BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        PAUL BRUNS,
 
        
 
            Claimant,
 
        
 
                                         File No. 811654
 
        vs.
 
        
 
        TWO GUYS PLUMBING & HEATING,           APPEAL
 
        
 
            Employer,                        DECISION
 
        
 
        and
 
        
 
        USF&G FIRE & CASUALTY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying permanent 
 
        partial disability benefits as a result of an alleged injury on 
 
        November 3, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding; joint exhibits 1 through 15; and 
 
        defendants' exhibits A and B.
 
        
 
        Claimant did not timely file an appeal brief. Defendants' brief 
 
        on appeal and claimant's reply brief were considered on appeal.
 
        
 
                                      ISSUES
 
        
 
        As claimant did not file an appeal brief, the appeal will be 
 
        considered generally and without regard to specified errors to 
 
        determine its compliance with the law.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence.
 
        
 
        BRUNS V. TWO GUYS PLUMBING & HEATING
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant stored pipe in the barn on his property for the 
 
        benefit of the employer.
 

 
        
 
 
 
 
 
        
 
        2. On November 3, 1985, while attempting to retrieve pipe to be 
 
        used in the employer's shop, claimant lifted a baler causing pain 
 
        in his back and groin.
 
        
 
        3. Claimant, who had been treated by a chiropractor periodically 
 
        since 1980 for low back pain, returned to see the chiropractor 
 
        November 5, 1985 and was unable to work from November 4 through 
 
        December 15, 1985.
 
        
 
        4. Claimant received his regular wages of $275 per week while he 
 
        was unable to work from November 4, 1985 through December 15, 
 
        1985.
 
        
 
        5. Claimant returned to light duty work December 16, 1985 but 
 
        continued to experience pain.
 
        
 
        6. Claimant was referred to an orthopedic surgeon and was treated 
 
        with an injection of cortisone and bed rest.
 
        
 
        7. Claimant was unable to work from December 18, 1985 through 
 
        January 5, 1986.
 
        
 
        8. Claimant received his regular wages of $275 per week while he 
 
        was unable to work from December 18, 1985 through January 5, 
 
        1986.
 
        
 
        9. Claimant was released to return to work without restriction 
 
        effective January 6, 1986.
 
        
 
        10. Claimant returned to work and was able to perform all the 
 
        responsibilities of his regular job by January 27, 1986.
 
        
 
        11. Claimant has since changed jobs and began working at another 
 
        plumbing and heating company with essentially the same 
 
        responsibilities as he had for defendant employer.
 
        
 
        12. Claimant has been able to perform all the responsibilities of 
 
        his new job, has missed no work as a result of his back problem, 
 
        and has neither sought nor received medical treatment for any 
 
        back problem since his release to return to work January 6, 1986.
 
        
 
        BRUNS V. TWO GUYS PLUMBING & HEATING
 
        Page 3
 
        
 
        
 
        13. Claimant, who farmed 40 acres at the time of the injury, is 
 
        still able to continue in that endeavor and now farms 
 
        approximately 100 acres.
 
        
 
        14. Medical treatment which claimant received was as a result of 
 
        the injury of November 3, 1985.
 
        
 
        15. Claimant has not established any permanent restrictions, 
 
        permanent limitations in his work activity, or permanent 
 
        impairment as a result of the injury.
 
        
 
        16. Claimant incurred medical expenses in the following amounts 
 
        for the treatment of his injury:
 
        
 
        Parkersburg Chiropractic Clinic      $183.00
 
        Garry Teigland, D.O.                   23.00
 
        Jitu Kothari, M.D.                    307.00
 
        Parkersburg Pharmacy (Prescriptions)   27.83
 
        
 
                                 CONCLUSIONS OF LAW
 

 
        
 
 
 
 
 
        
 
        Claimant sustained an injury arising out of and in the course of 
 
        his employment November 3, 1985.
 
        
 
        Claimant has established that the work injury was the cause of 
 
        his disability.
 
        
 
        Claimant has failed to establish he sustained any permanent 
 
        partial disability as a result of the work injury.
 
        
 
        Claimant has established his entitlement to temporary total 
 
        disability benefits for the periods from November 4 through 
 
        November 21, 1985, and December 18, 1985 through January 5, 1986, 
 
        and defendants are entitled to a week-for-week credit for the 
 
        wages paid to claimant during these periods.
 
        
 
        Claimant has established his entitlement to medical expenses 
 
        under Iowa Code section 85.27 for the treatment of his work 
 
        injury.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That claimant is entitled to no further weekly benefits as a 
 
        result of this proceeding.
 
        
 
        BRUNS V. TWO GUYS PLUMBING & HEATING
 
        Page 4
 
        
 
        
 
        That defendants shall reimburse claimant for the following
 
        medical expenses:
 
        
 
            Parkersburg Chiropractic Clinic         $183.00
 
            Garry Teigland, D.O.                      23.00
 
            Jitu Kothari, M.D.                       307.00
 
            Parkersburg Pharmacy (Prescriptions)      27.83
 
        
 
        That defendants are to pay the costs of this action, but claimant 
 
        is to pay the costs of the transcription of the hearing 
 
        proceeding.
 
        
 
        Signed and filed this 31th day of October, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL BRUNS,
 
         
 
              Claimant,
 
                                                 File No. 811654
 
         
 
         vs.
 
         
 
         TWO GUYS PLUMBING & HEATING,             A P P E A L
 
         
 
              Employer,                          D E C I S I O N
 
          
 
         and
 
         
 
         USF&G FIRE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability benefits as a result of an alleged 
 
         injury on November 3, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; joint exhibits 1 through 15; and 
 
         defendants' exhibits A and B.
 
         
 
              Claimant did not timely file an appeal brief.  Defendants' 
 
         brief on appeal and claimant's reply brief were considered on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              As claimant did not file an appeal brief, the appeal will be 
 
         considered generally and without regard to specified errors to 
 
         determine its compliance with the law.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
         ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 

 
         
 
         
 
         
 
         BRUNS V. TWO GUYS PLUMBING & HEATING
 
         PAGE   2
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant stored pipe in the barn on his property for the 
 
         benefit of the employer.
 
         
 
              2.  On November 3, 1985, while attempting to retrieve pipe 
 
         to be used in the employer's shop, claimant lifted a baler 
 
         causing pain in his back and groin.
 
         
 
              3.  Claimant, who had been treated by a chiropractor 
 
         periodically since 1980 for low back pain, returned to see the 
 
         chiropractor November 5, 1985 and was unable to work from 
 
         November 4 through December 15, 1985.
 
         
 
              4.  Claimant received his regular wages of $275 per week 
 
         while he was unable to work from November 4, 1985 through 
 
         December 15, 1985.
 
         
 
              5.  Claimant returned to light duty work December 16, 1985 
 
         but continued to experience pain.
 
         
 
              6.  Claimant was referred to an orthopedic surgeon and was 
 
         treated with an injection of cortisone and bed rest.
 
