 
         lost the use of a hand, arm, foot, leg or eye.  Second, the 
 
         employee must sustain a loss or loss of use of another specified 
 
         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. The Second Injury Fund, State of 
 
         Iowa, 34th Biennial Report, Iowa Industrial Commissioner, 15 
 
         (1980); Ross v. Service Master-Story Co., Inc., 34th Biennial 
 
         Report, Iowa Industrial Commissioner, 273 (1979).
 
         
 
              Initially, we note that counsel for the Second Injury Fund 
 
         did not sign the pre-hearing report in which claimant's counsel 
 
         and counsel for Fireman's Fund Insurance agreed that claimant 
 
         sustained a two percent loss of the left hand.  Our hearing notes 
 
         also do not reflect whether the counsel for Second Injury Fund 
 
         orally joined in that stipulation.  Our pre-hearing notes do not 
 
         record any objection to that stipulation, however.  Hence, 
 
         arguably we are free to make a separate determination as to 
 
         whether claimant's original loss was to his left hand or to his 
 
         left thumb.  Given the ambiguities in the record concerning the 
 
         nature of the stipulation as to that loss, we decline to do so, 
 
         however.  Furthermore, the question of whether claimant's left 
 
         hand loss was to the hand or to the thumb has little bearing on 
 
         the outcome of this issue.  As previously discussed, claimants 
 
         loss on the right is limited to his thumb and does not extend 
 
         into his hand as required for the Act to be triggered.  For that 
 
         reason, claimant has not shown that he is entitled to benefits 
 
         under the Second Injury Fund Act. [We note that a loss to the 
 
         larger member includes a loss to the smaller member.  We 
 
         recognize, however, that the converse is not true.  Had the 
 
         legislature intended the Second Injury Fund Act to be triggered 
 
         by the loss of the thumb or another digit, it would have so 
 
         stated.]
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant has worked at Iowa Pork Industries from August, 
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE   9
 
         
 
         
 
         1978 onward.
 
         
 
              In October, 1978, claimant was trained as a boner using a 
 
         boning knife with a 5- to 6-inch blade.
 
         
 
              Claimant's work as a boner required extensive use of his 
 
         upper extremities and digits.
 
         
 
              In November, 1984, claimant complained of swelling or dull 
 
         pain at the bottom of his left wrist.
 
         
 
              Claimant received anti-inflammatory medication and physical 
 
         therapy for his left thumb at that time.  A brace was also 
 
         prescribed.
 
         
 
              Claimant's diagnosis on the left was of traumatic arthritis 
 
         in the carpal metacarpal joint.
 
         
 
              Claimant returned to work on January 5, 1985 to permanent 
 
         light duty with a restriction from heavy use of his left thumb.
 
         
 
              In September, 1986, claimant experienced right hand numbness 
 
         and tingling in the palm of the hand with pain.
 
         
 
              In September, 1986, claimant had tenderness and numbness in 
 
         his right thumb and had developed numbness and tingling of the 
 
         right thumb.
 
         
 
              Diagnosis was of traumatic synovitis of the thumb MP joint.
 
         
 
              On September 17, 1986, Dr. Paulsrud returned claimant to 
 
         work, but with a restriction of no heavy use of the left thumb.
 
         
 
              Dr. Paulsruds reference to the left thumb should read "right 
 
         thumb."
 
         
 
              Claimant's loss of use on the right is to his thumb and not 
 
         to his hand.
 
         
 
              "Permanent" means continuing or enduring without fundamental 
 
         or marked change.  Webster's Ninth New Collegiate Dictionary, 
 
         copyright 1983, page 876.
 
         
 
              "Temporary" means lasting for a limited time.  Webster's 
 
         Ninth New Collegiate Dictionary, copyright 1983, page 1214.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is not entitled to temporary partial disability 
 
         benefits from January 5, 1985 to August 19, 1987.
 
         
 
              Claimant's loss of use on the right is to his thumb and not 
 
         to his hand.
 
         
 
              Claimant is not entitled to additional permanent partial 
 
         disability benefits for his loss of use on the right beyond those 
 
         benefits already paid for loss of use of the thumb.
 
         
 
              Claimant is not entitled to benefits under the second Injury 
 
         Fund Act.
 
         
 

 
         
 
         
 
         
 
         STANEK V. IOWA PORK INDUSTRIES
 
         PAGE  10
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from this proceeding.
 