         
 
              7.  Claimant was unable to work from December 18, 1985 
 
         through January. 5, 1986.
 
         
 
              8.  Claimant received his regular wages of $275 per week 
 
         while he was unable to work from December 18, 1985 through 
 
         January 5, 1986.
 
         
 
              9.  Claimant was released to return to work without 
 
         restriction effective January 6, 1986.
 
         
 
             10.  Claimant returned to work and was able to perform all 
 
         the responsibilities of his regular job by January 27, 1986.
 
         
 
             11.  Claimant has since changed jobs and began working at 
 
         another plumbing and heating company with essentially the same 
 
         responsibilities as he had for defendant employer.
 
         
 
             12.  Claimant has been able to perform all the 
 
         responsibilities of his new job, has missed no work as a result 
 
         of his back problem, and has neither sought nor received medical 
 
         treatment for any back problem since his release to return to 
 
         work January 6, 1986.
 
         
 
              13.  Claimant, who farmed 40 acres at the time of the 
 
         injury, is still able to continue in that endeavor and now farms 
 
         approximately 100 acres.
 
         
 
              14.  Medical treatment which claimant received was as a 
 
         result of the injury of November 3, 1985.
 
         
 
              15.  Claimant has not established any permanent 
 
         restrictions, permanent limitations in his work activity, or 
 
         permanent impairment as a result of the injury.
 
         
 
             16.  Claimant incurred medical expenses in the following 
 
         amounts for the treatment of his injury:
 
         
 

 
         
 
         
 
         
 
         BRUNS V. TWO GUYS PLUMBING & HEATING
 
         PAGE   3
 
         
 
                    Parkersburg Chiropractic Clinic     $183.00
 
                    Garry Teigland, D.O.                  23.00
 
                    Jitu Kothari, M.D.                   307.00
 
                    Parkersburg Pharmacy (Prescriptions)  27.83
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
               Claimant sustained an injury arising out of and in the 
 
         course of his employment November 3, 1985.
 
         
 
              Claimant has established that the work injury was the cause 
 
         of his disability.
 
         
 
              Claimant has failed to establish he sustained any permanent 
 
         partial disability as a result of the work injury.
 
         
 
              Claimant has established his entitlement to temporary total 
 
         disability benefits for the periods from November 4 through 
 
         November 21, 1985, and December 18, 1985 through January 5, 1986, 
 
         and defendants are entitled to a week-for-week credit for the 
 
         wages paid to claimant during these periods.
 
         
 
              Claimant has established his entitlement to medical expenses 
 
         under Iowa Code section 85.27 for the treatment of his work 
 
         injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant is entitled to no further weekly benefits as a 
 
         result of this proceeding.
 
         
 
              That defendants shall reimburse claimant for the following 
 
         medical expenses:
 
         
 
              Parkersburg Chiropractic Clinic            $183.00
 
              Garry Teigland, D.O.                         23.00
 
              Jitu Kothari, M.D.                          307.00
 
              Parkersburg Pharmacy (Prescriptions)         27.83
 
         
 
              That defendants are to pay the costs of this action, but 
 
         claimant is to pay the costs of the transcription of the hearing 
 
          proceeding.
 
         
 
         
 
              Signed and filed this 31st day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         BRUNS V. TWO GUYS PLUMBING & HEATING
 
         PAGE   4
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Gary Papenheim
 
         Attorney at Law
 
         234 3rd St
 
         Box P
 
         Parkersburg, IA 50665
 
         
 
         Mr. James E. Walsh, Jr.
 
         Mr. Bruce L. Gettman, Jr.
 
         Mr. Timothy W. Hamann
 
         Attorneys at Law
 
         P.O. Box 596
 
         Waterloo, IA 50704
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803; 2904
 
                                                   Filed October 31, 1988
 
                                                   David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL BRUNS,
 
         
 
              Claimant,
 
                                                 File No. 811654
 
         vs.
 
         
 
         TWO GUYS PLUMBING & HEATING,              A P P E A L
 
         
 
              Employer,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         USF&G FIRE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Affirmed on appeal deputy's determination that claimant had 
 
         not shown a permanent disability where he had a rating of 
 
         permanent physical impairment but was still able to perform the 
 
         duties of his job, had no medical restrictions, and had no 
 
         further need for medical treatment.
 
         
 
         2904
 
         
 
              Claimant's brief was not considered on appeal where brief 
 
         was untimely filed and objected to.  Appeal considered generally 
 
         and without regard to specified errors.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL BRUNS,
 
         
 
              Claimant,                              File No. 811654
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         TWO GUYS PLUMBING & HEATING,                D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAR 28 1988
 
         USF&G FIRE & CASUALTY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Paul Bruns, 
 
         claimant, against Two Guys Plumbing & Heating, employer, and 
 
         USF&G Fire & Casualty, insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an 
 
         alleged injury sustained November 3, 1985.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         February 29, 1988.  The record was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of claimant; Daniel Bruns, his son; and Darlene 
 
         Bruns, his wife; joint exhibits 1 through 15, inclusive; and 
 
         defendants' exhibits A and B.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 29, 1988, the issues for resolution are:
 
         
 
              1.  Whether claimant sustained an injury November 3, 1985 
 
         which arose out of and in the course of his employment;
 
         
 
              2.  Whether the alleged injury is the cause of the 
 
         disability on which claimant now bases his claim;
 
         
 
              3.  The extent of claimant's entitlement to temporary total 
 
         disability/healing period benefits, if any;
 
         
 
              4.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits, if any; and,
 
         
 
              5.  Claimant's entitlement to certain medical benefits 
 
         pursuant to Iowa Code section 85.27, if any.
 
                                                
 
                                                         
 
         
 
              Also disputed is the defendants' entitlement to credit under 
 
         Iowa Code section 85.38(2) for previous benefits which may have 
 
         been paid.  This issue, however, was not listed as an issue on 
 
         the hearing assignment order and, accordingly, the undersigned is 
 
         without jurisdiction to determine the amount of credit to which 
 
         defendants are entitled.  See Joseph Presswood v. Iowa Beef 
 
         Processors, (Appeal Decision filed November 14, 1986) holding an 
 
         issue not noted on the hearing assignment order is waived.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant, at the time of his alleged injury, was a 50 
 
         percent shareholder in Two Guys Plumbing & Heating and at all 
 
         times relevant herein received his regular wages of $275 per 
 
         week. Claimant testified he was injured November 3, 1985, when he 
 
         lifted a baler in order to get at some pipe which was stored in 
 
         his barn for the employer.  Claimant explained he had, in the 
 
         past, stored items in the barn which could not be stored at the 
 
         employer's shop and that the bundle of pipe he attempted to 
 
         retrieve on November 3 was the last bundle left in the barn.  
 
         Claimant stated that upon lifting the baler, under which the pipe 
 
         was wedged, his back immediately "gave out," that he was stooped 
 
         over, could not stand up, and that he felt severe pain in his 
 
         lower back and groin.
 