         
 
              Claimant and defendants pay equally the costs of this 
 
         proceeding with costs prorated 50% to claimant and 50% to 
 
         defendants as a whole pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of July, 1988.
 
         
 
         
 
         
 
         
 
                                        HELENJEAN WALLESER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1801.1, 1803, 3202
 
                                                  Filed July 28, 1988
 
                                                  HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIMOTHY J. STANEK,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         IOWA PORK INDUSTRIES,
 
         
 
              Employer,                             File Nos. 800365
 
                                                              830437
 
         and
 
                                                 A R B I T R A T I O N
 
         FIREMANS FUND INSURANCE CO.
 
         AND AMERICAN STATES INSURANCE              D E C I S I O N
 
         COMPANY,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         1801.1, 1803, 3202
 
         
 
              Claimant not entitled to temporary partial disability 
 
         benefits from time placed on permanent restriction on use of 
 
         thumb to time permanent partial impairment rating given.
 
         
 
              Claimants injury on the right confined to the thumb and did 
 
         not extend into the hand.
 
         
 
              Claimant not entitled to Second Injury Fund benefits where 
 
         claimed second injury was to the thumb and not to the hand.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD EVERETT COLBERT,
 
         
 
              Claimant,
 
              
 
         vs.                                        File No. 800493
 
         
 
         HAWKEYE WINDOW CLEANING,                A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and                                             F I L E D
 
         
 
         KEMPER GROUP,                                  SEP 29 1989
 
         
 
              Insurance Carrier,                    INDUSTRIAL SERVICES
 
              Defendants.
 
              
 
              
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration wherein Donald Everett 
 
         Colbert seeks to recover additional compensation for temporary 
 
         total disability, healing period and permanent partial disability 
 
         as the result of a stipulated injury that occurred on July 18, 
 
         1985.
 
         
 
              The case was heard and fully submitted at Des Moines, Iowa, 
 
         on September 28, 1989.  The record in the proceeding consists of 
 
         claimant's exhibit 1 and defendants' exhibits A through H.  No 
 
         witnesses testified.
 
         
 
                                      ISSUES
 
         
 
              The issues identified for determination are whether the 
 
         injury is a proximate cause of any temporary or permanent 
 
         disability and, if so, the nature and extent of the disability.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Donald Everett Colbert fell from a scaffold on which he was 
 
         working for his employer on July 18, 1985.  He fell approximately 
 
         25 feet, landing on his feet and then falling onto his right 
 
         wrist.  He was examined at Iowa Methodist Medical Center 
 
         emergency department and was diagnosed as having multiple 
 
         contusions secondary to the fall.  X-rays of his right wrist, 
 
         right ankle, left heel and foot were all negative (exhibit A, 
 
         page 24).  A follow-up visit of July 26, 1985 indicated that 
 
         claimant would remain off work until seen by Marvin Dubansky, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         M.D., on August 1, 1985 (exhibit A, page 44).  Claimant saw Dr. 
 
         Dubansky on August 1, 1985 as scheduled.  Dr. Dubansky at that 
 
         time issued a release to allow claimant to return to work on 
 
         August 12, 1985 (exhibit B, pages 88 and 91).  Claimant did not 
 
         return to work and was again seen by Dr. Dubansky on August 27, 
 
         1985 at which time Dr. Dubansky entered in his notes that 
 
         claimant could return to work on August 28, 1985 and that there 
 
         would be no permanent physical impairment (exhibit B, page 89).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant apparently did not return to work, but rather 
 
         sought treatment from Mark B. Kirkland, D.O., commencing 
 
         September 27, 1985.  Dr. Kirkland treated claimant with physical 
 
         therapy and recommended that claimant remain off work (exhibit B, 
 
         page 93; exhibit C, page 94).  On October 15, 1985, Dr. Kirkland 
 
         indicated that claimant would be released to return to work in 
 
         three more weeks.  This would provide a date of November 5, 1985.  
 
         November 5, 1985 is also the last day that claimant received 
 
         physical therapy for the ankles under the direction of Dr. 
 
         Kirkland (exhibit E, page 105).  On November 5, 1985, Dr. 
 
         Kirkland indicated that claimant had progressed probably as far 
 
         as could be achieved.  He recommended that claimant obtain good 
 
         high-topped working boots, but did not provide any other 
 
         restrictions or a permanent impairment rating (exhibit C, page 
 
         94).  Dr. Kirkland indicated on January 28, 1986 that the type of 
 
         boot which he had recommended was a boot normally obtained by 
 
         workers for their own function and comfort (exhibit C, page 95).
 