         
 
              Claimant acknowledged he has had recurring back problems 
 
         since 1980 and had periodically been treated by Tom Hoogestraat, 
 
         D.C., since then.  At the time of his deposition, claimant 
 
         testified that the pain he felt on November 3 was in the same 
 
         place as the pain for which he had sought previous treatment. 
 
         However, at the time of hearing, claimant testified his pain was 
 
         in a different place, perhaps one vertebra higher.  Claimant 
 
         returned to see Dr. Hoogestraat November 4, 1985 and was off work 
 
         pursuant to Dr. Hoogestraat's order of bed rest from November 4 
 
         through November 18, 1985.  Claimant returned to work November 22 
 
         on light duty through December 16, 1985.  He testified that he 
 
         was still having problems with his back and was referred by Dr. 
 
         Hoogestraat to Dr. Jitu Kothari, an orthopedic surgeon.  Claimant 
 
         explained Dr. Kothari treated him with a cortisone injection and 
 
         bed rest from December 18, 1985 through January 5, 1986.  
 
         Claimant was released to return to work without restriction 
 
         January 6 and worked light duty through January 27 when he 
 
         returned to full duty.  Claimant acknowledged that since his 
 
         release to return to work from Dr. Kothari, he has neither seen 
 
         nor been treated by any health care provider for any problems 
 
         with his back.  Claimant acknowledged he is able to lift, 
 
         although perhaps not as much nor for as long as he could before 
 
         his injury; and that he has returned to work for a plumbing and 
 
         heating company doing essentially the same kind of work as he did 
 
         for defendant employer, having sold his interest in Two Guys 
 
         Plumbing & Heating in October 1987.  Claimant acknowledged he has 
 
         worked without restriction, has missed no work as a result of his 
 
         back, is able to perform all his responsibilities of his job, and 
 
         that his back is fairly stable.  Claimant, who at the time of his 
 
                                                
 
                                                         
 
         injury was farming 40 acres, now farms approximately 100 acres 
 
         and is able to do most of the work but not for "long periods of 
 
         time."  Claimant testified that after approximately one hour on 
 
         the tractor his back begins to bother him whereas it was only 
 
         after two or three hours that he felt discomfort before November 
 
         1985.
 
         
 
              Claimant denied any further injury to his back since 
 
         November 1985 and describes his current symptoms as severe 
 
         stiffness in the morning, soreness if strenuous lifting is done, 
 
         and a continual aching.  For the treatment of this condition, 
 
         claimant explained that he incurred medical expenses of $183 with 
 
         the Parkersburg Chiropractic Clinic, $23 with Dr. Garry Teigland 
 
         (whom he saw on only one occasion for the purposes of securing 
 
         pain medication), $307 with Dr. Kothari, and $27.83 with the 
 
         Parkersburg Pharmacy.
 
         
 
              Daniel Bruns testified he was assisting claimant on November 
 
         3, 1985 and essentially confirmed claimant's description of how 
 
         the injury occurred.  Daniel was aware of previous problems 
 
         claimant had had with his back, but asserted claimant's current 
 
         condition was different in that claimant had previously been able 
 
         to stand up straight and had no difficulty walking.  He opined 
 
         claimant appeared to be in more pain after the November 3, 1985 
 
         incident than at any time before and that claimant is now stiff 
 
         in the morning and needs to stretch and walk around after waking. 
 
         Daniel stated claimant can ride on the tractor a maximum of two 
 
         to three hours, but that he must stop occasionally during this 
 
         period of time.
 
         
 
              Darlene Bruns confirmed the testimony of claimant and Daniel 
 
         Bruns although she did acknowledge she did not actually observe 
 
         the incident, having arrived at the barn when claimant was 
 
         stooped over complaining of back pain.
 
         
 
              Jitu Kothari, M.D., orthopedic surgeon, testified he first 
 
         saw claimant December 18, 1985 on referral from Dr. Hoogestraat 
 
         with a medical history that five years previously claimant was 
 
         hospitalized with back pain and left leg pain and had had no 
 
         problems with his back since that time.  After examination, Dr. 
 
         Kothari explained he felt claimant probably had a central lumbar 
 
         disc and treated claimant with an injection of epidural cortisone 
 
         in the lower back and complete bed rest for about a week.  When 
 
         claimant was last seen January 3, 1986, Dr. Kothari's notes 
 
         reflect claimant was improving, did not have any leg pain, and 
 
         that neurological examinations were normal.  Dr. Kothari opined 
 
         that claimant reached maximum medical healing as of January 3, 
 
         1986 and claimant was released to return to work without 
 
         restriction the following Monday, January 6.  Dr. Kothari gave no 
 
         opinion on impairment at the time of his deposition, but did 
 
         state on September 29, 1986:  "There is no permanent disability 
 
         and there is no work restriction as per the office visit on 
 
         1-3-86." (Joint Exhibit 8)
 
         
 
              Dr. Kothari stated the injury for which he was treating 
 
                                                
 
                                                         
 
         claimant was caused by lifting the baler on November 3, 1985.  
 
         When presented with some evidence that claimant may have sustained 
 
         injuries subsequent to November 3, 1985, Dr. Kothari testified:
 
         
 
              Q.  Okay.  Now, Doctor, once again my question will be, 
 
              based upon the history that Mr. Bruns apparently started to 
 
              have some back problems after lifting the baler and then he 
 
              stepped down a step and twisted his back and started to feel 
 
              some sharp pain in his low back, and then subsequent to that 
 
              on November 29, 1985, slipped on some ice and landed sharply 
 
              on his knee and developed some back pain, is there a 
 
              possibility that both of those particular incidents after 
 
              lifting the baler aggravated his condition and would not be 
 
              related to the incident with the baler?
 
         
 
              A.  Yeah, with that history, which I wasn't -- I did not 
 
              have the information with that history.  Yes, I mean his 
 
              first incident of lifting the baler was subsequently 
 
              aggravated by the second incident and the third incident 
 
              when he fell on the ice, yes.
 
         
 
              Q.  Okay.  So all the problems which he described to you 
 
              when you first saw him may not be entirely out of that baler 
 
              incident, assuming those facts?
 
         
 
                               
 
                                                         
 
              A.  That's correct.
 
         
 
              Q.  And you wouldn't have any way at this point in time in 
 
              apportioning what problems arose out of the baler incident 
 
              and what problems may have arose out of the other two 
 
              incidents?
 
         
 
              A.  No, I would not.  And, like I said, I did not -- I have 
 
              not seen Mr. Bruns since January of '86, so --
 
         
 
         (Jt. Ex. 1, pp. 19-20)
 
         
 
              However, Dr. Kothari subsequently stated:
 
         
 
              Q.  Assuming, you know, what we have gone through before 
 
              here that Mr. Bruns related to you, would you assume that 
 
              his action of lifting that baler, which he may testify to be 
 
              a hundred to two hundred pounds, would be more likely to 
 
              have resulted in this herniated disc that you have treated 
 
              him for than stepping down and twisting, you know, his back 
 
              on the step, or slipping onto one knee on ice?
 
         
 
              A.  If I understand your question right, is the act of 
 
              lifting the baler, or injury while he lifted the baler is 
 
              more likely to cause him to have back condition or back 
 
              problem than the other two?
 
         
 
              Q.  Yes.
 
         
 
              A.  Yes, he had the -- according to my note, and according 
 
              to what Mr. Bruns told me, that was the onset, onset of his 
 
              symptoms.  And the other two things were just an aggravation 
 
              of his pre-existing condition, which I am aware of now, but 
 
              I was not before.
 
         
 
              Q.  Yes.  I was comparing the three incidents and asking 
 
              which one would be more probable, you know, to be the 
 
              result?
 
         
 
              A.  Definitely, I mean the incident of the baler did cause 
 
              him to have back pain and more likely to cause his symptoms, 
 
              yes.
 
         
 
         (Jt. Ex. 1, pp. 30-31)
 
         
 
              Tom Hoogestraat, D.C., testified he first began treating 
 
         claimant December 5, 1979 for a low back involvement (subluxation 
 
         lifting) although earlier records indicate claimant was treated 
 
         beginning in February 1971 by a different chiropractor for sore 
 
         lumbar and stiffness in the lower dorsals (thoracic spine).  Dr. 
 
         Hoogestraat's records show claimant was treated for low back pain 
 
         three times in 1980, twice in 1981, three times in 1982, three 
 
         times in 1983, three times in 1984, and twice in 1985 before the 
 
         incident of November 3, 1985.  When first seen on November 4, 
 
         1985, claimant was treated conservatively using ice, heat 
 
                                                
 
                                                         
 
         therapy, ultrasound and chiropractic manipulation.  Claimant was 
 
         last seen by Dr. Hoogestraat December 14, 1985 at which time he 
 
         was referred to Dr. Kothari for evaluation and treatment.
 
         
 
              On February 10, 1987, Dr. Hoogestraat wrote:
 
         
 
                   PROGNOSIS:  Having not seen Mr. Bruns since December 
 
              14, 1985, it would be difficult to make an accurate 
 
              evaluation of his present and future disabilities.  However 
 
              upon clinical experiences and speculation, I would expect 
 
              him to possibly have further pain and discomfort and would 
 
              possibly require either chiropractic or medical care for his 
 
              low back during his lifetime.
 
         
 
                   ....
 
         
 
                   It is my opinion that Mr. Bruns's [sic] injury did 
 
              occur while lifting the baler on November 1, 1985, based on 
 
              the fact that in previous back problems he has had, he has 
 
              responded positively and rapidly to treatment and returned 
 
              to work in a few days.  However with this injury, that was 
 
              not the case.
 
         
 
                   In regards to questions as to whether the 1981 back 
 
              strain was a contributing factor, I do not recall or am 
 
              familiar with that particular incident, however it may have 
 
              been a contributing factor, but highly unlikely in my 
 
              opinion.
 
         
 
                   In regards to questions on prognosis, since I have not 
 
              examined Mr. Bruns since December 14, 1985 it is difficult 
 
              to determine whether he had lost any range of motion in the 
 
              lumbar spine.
 
         
 
                   ....
 
         
 
                   In regards to question is this condition one that 
 
              stabilizes or may it get worse over a period of time.  It is 
 
              my opinion that yes it may stabilize and never bother Mr. 
 
              Bruns again.  However, based upon clinical experience, it is 
 
              my opinion that it may possibly reoccur and even become 
 
              progressively worse during his life time, with or without 
 
              chiropractic or medical care.
 
         
 
                   Regards any work restrictions, it is my opinion, that 
 
              as long as the individual is pain free and asymptomatic, 
 
              that patient should be able to do all normal activities.  
 
              However if pain does occur he should restrict himself to a 
 
              pain free range of motion in all areas of his lifestyle.
 
         
 
         (Jt. Ex. 6)
 
         
 
              Dr. Hoogestraat opined that claimant's stepping down a step 
 
         and slipping on the ice were not separate and distinct injuries, 
 
         but rather were aggravations of the previous on-the-job injury. 
 
                                                
 
                                                         
 
         With regard to a permanent partial impairment rating, Dr. 
 
         Hoogestraat states a two to three percent whole body disability 
 
         all attributable to the November 3, 1985 injury "should be 
 
         considered."  Dr. Hoogestraat expressed his belief that each time 
 
         claimant was seen prior to the November 3, 1985 incident, 
 
         claimant made a complete recovery and that his current problems 
 
         are not in any way related to the problems for which he was seen 
 
         previously.
 
         
 
                               APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 3, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 8, 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).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
                                                
 
                                                         
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman, 261 Iowa  52, 154 N.W.2d 128.
 
         
 
              Iowa Code section 85.33(1) provides:
 
         
 
                   Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
              first.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
                                       ANALYSIS
 
         
 
              The uncontroverted evidence in the record establishes 
 
         claimant stored pipe in his barn for the benefit of the employer 
 
         and, while attempting to retrieve the pipe which was needed at 
 
         the shop, claimant injured his back.  Claimant established that 
 
         but for the necessity to retrieve the pipe, he would have had no 
 
         reason to move the baler.  It was claimant's action in moving the 
 
 
 
                               
 
                                                         
 
         baler that caused his injury.  Claimant has, therefore, sustained 
 
         his burden of establishing the injury of November 3, 1985 arose 
 
         out of and in the course of his employment.
 
         
 
              As stated above, the question of causal connection is 
 
         essentially within the domain of expert testimony.  Both Dr. 
 
         Kothari and Dr. Hoogestraat opine the injury for which claimant 
 
         was treated was caused by the lifting of the baler on November 3, 
 
         1985.  Although Dr. Kothari admits the later incident of stepping 
 
         down a step and falling on the ice may have aggravated claimant's 
 
         condition, he opines it is more probable than not that the 
 
         incident with the baler caused his symptoms.  Dr. Hoogestraat 
 
         does not consider either subsequent incident as separate or 
 
         distinct and further opines it highly unlikely claimant's 
 
         previous back strain would have been a contributing factor in 
 
         claimant's current condition.  There is no question claimant 
 
         suffered from preexisting back pain and was regularly treated by 
 
         Dr. Hoogestraat for that pain.  However, an employer takes an 
 
         employee subject to any active or dormant health impairments, and 
 
         a work connected injury which more than slightly aggravates the 
 
         condition is considered to be a personal injury.  Ziegler v. 
 
         United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              Regardless of whether claimant's injury of November 3, 1985 
 
         is considered a new injury or an aggravation of his preexisting 
 
         back problem, claimant has established the work injury of 
 
         November 3, 1985 is the cause of the disability on which he now 
 
         bases his claim.
 