         
 
              On February 10, 1989, Dr. Kirkland issued a report in which 
 
         he stated that he treated claimant and then released claimant to 
 
         return to work without restrictions.  Dr. Kirkland specifically 
 
         stated that claimant does not have any permanency rating on his 
 
         foot or ankle (exhibit H, page 190).
 
              
 
              Claimant also sought treatment from Dr. Kirkland in 1987 for 
 
         back complaints.  Dr. Kirkland indicated that there was no 
 
         permanency concerning claimant's back condition (exhibit C, page 
 
         95).
 
              
 
              Claimant commenced receiving treatment for his feet, ankles 
 
         and back at the University of Osteopathic Medicine and Health 
 
         Sciences Hospital and Wilden Clinic commencing on August 1, 1986 
 
         and continuing through July 1988.  The records as shown in 
 
         exhibit F contain a variety of diagnoses with claimant's symptoms 
 
         and complaints being essentially chronic, but with some 
 
         resolution and some recurrence.  At no point in any of those 
 
         records or notes is it indicated that claimant is unable to 
 
         engage in employment.  At times, it appears as though claimant 
 
         was receiving treatment while he was employed.  The records do 
 
         not show that any permanent impairment ratings were ever 
 
         assigned, although Gerald J. Cooper, D.O., did impose 
 
         restrictions on bending, stooping, lifting and climbing ladders 
 
         (exhibit F, pages 177, 182 and 185).  All diagnostic testing 
 
         failed to demonstrate any clearly defined objective abnormality 
 
         to support claimant's complaints.
 
         
 
              Claimant did not appear and testify at hearing and the case 
 
         was submitted entirely upon the exhibits.
 
         
 
              The medical bills for the expenses claimant incurred were 
 
         not received into evidence.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 18, 1985 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).
 
         
 
              The parties stipulated that claimant sustained an injury on 
 
         July 18, 1985 which arose out of and in the course of his 
 
         employment.  The fall from the scaffold is the only injurious 
 
         event which the record indicates occurred on that date and it is 
 
         therefore determined that whatever injuries were sustained in 
 
         that incident are the responsibility of the employer.
 
              
 
              Claimant was off work until released effective November 5, 
 
         1985 by Dr. Kirkland.  This provides a span of 15 5/7 weeks.  It 
 
         is recognized that Dr. Dubansky had previously released claimant 
 
         to return to work, but the claimant was still quite symptomatic 
 
         at that time and did not return to work.  The evidence therefore 
 
         establishes that the claimant was temporarily disabled from the 
 
         time of injury until and through November 5, 1985.
 
         
 
              The evidence shows a long-standing course of treatment for 
 
         complaints regarding claimant's back, feet and ankles, but the 
 
         evidence likewise fails to show any abnormality affecting the 
 
         function of those parts of claimant's body.  The evidence in the 
 
         case does not clearly demonstrate that claimant was unable to 
 
         engage in employment during the time he received the treatment 
 
         through the University of Osteopathic Medicine and Health 
 
         Sciences and Wilden Clinic.  The evidence in this case fails to 
 
         show that any physician has assigned a rating of permanent 
 
         impairment affecting any part of claimant's body allegedly 
 
         injured on July 18, 1985.  The restrictions recommended by Dr. 
 
         Cooper are not indicated by him to have been a result of the July 
 
         18, 1985 injury.  It is therefore determined that claimant is not 
 
         entitled to recover any compensation for permanent partial 
 
         disability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Since the medical expenses were not entered into evidence, 
 
         an award under Code section 85.27 cannot be made.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Donald Everett Colbert was a resident of the state of 
 
         Iowa and was injured within the state of Iowa on July 18, 1985 
 
         when he fell from a scaffold in the course of his employment with 
 
         his employer.
 
         
 
              2.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from July 18, 1985 through 
 
         November 5, 1985 when claimant was released to return to work 
 
         without any restrictions.
 
              
 
              3.  Claimant has failed to introduce evidence showing it to 
 
         be probable that he sustained any permanent disability as a 
 
         result of that July 18, 1985 fall.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Donald Everett Colbert is entitled to recover 15 5/7 
 
         weeks of compensation for temporary total disability payable at 
 
         the stipulated rate of $152.33 per week commencing July 18, 1985.
 