         
 
              Of primary concern is whether or not claimant has sustained 
 
         any disability as a result of the work injury of November 3, 
 
         1985. A disability may be either temporary or permanent.  
 
         Generally, a claim of permanent disability invokes an initial 
 
         determination of whether the work injury is the cause of a 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.  Neither Dr. Kothari nor Dr. Hoogestraat imposed any 
 
         work restrictions or limitations on claimant's work activities.  
 
         Claimant was able, after a period of recuperation, to return to 
 
         work for defendant employer in his regular job.  After claimant 
 
         sold his shares in defendant employer's corporation, claimant has 
 
         been able to perform comparable work for another plumbing and 
 
         heating company. Claimant has missed no work as a result of this 
 
         injury and is not under the care of any medical practitioner.  
 
         Indeed, even though claimant was periodically treated by Dr. 
 
         Hoogestraat from 1979 through 1985, claimant has not returned for 
 
         any type of treatment for his back since he was referred to Dr. 
 
         Kothari in January 1986. Further, while claimant farmed only 
 
         about 40 acres at the time of his injury, he is now farming two 
 
         and one-half times that many acres.  Clearly, his work injury has 
 
         not hampered his ability to farm although claimant may be 
 
         inconvenienced by having to occasionally get off his tractor and 
 
         stretch.  Clearly, claimant's current symptoms of stiffness in 
 
         the morning which are relieved by stretching, soreness after 
 
         strenuous lifting, and achiness have not impaired his ability to 
 
                                                
 
                                                         
 
         secure and retain employment.
 
         
 
              On September 29, 1986, Dr. Kothari wrote to claimant's 
 
         counsel "there is no permanent disability..."  At the time of his 
 
         deposition, Dr. Kothari declined to render any opinion on 
 
         functional disability.  On February 10, 1987, Dr. Hoogestraat 
 
         stated "it would be difficult to make an accurate evaluation of 
 
         his present and future disabilities.  However upon clinical 
 
         experiences and speculation, I would expect him to possibly have 
 
         further pain and discomfort and would possibly require either 
 
         chiropractic or medical care for his low back during his 
 
         lifetime."  At this time, Dr. Hoogestraat gave no rating and 
 
         based his opinion on expectations, speculations and possibilities 
 
         rather than on actualities.  On August 25, 1987, Dr. Hoogestraat 
 
         wrote: "Disability rating of approximately 5 to 7 percent to the 
 
         extremities and 2 to 3 percent to the whole body should be 
 
         considered."  Dr. Hoogestraat attempts to explain how this 
 
         "disability" rating was arrived at beginning at page 18 of his 
 
         deposition.  Again, Dr. Hoogestraat appears to base his rating on 
 
         less than clinical conclusions.  Further, Dr. Hoogestraat appears 
 
         to be invading the province of the industrial commissioner by 
 
         rating "disability" rather than "impairment" which is within the 
 
         domain of the expert witness.  Therefore, the opinion of Dr. 
 
         Hoogestraat is given little weight.
 
         
 
              The parties have stipulated that if claimant has a permanent 
 
         disability, it is an industrial disability.  The legislature 
 
         intended the term disability to mean industrial disability or 
 
         loss of earning capacity.  Diederich v. Tri-City R. Company of 
 
         Iowa, 219 Iowa 587, 258 N.W.2d 899 (1935).  As claimant has 
 
         failed to show any permanent limitations imposed on his work 
 
         activity, any permanent work restrictions, any permanent physical 
 
         impairment or any loss of earning capacity, claimant has failed 
 
         to establish his entitlement to an award of permanent partial 
 
         disability benefits.
 
         
 
              Pursuant to Iowa Code section 85.33, claimant is entitled to 
 
         an award of temporary total disability benefits until he has 
 
         returned to work or is medically capable of returning to 
 
         substantially similar employment.  Therefore, claimant has 
 
         established his entitlement to an award of temporary total 
 
         disability benefits for the periods from November 4, 1985 through 
 
         November 21, 1985 and December 18, 1985 through January 5, 1986. 
 
         However, as claimant was paid his regular wages of $275 per week 
 
         for the periods of his absences and this wage exceeds the 
 
         stipulated compensation of $183.49 per week, defendants would be 
 
         entitled to a week-for-week credit as the wages are considered to 
 
         be in lieu of workers' compensation benefit payments.
 
         
 
              Finally, as claimant's injury has been found to be 
 
         compensable under the Iowa Workers' Compensation Act, defendants 
 
         are liable for the medical expenses incurred by claimant for the 
 
         treatment of the work-related injury on November 3, 1985.
 
         
 
                              FINDINGS OF FACT
 
                                                
 
                                                         
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  Claimant stored pipe in the barn on his property for the 
 
         benefit of the employer.
 
         
 
              2.  On November 3, 1985, claimant, while attempting to 
 
         retrieve pipe to be used in the employer's shop, lifted a baler 
 
         causing pain in his back and groin.
 
         
 
              3.  Claimant, who had been treated by a chiropractor 
 
         periodically since 1980 for low back pain, returned to see the 
 
         chiropractor November 5, 1985 and was unable to work from 
 
         November 4 through December 15, 1985.
 
         
 
              4.  Claimant received his regular wages of $275 per week 
 
         while he was unable to work.
 
         
 
              5.  Claimant returned to light duty work December 16, 1985 
 
         but continued to experience pain.
 
         
 
              6.  Claimant was referred to an orthopedic surgeon and was 
 
         treated with an injection of cortisone and bed rest.
 
         
 
              7.  Claimant was unable to work from December 18, 1985 
 
         through January 5, 1986.
 
         
 
              8.  Claimant received his regular wages of $275 per week 
 
         while he was unable to work.
 
         
 
              9.  Claimant was released to return to work without 
 
         restriction effective January 6, 1986.
 
         
 
              10.  Claimant returned to work and was able to perform all 
 
         the responsibilities of his regular job by January 27, 1986.
 
         
 
              11.  Claimant has since changed jobs and begun working at 
 
         another plumbing and heating company with essentially the same 
 
         responsibilities as he had for defendant employer.
 
         
 
              12.  Claimant has been able to perform all the 
 
         responsibilities of his new job, has missed no work as a result 
 
         of his back problem, and has neither sought nor received medical 
 
         treatment for any back problem since his release to return to 
 
         work January 6, 1986.
 
         
 
              13.  Claimant, who farmed 40 acres at the time of the 
 
         injury, is still able to continue in that endeavor and now farms 
 
         approximately 100 acres.
 
         
 
              14.  Medical treatment which claimant received was as a 
 
         result of the injury November 3, 1985.
 
         
 
              15.  Claimant has not established any permanent 
 
                                                
 
                                                         
 
         restrictions, permanent limitations in his work activity, or 
 
         permanent impairment as a result of the injury.
 
         
 
              16.  Claimant incurred medical expenses in the following 
 
         amounts for the treatment of his injury:
 
         
 
              Parkersburg Chiropractic Clinic          $183.00
 
         
 
              Garry Teigland, D.O.                       23.00
 
         
 
              Jitu Kothari, M.D.                        307.00
 
         
 
              Parkersburg Pharmacy (Prescriptions)       27.83
 
                                     
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment November 3, 1985.
 
         
 
              2.  Claimant has established that the work injury was the 
 
         cause of his disability.
 
         
 
              3.  Claimant has failed to establish he sustained any 
 
         permanent partial disability as a result of the work injury.
 
         
 
              4.  Claimant has established his entitlement to temporary 
 
         total disability benefits for the periods from November 4 through 
 
         November 21, 1985, and December 18, 1985 through January 5, 1986, 
 
         and defendants are entitled to a week-for-week credit for the 
 
         wages paid to claimant during these periods.
 
 
 
                              
 
                                                
 
                                                         
 
         
 
              5.  Claimant has established his entitlement to medical 
 
         expenses under Iowa Code section 85.27 for the treatment of his 
 
         work injury.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant is entitled to no further weekly benefits as a 
 
         result of this proceeding.
 
         
 
              Defendants shall pay the following medical expenses:
 
         
 
                Parkersburg Chiropractic Clinic          $183.00
 
         
 
                Garry Teigland, D.O.                       23.00
 
         
 
                Jitu Kothari, M.D.                        307.00
 
         
 
                Parkersburg Pharmacy (Prescriptions)       27.83
 
         
 
              Costs of this proceeding are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of March, 1988.
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Gary Papenheim
 
         Attorney at Law
 
         Box P
 
         Parkersburg, Iowa  50655
 
         
 
         Mr. Timothy W. Hamann
 
         Mr. James E. Walsh, Jr.
 
         Mr. Bruce L..Gettman, Jr.
 
         Attorneys at Law
 
         P.O. Box 596
 
         River Plaza Building
 
         10 West Fourth Street
 
         Waterloo, Iowa  50704
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1100; 1402.30; 14022.40;
 
                                                 1803
 
                                                 Filed 3-28-88
 
                                                 Deborah A. Dubik
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL BRUNS,
 
         
 
              Claimant,
 
                                                      File No. 811654
 
         vs.
 
         
 
         TWO GUYS PLUMBING & HEATING,              A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         USF&G FIRE & CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100; 1402.30
 
         
 
              Where there was no dispute in the testimony that claimant 
 
         stored pipe in his barn for the benefit of the employer and 
 
         claimant was attempting to retrieve this pipe when he was 
 
         injured, claimant sustained his burden of proof that his injury 
 
         arose out of and in the course of his employment.
 
         
 
         1402.40
 
         
 
              Although claimant had a history of back trouble, medical 
 
         evidence established claimant had a complete recovery after each 
 
         previous treatment, with no residual impairment.  Claimant 
 
         established the work injury was the cause of the disability.
 
         
 
         1803
 
         
 
              Where claimant had no permanent work restrictions, no 
 
         limitations in his work activity, no permanent impairment, has 
 
         been able to engage in his regular occupations, has missed no 
 
         work as a result of the injury, has neither sought nor needed 
 
         medical attention.since his release to return to work, claimant 
 
         failed to establish the work injury is the cause of any permanent 
 
         disability.
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PAUL BRUNS,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 811654
 
         
 
         TWO GUYS PLUMBING & HEATING,                   R U L I N G
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JUL 12 1988
 
         U.S.F.& G. FIRE & CASUALTY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
              Appellant's failure to timely file its appeal brief does not 
 
         constitute grounds for dismissal.  An untimely filed brief which 
 
         is objected to, however, will not receive consideration.  The 
 
         motion to extend the time to file a brief was made after the 
 
         brief was due and after the motion to dismiss was filed.  The 
 
         motion to extend was not timely and is denied.  The appeal will 
 
         be considered generally without any specified errors to determine 
 
         its compliance with the law.
 
         
 
         
 
              Signed and filed this 12th day of July, 1988.
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Gary Papenheim
 
         Attorney at Law
 
         Box P
 
         Parkersburg, Iowa  50665
 
         
 
         Mr. Timothy W. Hamann
 
         Mr. James E. Walsh, Jr.
 
         Mr. Bruce L. Gettman, Jr.
 
         Attorneys at Law
 
         P.O. Box 596
 
         River Plaza Building
 
         10 West Fourth Street
 
         Waterloo, Iowa 50704
 
         
 
         
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. SHIRLEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 811696
 
            SHIRLEY AG SERVICE,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Second Injury Fund appeals from an arbitration decision 
 
            awarding claimant healing period and permanent partial 
 
            disability benefits from claimant's employer and benefits 
 
            from the Second Injury Fund.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; claimant's exhibits 1 through 6; and 
 
            Second Injury Fund's exhibits 1D, 2D, 3D, 5D and 7.  Second 
 
            Injury Fund and claimant filed briefs on appeal.
 
            
 
                                      issue
 
            
 
                 The issue on appeal is whether claimant is entitled to 
 
            benefits from the Second Injury Fund.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed July 3, 1989 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.
 
            
 
                                     analysis
 
            
 
                 The issue to be resolved is whether claimant is 
 
            entitled to second injury fund benefits.  This issue 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            involves several matters.
 
            
 
                 The first matter to be discussed is Second Injury 
 
            Fund's assertion that claimant's claim is barred.  Claimant 
 
            argues in his appeal brief that Second Injury Fund has not 
 
            preserved the issue of statute of limitations as a bar to 
 
            claimant's claim against the Second Injury Fund.  Claimant's 
 
            argument has some merit.  The answer filed by the Second 
 
            Injury Fund did not raise the issue of statute of 
 
            limitations.  The hearing assignment order does not indicate 
 
            that statute of limitations was to be an issue.  The 
 
            prehearing report and order approving the same dated 
 
            November 22, 2988 was signed by all parties including the 
 
            Second Injury Fund.  Paragraph 7 of the prehearing report 
 
            indicated that untimely claim under Iowa Code section 85.26 
 
            was waived and the defense of entitlement to Second Injury 
 
            Fund was asserted.  The Second Injury Fund argues in both 
 
            its appeal brief and its post hearing brief that Iowa Code 
 
            section 85.26 is applicable.  If Iowa Code section 85.26 is 
 
            applicable as Second Injury Fund asserts, Second Injury Fund 
 
            waived its right to claim a defense under section 85.26 by 
 
            not raising the issue in its answer or at the time of the 
 
            prehearing and by agreeing to the prehearing report and 
 
            order.  The issue of whether section 85.26 bars claimant's 
 
            claim against the Second Injury Fund was not properly 
 
            preserved at the arbitration hearing and will not be 
 
            considered on appeal.
 
            
 
                 The second matter to be resolved is whether claimant's 
 
            "second" injury qualifies under Iowa Code section 85.64.  
 