         
 
              3.  Claimant is not entitled to recover any compensation for 
 
         permanent partial disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant fifteen 
 
         and five-sevenths (15 5/7) weeks of compensation for temporary 
 
         total disability at the rate of one hundred fifty-two and 33/100 
 
         dollars ($152.33) per week payable commencing July 18, 1985 with 
 
         interest pursuant to Iowa Code section 85.30.  Defendants are 
 
         entitled to credit for the eight and one-seventh (8 1/7) weeks of 
 
         compensation previously paid.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED 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 29th day of September, 1989.
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. Karnale Manuel
 
         Attorney at Law
 
         108 Third Street
 
         Des Moines, Iowa  50309
 
         
 
         Mr. William D. Scherle
 
         Attorney at Law
 
         803 Fleming Building
 
         Des Moines, Iowa  50309
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                              51801
 
                                              Filed September 29, 1989
 
                                              MICHAEL G. TRIER
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                                                        
 
         DONALD EVERETT COLBERT,
 
         
 
              Claimant,
 
              
 
         vs.                                        File No. 800493
 
         
 
         HAWKEYE WINDOW CLEANING,                A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         KEMPER GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
              
 
              
 
         51801
 
         
 
              Claimant awarded temporary total disability until released 
 
         by his second treating physician, but the claim for permanent 
 
         partial disability was denied where no physician had assigned a 
 
         rating of permanent impairment or indicated that any of the 
 
         restrictions which had been recommended were proximately caused 
 
         by the original injury.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DON SANTEE,                   :
 
                                          :         File Nos. 800648
 
                 Claimant,                :                   896196
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            MAYTAG COMPANY,               :              A N D
 
                                          :
 
                 Employer,                :          R E V I E W -
 
                                          :
 
            and                           :        R E O P E N I N G
 
                                          :
 
            CONTINENTAL INSURANCE COMPANY,:         D E C I S I O N
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a consolidated proceeding in review-reopening 
 
            and arbitration brought by Don Santee, claimant, against 
 
            Maytag Company, employer, and Continental Insurance Company, 
 
            insurance carrier, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of injuries sustained 
 
            on July 26, 1985 and August 2, 1988.
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner in Des Moines, Iowa on April 
 
            4, 1991.  The record was considered fully submitted at that 
 
            time.  The parties were granted leave to submit briefs by 
 
            April 12, 1991.
 
            
 
                 The record in this case consists of joint exhibits 1 
 
            through 8 and claimant's exhibit A, as well as testimony 
 
            from claimant, Jack Reynolds, Lorin Rickabaugh, Pete D. 
 
            Owens and Randy Clausen.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on April 4, 1991, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant has experienced a change of 
 
            condition not contemplated at the time an agreement for 
 
            settlement was entered into on December 16, 1986 and, if so, 
 
            the extent of his current industrial disability; and,
 
            
 
                 2.  Whether claimant's condition was aggravated on 
 
            August 2, 1988 and, if so, whether he is entitled to 
 
            temporary total disability from August 4 through August 8, 
 
            1988.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and the 
 
            evidence contained in the list of exhibits, and makes the 
 
            following findings.
 
            
 
                 Claimant was born on November 26, 1936 and graduated 
 
            from high school in 1954.  Claimant worked as a machine 
 
            operator for Maytag Company in Hampton, Iowa from 1959 until 
 
            the plant closed in 1983.  He was transferred to the Newton 
 
            plant where he operated a press until he was injured on July 
 
            26, 1985.  Claimant filed a petition on April 17, 1986 
 
            seeking workers' compensation benefits as the result of his 
 
            July 26, 1985 injury.  On November 26, 1986, he filed an 
 
            application before the Iowa Industrial Commissioner in file 
 
            number 800648 for approval of an agreement for settlement.  
 
            Claimant was treated by Mark Brodersen, M.D., orthopaedic 
 
            surgeon, who diagnosed degenerative disc disease of the 
 
            lumbar spine based on CT scan evidence which revealed disc 
 
            bulging posteriorly at L4-5.  At that time, claimant's 
 
            complaints included constant aches and pains in his low 
 
            back; intermittent low back pain with occasional radiation 
 
            of pain down the right leg; arthritis in joints L-3, 4 and 
 
            5; occasional numbness in the legs; and limited range of 
 
            motion.  On December 4, 1985, Dr. Brodersen reported that:
 
            
 
                 My impression is that he should restrict his 
 
                 lifting to objects less than 50 pounds.  He should 
 
                 not be in a position where he would have to do 
 
                 repetitive lifting nor any repetitive bending or 
 
                 twisting.  It would be ideal if he could change 
 
                 positions from standing to sitting once in awhile.
 