            Second Injury Fund argues that the injury was to the 
 
            shoulder (or more precisely subluxation of the left 
 
            acromioclavicular joint) and therefore not a scheduled 
 
            member.  Under Second Injury Fund's theory it would not be 
 
            liable.  For the purpose of imposing Second Injury Fund 
 
            liability, an injury which affects a scheduled member is all 
 
            that is necessary.  See Thompson v. Marshall & Swift, Inc., 
 
            (Appeal Decision, August 28, 1988); and Cook v. Iowa Meat 
 
            Processing Company, (Appeal Decision, May 12, 1987).  
 
            Claimant's left arm is affected.  He testified that he 
 
            experiences continuing pain, discomfort and limitations 
 
            regarding his left arm.  He has been rated as having ten 
 
            percent "disability" of the left upper extremity (Claimant's 
 
            Exhibits 2 and 5).
 
            
 
                 The last general matter to be resolved is claimant's 
 
            cumulative industrial disability.  As a starting point for 
 
            this discussion it should be noted that the deputy 
 
            determined that claimant's industrial disability resulting 
 
            from the work injury on January 27, 1984 was 15 percent.  No 
 
            party takes issue with that determination and upon review 
 
            the deputy's determination is adopted as correct.
 
            
 
                 Claimant was born October 5, 1957 and was 26 years old 
 
            on the date of his work injury on January 27, 1984.  
 
            Claimant's primary disabling condition is the loss of his 
 
            right arm which was amputated above the elbow prior to the 
 
            1984 work injury.  He has a permanent impairment of the left 
 
            shoulder as a result of his work injury on January 27, 1984.  
 
            The deputy discussed other relevant factors and stated:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                   Normally, earnings are a somewhat reliable 
 
                 indicator of earning capacity, but claimant's 
 
                 earnings in his family-owned business cannot be 
 
                 considered to be particularly reliable since there 
 
                 may well have been accommodation made for his 
 
                 disabilities or higher than normal wages due to 
 
                 the family relationship.  Part-time work in a 
 
                 service station while attending college is 
 
                 likewise not a reliable indicator of earning 
 
                 capacity.  Claimant has serious physical 
 
                 impairments.  Fortunately, he appears to have good 
 
                 intellectual abilities, abilities which are much 
 
                 better than what his high school academic 
 
                 performance would indicate.  The assessment of 
 
                 claimant's employment capabilities as made by the 
 
                 TETRA evaluation service seems overly pessimistic.  
 
                 The undersigned does not understand how the report 
 
                 could have overlooked sales positions of the type 
 
                 claimant is apparently adequately performing as a 
 
                 possible vocational field.  The personality and 
 
                 communication skills which claimant exhibited at 
 
                 hearing were not inconsistent with sales work.  
 
                 Nevertheless, claimant had no college education at 
 
                 the time of his injury in 1984.
 
            
 
                 Claimant is a younger worker who hopefully can be 
 
            retrained.  He is motivated and his prospects for retraining 
 
            are good as evidenced by his success in attending college.  
 
            However, his prior work is effectively closed to him as 
 
            possible future employment.  When all relevant factors are 
 
            considered it is determined that claimant's cumulative loss 
 
            of earning capacity as a result of the loss of his right arm 
 
            and work injury to his left shoulder is eighty percent.
 
            
 
                 Second Injury Fund's liability in this case is 95 weeks 
 
            of compensation.  (500 weeks x 80%) - [(500 weeks x 15%) + 
 
            (230 weeks)].
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant was born October 5, 1957 and was 26 years 
 
            old on the date of a work injury on January 27, 1984.
 
            
 
                 2.  Claimant's right arm had been amputated above the 
 
            elbow prior to January 27, 1984.
 
            
 
                 3.  The compensable value of the loss of claimant's 
 
            right arm is 230 weeks.
 
            
 
                 4.  As a result of the work injury on January 27, 1984 
 
            claimant suffered a subluxation of the left 
 
            acromioclavicular joint.
 
            
 
                 5.  The work injury on January 27, 1984 resulted in a 
 
            permanent impairment of the body of the whole (shoulder) and 
 
            affected the left arm which had a ten percent impairment as 
 
            a result.
 
            
 
                 6.  The work injury of January 27, 1984 resulted in a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            15 percent loss of earning capacity.
 
            
 
                 7.  Claimant's work prior to the work injury of January 
 
            27, 1984 was primarily manual labor.
 
            
 
                 8.  Claimant is motivated and his prospects for 
 
            retraining are good.
 
            
 
                 9.  Claimant's cumulative loss of earning capacity as a 
 
            result of the loss of his right arm and work injury of 
 
            January 27, 1984 to his left shoulder is 80 percent.
 
            
 
                                conclusion of law
 
            
 
                 Claimant has proved entitlement to 95 weeks of 
 
            compensation for permanent partial disability benefits from 
 
            Second Injury Fund.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That Shirley Ag Service, Inc., and Employers Mutual pay 
 
            claimant healing period benefits at the rate of two hundred 
 
            fifty and 14/100 dollars ($250.14) per week, as stipulated 
 
            in the prehearing report, payable commencing January 27, 
 
            1984 and ending February 3, 1984.
 
            
 
                 That Shirley Ag Service, Inc., and Employers Mutual pay 
 
            claimant seventy-five (75) weeks of compensation for 
 
            permanent partial disability commencing at the end of the 
 
            healing period, namely February 4, 1984, at the stipulated 
 
            rate of two hundred fifty and 14/100 dollars ($250.14) per 
 
            week.
 
            
 
                 That the Second Injury Fund of Iowa pay claimant 
 
            ninety-five (95) weeks of compensation at the rate of two 
 
            hundred fifty and 14/100 dollars ($250.14) per week payable 
 
            commencing July 14, 1985 pursuant to Iowa Code section 
 
            85.64.
 
            
 
                 That all accrued benefits be paid in a lump sum.
 
            
 
                 That the employer and its insurance carrier pay 
 
            interest pursuant to the provisions of Code section 85.30.
 
            
 
                 That the costs of this appeal including the costs of 
 
            transcribing the arbitration hearing be assessed against the 
 
            Second Injury Fund pursuant to Division of Industrial 
 
            Services Rule 343-4.33.
 
            
 
                 That all other costs of this action are assessed 
 
            against the employer and its insurance carrier pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jon H. Johnson
 
            Attorney at Law
 
            P.O. Box 659
 
            Sidney, Iowa 51652
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            P.O. Box 249
 
            Council Bluffs, Iowa 51502
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803; 2402; 3203
 
            Filed March 21, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT L. SHIRLEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 811696
 
            SHIRLEY AG SERVICE,           :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant, who was 26 years old at the time of work injury, 
 
            had one arm amputated above the elbow and a 15 percent 
 
            industrial disability of the body from the work injury.  
 
            Motivation and prospects for retraining is good.  Claimant's 
 
            cumulative industrial disability was 80 percent.
 