            
 
            (Exhibit 1-E, page 18).
 
            
 
                 As a result of the July 1985 injury, claimant received 
 
            two days of healing period benefits.  The parties agreed to 
 
            permanent partial disability benefits of three percent of 
 
            the body as a whole and fifteen weeks of permanent partial 
 
            disability benefits.  Claimant was laid off work prior to 
 
            Christmas, 1985 and in March 1986 claimant was placed in a 
 
            top cover job which exceeded the physical restrictions 
 
            imposed by Dr. Brodersen.  He was unable to tolerate the 
 
            requirements of this job and was sent home because of pain.  
 
            The first week in April 1986, he was placed in an inspector 
 
            job in the Newton plant.  In his agreement for settlement, 
 
            claimant agreed that the physical activities required by 
 
            this job are consistent with the restrictions recommended by 
 
            Dr. Brodersen.  On December 16, 1986, the Iowa Industrial 
 
            Commissioner entered an order approving the parties' 
 
            agreement for settlement (exhibit 6, pages 12-13).
 
            
 
                 On April 10, 1989, claimant filed a review-reopening 
 
            claim in file number 800648 alleging a worsening of his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            condition since the settlement order was entered on December 
 
            16, 1986.
 
            
 
                 On April 10, 1989, claimant filed an Original Notice 
 
            and Petition, file number 896196, alleging that his back 
 
            condition was aggravated on August 2, 1988 and that he was 
 
            off work from August 4, 1988 through August 8, 1988.  He 
 
            seeks temporary total disability benefits for this injury.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            the claimant presented to Central Iowa Orthopaedics on April 
 
            13, 1987 with complaints of neck and left shoulder pain.  A 
 
            CT scan of the neck showed some degenerative disease, but no 
 
            sign of disc rupture.  Plain x-rays of the neck showed mild 
 
            degenerative disease, but no sign of work-related injury.  
 
            In a follow-up examination on April 20, 1987, claimant 
 
            complained of low back pain.  However, he did not follow up 
 
            for treatment until November 30, 1987.  A CT scan of the 
 
            lumbar spine was performed at Iowa Lutheran Hospital on 
 
            November 30, 1987.  According to Scott B. Neff, D.O., the 
 
            scan showed stenosis of the neuroforamina bilaterally at 
 
            L4-5 and a mild bulging disc of a degenerative nature at 
 
            this level (exhibit 1-L, pages 66-67).  Dr. Neff recommended 
 
            an MRI to see if other associated changes are present.  This 
 
            was performed on February 3, 1989 at Mercy Hospital Medical 
 
            Center.  Claimant then saw William R. Boulden, M.D., on 
 
            February 7, 1989.  He reported to Maytag Company that, "The 
 
            MRI showed the patient to have degenerative disc disease 
 
            L3-4 mild, L4-5, 5-S1 moderate.  There were no signs of 
 
            herniated disc or stenosis.  There was some facet 
 
            arthropathy noted at L5-S1."  (Exhibit 1-L, page 69).  It 
 
            was Dr. Boulden's opinion that claimant's symptoms were 
 
            coming from soft tissue tightness and lack of rehabilitation 
 
            as well as his underlying disc disease.  He recommended 
 
            mobilization therapy of the spine and stabilization 
 
            exercises (exhibit 1-L, page 69).
 
            
 
                 Because of claimant's persistent symptoms, Dr. Neff 
 
            referred him to the spine clinic at the University of Iowa 
 
            Medical Center.  On June 8, 1989, claimant completed a 
 
            comprehensive Back Pain Questionnaire and, on July 6, 1989, 
 
            he was seen in the spine clinic.  Physical examination 
 
            revealed straight leg raising to 90 degrees bilaterally and 
 
            no sign of any nerve root irritation.  Reflexes were equal 
 
            bilaterally and back range of motion was described as good.  
 
            He was found to suffer from degenerative disease of the 
 
            spine and since no signs of any nerve root impingement or 
 
            stenosis were identified, he was placed on anti-inflammatory 
 
            drugs and a course of exercises for range of motion and 
 
            muscle strengthening.  Light work duty with lifting no more 
 
            than 30-40 pounds and limited bending were allowed (exhibit 
 
            1-P, page 103).
 
            
 
                 On November 3, 1989, claimant was seen by Richard M. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Moe, M.D., for back problems.  Claimant related that he had 
 
            been out hunting and had no physical problems, except that 
 
            carrying the gun seemed to bother his arm.  He also related 
 
            that a couple of years ago, two of his fellow workers picked 
 
            him up, one at the trunk and one at his legs, and lifted him 
 
            in the air.  Not long afterwards, he began having a 
 
            worsening of his back condition.  He stated that this 
 
            occurred around the same time that his pickup was 
 
            significantly damaged while parked in the Maytag lot.  Dr. 
 
            Moe stated that, "Comparing the results of Dr. Broderson's 
 
            [sic] note of 1985 to his exam today, from a physical 
 
            standpoint, he doesn't appear to be worse.  In fact, to 
 
            document that he is making an effort, I would say that his 
 
            hamstrings are looser and his abdominals are stronger.  
 
            . . ."  (Exhibit 1-Q, page 108).
 
            
 
                 On November 3, 1989, claimant also saw Dr. Brodersen 
 
            for re-evaluation of his back.  He told him that he was 
 
            having fairly continuous pain and that in August he had 
 
            twisted his back and it had locked up when he was bending 
 
            over.  He stated he had been off work a month because of it.  
 
            On examination, he had no muscle spasm.  Neurologically, he 
 
            appeared normal.
 
            
 
                 Dr. Brodersen testified by deposition on July 3, 1990.  
 
            He stated that claimant's symptoms on November 3, 1989 were 
 
            the same and consistent with the 1985-1986 examination and 
 
            the MRI results in February 1989 were similar to the results 
 
            of the CT scan in 1985-1986.  Dr. Brodersen testified that 
 
            he referred claimant to Dr. McKee for a comprehensive 
 
            neurological evaluation on December 19, 1989.  Dr. McKee 
 
            found no evidence of any polyneuropathy and felt no other 
 
            work-ups were needed.  He was in a cast from December 29, 
 
            1989 through January 19, 1990.  He was last seen on February 
 
            6, 1990 and he appeared better with the use of a brace.  He 
 
            was released to return to work on February 20, 1990 for his 
 
            usual job as an inspector.  He was given the same 
 
            restrictions as on December 4, 1985.  Finally, Dr. Brodersen 
 
            testified that, in his opinion, claimant's condition has not 
 
            materially changed since 1986 nor has his job as an 
 
            inspector caused any aggravation or other changes in his 
 
            underlying disc disease since the date of the agreement in 
 
            November of 1986 (exhibit 2).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether there has 
 
            been a change in claimant's condition not contemplated by 
 
            the section 86.13 agreement of December 16, 1986; and, 
 
            whether that change in condition is causally related to his 
 
            July 26, 1985 injury.
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The required change of condition to satisfy the 
 
            requirements of review-reopening need not rest solely upon a 
 
            change of physical condition if economic hardships causally 
 
            related to a compensable injury but not contemplated within 
 
            the initial award of agreement are demonstrated.  An 
 
            increase in industrial disability may occur without a change 
 
            in physical condition.  A change in earning capacity 
 
            (subsequent to the original award) which is proximately 
 
            caused by the original injury also constitutes a change in 
 
            condition.  Blacksmith, 290 N.W.2d 348 (Iowa 1980); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            The question thus secondarily becomes whether or not 
 
            claimant's industrial disability has changed.
 
            
 
                 Claimant alleges that his condition has worsened since 
 
            he signed the agreement for settlement on December 16, 1986.  
 
            Claimant had sustained an injury arising out of and in the 
 
            course of his employment on July 26, 1985.  He was treated 
 
            by Dr. Brodersen who diagnosed degenerative disease of the 
 
            lumbar spine with a bulging disc at L4-5.  Dr. Brodersen 
 
            indicated that claimant had an impairment because of 
 
            limitation of his range of motion which would not exceed 
 
            five percent.  He restricted him to lifting objects less 
 
            than 50 pounds and to refrain from repetitive lifting, 
 
            bending and twisting (exhibit 1-E, page 18).  In deposition 
 
            testimony, Dr. Brodersen stated that claimant has the same 
 
            diagnosis today as in 1985-86 when he first treated him.  He 
 
            stated that a person with Mr. Santee's diagnosis would be 
 
            expected to have ongoing symptoms that would wax and wane 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            with activity and it would be expected that his symptoms 
 
            increase over the years as he got older.  Specifically, Dr. 
 
            Brodersen reported on March 29, 1990 that, "I do not feel 
 
            that Mr. Santee's condition has materially changed since the 
 
            date of the agreement on November 26, 1986, . . ."  (Exhibit 
 
            1-E, page 26).  In addition, he stated that, "I believe that 
 
            the restrictions that I had placed on his back remain the 
 
            same, and I do not believe that there has been any change in 
 
            his diagnosis, nor do I believe that there has been any 
 
            increase in his physical impairment."  (Exhibit 1-E, page 
 
            26).
 
            
 
                 Dr. Moe, who treated the claimant in November 1989, 
 
            concluded that his job activities do not violate the 
 
            restrictions imposed by Dr. Brodersen.  It was his 
 
            impression that "this particular collection of activities, 
 
            while they could irritate someone's back, should not bring 
 
            about a worsening of his condition necessarily."  (Exhibit 
 
            1-Q, page 106).
 
            
 
                 Comparing the results of Dr. Brodersen's note of 1985 
 
            with his examination of claimant on November 3, 1989, Dr. 
 
            Moe stated that "from a physical standpoint, he doesn't 
 
            appear to be worse.  In fact, . . . I would say that his 
 
            hamstrings are looser and his abdominals are stronger."  
 
            (Exhibit 1-Q, page 108).
 
            
 
                 Claimant testified that, except for time off work on 
 
            August 3, 4 and 5, 1988 due to disciplinary measures and 
 
            from October 1989 through February 1990, he missed no work 
 
            since March 1986 due to recurrent back problems.  There is a 
 
            discrepancy in the record regarding the reason why claimant 
 
            was off work between October 1989 and February 1990.  
 
            Claimant testified that he was in a full body cast during 
 
            that period of time.  However, he also testified that his 
 
            wife was off work after she fractured her ankle falling down 
 
            stairs.  She was off work from October 28, 1989 through 
 
            March 1990.  Dr. Brodersen testified in his deposition that 
 
            claimant was put in a body cast on December 29, 1989 until 
 
            January 19, 1990.  There is no medical evidence explaining 
 
            claimant's absence from work prior to December 29, 1989.  
 
            Nevertheless, after January 19, 1990, Dr. Brodersen 
 
            prescribed a back brace and released the claimant to return 
 
            to work on February 20, 1990.  Claimant testified that he 
 
            worked two days in February and elected to take retirement.  
 
            He retired from Maytag on February 28, 1990.  He testified 
 
            that he has not been under the care of any doctor since 
 
            February 1990 nor has he taken any pain medication or muscle 
 
            relaxers since December 1989.
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that the claimant has not 
 
            demonstrated by a preponderance of the evidence a change in 
 
            his physical condition, not contemplated at the time of the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            agreement for settlement, to warrant a change in the 
 
            original award.  The burden is on claimant to show that his 
 
            alleged increased incapacity on which he now bases his claim 
 
            is a result of the original injury.  Expert opinion does not 
 
            support the claimant's allegations in this regard.  In fact, 
 
            claimant's symptoms, according to Dr. Brodersen, seem out of 
 
            proportion to the objective evidence.  Certainly, no 
 
            physician who treated and/or examined claimant after 1986 
 
            found any justification in the medical evidence to increase 
 
            his impairment rating or further restrict his physical 
 
            capacity.  Other than the claimant's testimony that his 
 
            condition has worsened, there is no objective evidence to 
 
            support his claim.  Total reliance on claimant's testimony 
 
            would be unwarranted in this case in view of the fact that 
 
            there is conflict between claimant's testimony and the 
 
            record.  For instance, claimant testified that he is 
 
            incapacitated moreso now than in 1986 so that he is unable 
 
            to perform activities, such as hunting, which he enjoyed in 
 
            the past.  However, on November 3, 1989, when claimant was 
 
            examined by Dr. Moe, he related that, "This past weekend he 
 
            was out hunting on Saturday morning and shot some pheasants.  
 
            . . .  He didn't particularly have trouble with hunting 
 
            except that carrying the gun seemed to bother his arm in the 
 
            right lateral epicondyle area after awhile."   (Exhibit 1-Q, 
 
            page 107).  Furthermore, claimant admitted at the hearing 
 
            that he gardens on his hands and knees, an activity which 
 
            requires constant bending, pushing, pulling and reaching.  
 
            If claimant's complaints are as severe as claimed, it is 
 
            incomprehensible that he would be able to garden in the 
 
            manner alleged.
 
            
 
                 Finally, on June 8, 1989, claimant completed a Back 
 
            Pain Questionnaire at the University of Iowa Medical Center.  
 
            He indicated that, among other activities that he is unable 
 
            to perform, he can walk a mile, walk up and down stairs, 
 
            stoop over a sink, carry a bag of groceries, make a bed, 
 
            ride in a car, sit for long periods as in a movie/church, 
 
            visit friends or relatives for an evening, pick up small 
 
            children, sweep the floor with a straw broom, dress without 
 
            assistance and cook a meal (exhibit 1-P, page 86).  This 
 
            indicates to the undersigned that the claimant's complaints 
 
            are not as severe as claimed nor debilitating to the extent 
 
            asserted.  Thus, the undersigned concludes that claimant has 
 
            failed to meet his burden of proof in establishing the 
 
            necessary causal connection between his original work injury 
 
            and the current condition on which he now bases his claim.  
 
            Therefore, claimant shall take nothing from the proceeding 
 
            pertaining to file number 800648.
 
            
 
                 The next issue to be determined is whether claimant 
 
            aggravated his preexisting back condition on August 2, 1988 
 
            and whether he sustained temporary total disability from 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            August 4, 1988 through August 8, 1988.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on August 2, 1988 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. 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. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 Claimant requests temporary total disability for time 
 
            off work from August 4, 1988 through August 8, 1988 as a 
 
            result of an injury sustained on August 2, 1988.  Claimant 
 
            relates that this injury occurred either when he was lifted 
 
            up by two coworkers or when he was leaning forward in the 
 
            course of performing his job duties to catch some small 
 
            parts coming out of a spindle.  The medical evidence is 
 
            silent as to a specific injury on August 2, 1988.  As 
 
            previously noted, claimant did not see Dr. Brodersen after 
 
            1986 until November 3, 1989.  At that time, he related that 
 
            he twisted his back in August (exhibit 1-E, page 13).  In 
 
            his deposition, Dr. Brodersen testified that, according to 
 
            his records, the claimant was referring to August of 1989 
 
            (exhibit 2, page 47, lines 18-19).  In any event, whether 
 
            the incident happened in August of 1988 or August of 1989, 
 
            it was Dr. Brodersen's opinion that "it did not 
 
            substantially change or materially aggravate his underlying 
 
            degenerative disk disease."  (Exhibit 2, page 48, lines 
 
            1-4).
 
            
 
                 There is no other medical evidence in the record 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            related to an injury in August 1988 or 1989.  There is, 
 
            however, evidence that claimant was suspended from work 
 
            effective August 3 through August 5 (Wednesday-Friday) and 
 
            put on permanent probation due to a rule infraction.  
 
            Claimant had clocked in after a lunch break at 8:27 p.m. and 
 
            left the plant for one-half hour to tend to personal 
 
            matters.  He was docked for three days.  These three days 
 
            coincidentally coincide with the same time frame that 
 
            claimant was allegedly off work due to an aggravation of his 
 
            back condition.
 
            
 
                 Claimant's assertion of an injury on August 2, 1988 
 
            appears unfounded.  Therefore, he has not demonstrated by a 
 
            preponderance of the evidence that he received an injury on 
 
            August 2, 1988 which arose out of and in the course of his 
 
            employment with Maytag Company.  The greater weight of the 
 
            evidence in this regard is the testimony of Dr. Brodersen 
 
            who reported on March 29, 1990 that, "I do not feel that Mr. 
 
            Santee's job as an inspector caused any material aggravation 
 
            or permanent changes in his underlying degenerative disc 
 
            disease since November 26, 1986."  (Exhibit 1-E, page 26).  
 
            Therefore, claimant takes nothing from the proceeding 
 
            pertaining to claim number 896196.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from claim number 800648 
 
            and claimant number 896196.
 
            
 
                 Each party shall be assessed its own costs pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Ms. Patricia J. Martin
 
            Attorney at Law
 
            100 Court Avenue, Suite 600
 
            Des Moines, Iowa  50309