            
 
            2402; 3203
 
            Statute of limitations was not raised by Second Injury Fund 
 
            in its answer, the hearing assignment order nor the 
 
            prehearing report.  The issue had not been preserved and was 
 
            not considered on appeal even though deputy had considered 
 
            it.
 
            
 
            3203
 
            Second Injury Fund held liable where second injury was to 
 
            the shoulder but produced impairment of use of the arm, even 
 
            though the employer's liability was based upon industrial 
 
            disability.  Second Injury Fund liable for 95 weeks of 
 
            benefits.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
          ROBERT L. SHIRLEY,
 
          
 
                Claimant,
 
          
 
          VS.
 
          
 
          SHIRLEY AG SERVICE,                   File No.  811696
 
          
 
                                              A R B I T R A T I 0 N
 
                Employer,
 
          
 
          and                                    D E C I S I 0 N
 
          
 
          EMPLOYERS MUTUAL,
 
          
 
                Insurance Carrier,
 
          
 
          and
 
          
 
          SECOND INJURY FUND OF IOWA,
 
          
 
                Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in arbitration brought by Robert L. 
 
         Shirley against Shirley Ag Service, his former employer, 
 
         Employers Mutual Insurance Company and the Second Injury Fund of 
 
         Iowa.  Claimant seeks compensation for permanent disability 
 
         resulting from an alleged trauma of January 27, 1984.
 
         
 
              The case was heard and fully submitted at Council Bluffs, 
 
         Iowa on November 22, 1988.  The record in the proceeding.consists 
 
         of testimony from Robert L. Shirley, claimant's exhibits 1 
 
         through 6, and Second Injury Fund exhibits 1D, 2D, 3D, 5D and 7. 
 
         The Second Injury Fund's Motion for Summary Judgment is 
 
         overruled.
 
         
 
                                      ISSUES
 
                                        
 
              The issues presented by the parties at the time of hearing 
 
         are whether claimant sustained an injury arising out of and in 
 
         the course of employment on January 27, 1984; whether the alleged 
 
         injury is a proximate cause of any permanent disability; whether 
 
         any permanent disability should be compensated as a scheduled 
 
         member disability of the arm or industrially, as.an injury to the 
 
         body as a whole; determination of claimant's entitlement to 
 
         compensation for permanent disability, if any, from the employer 
 
         and its insurance carrier; determination of whether claimant's 
 
         claim against the Second Injury Fund is barred by any applicable 
 
         statute of limitations; and, determination
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE
 
         Page 2
 
         
 
         
 
         of claimant's entitlement, if any, to recover weekly compensation 
 
         from the Second Injury Fund of Iowa..
 
         
 
                               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.
 
         
 
              Robert L. Shirley is a 31-year-old single man who presently 
 
         resides at Tucson, Arizona where he attends the University of 
 
         Arizona and carries a grade point average of slightly above a 
 
         2.0. Claimant testified at hearing that his major is undeclared 
 
         and that he is classified as a first semester junior, despite the 
 
         fact that this is his fourth year of college.
 
         
 
              Shirley has a medical history that is notable for a hip 
 
         problem during adolescence which required surgery and placement 
 
         of three metal pins in his left hip, torn cartilage in his right 
 
         knee in 1982, problems with his ankles since high school, back 
 
         problems of ten years' duration, a left thumb and left elbow 
 
         injury in 1978 and, most notably, an injury which severed most of 
 
         his right arm in 1975.  Claimant has sought medical treatment at 
 
         various times for all these afflictions.  Since the 1975 injury 
 
         to his right arm, he has been reluctant to undergo further 
 
         surgical procedures.
 
         
 
              Shirley testified that, on January 27, 1984, he was working 
 
         as a truck driver for the business owned by his family, Shirley 
 
         Ag Service, Inc.  Shirley testified that, while climbing into the 
 
         back of a trailer in order to clean it out, his shoulder popped 
 
         out of socket, and that he experienced excruciating pain, a pain 
 
         that increased whenever he moved his arm away from his body.  
 
         Shirley denied having any prior problems with his left shoulder, 
 
         but reported the incident to the person who handles insurance for 
 
         the employer.  Claimant testified that he initially did not think 
 
         that the condition was serious and that it would improve with the 
 
         passage of time.  He continued working and did not seek medical 
 
         treatment.  In August of 1984, Shirley quit work and enrolled at 
 
         Iowa State University.  He testified that for several years he 
 
         had considered returning to college since he realized that he 
 
         would not be able to support himself through manual labor.  
 
         Shirley stated that as the cold weather came, the condition of 
 
         his shoulder worsened so he sought treatment from.Richard Smith, 
 
         M.D., an orthopaedic surgeon in Omaha, Nebraska.  Dr. Smith's 
 
         records show that claimant first contacted him on October 19, 
 
         1984 (exhibit 1).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The condition in claimant's shoulder was diagnosed as a 
 
         partial  dislocation (subluxation) of the left acromioclavicular
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE 
 
         Page 3
 
         
 
         
 
         joint.  He has been rated as having a 10 percent permanent 
 
         impairment of his left upper extremity (exhibits 1, 2 and 5).  It 
 
         is noted that the physical abnormality lies at the 
 
         acromioclavicular joint, a part of the body which is not part of 
 
         the arm, although the disability resulting from that physical 
 
         derangement is manifested primarily in claimant's lack of ability 
 
         to make use of his remaining arm.
 
         
 
              Claimant testified that he experiences continuing pain, 
 
         discomfort and limitations regarding his left arm.
 
         
 
              At the time of hearing, claimant testified that he was 
 
         employed selling computers working approximately 30 hours per 
 
         week and earning approximately $1,500 per month, as well as 
 
         attending school.  Claimant had a thorough disability medical 
 
         evaluation which appears in exhibit 3. The conclusions reached 
 
         were:
 
         
 
              (1)  Right AE amputation with functional prosthesis.
 
              
 
              (2)  Left shoulder dislocation with continued discomfort 
 
              around the acromioclavicular joint.
 
              
 
              (3)  Left thumb injury with instability, crepitation, 
 
              weakness in the extensors and abductors.  Also degenerative 
 
              changes by report with crepitation.
 
              
 
              (4)  Left elbow injury, status post-surgery for removal of a 
 
              cartilage fragment.
 
              
 
              (5)  Bilateral ankle injuries with positive drawer sign and 
 
              degenerative joint disease by history, right side worse than 
 
              left.
 
              
 
              (6)  Slipped femoral epiphysis on the left, status 
 
              post-pinning with continued discomfort and decreased range 
 
              of motion in internal rotation.
 
              
 
              (7)  History of right hamstrings tear times two.
 
              
 
              Claimant was also evaluated in February, 1987, to assess his 
 
         ability to perform work-related tasks.  Extensive evaluation of 
 
         claimant's academic and manual abilities was conducted.  In 
 
         general, claimant was shown to have good academic and 
 
         intellectual aptitude.   He exhibited good reasoning skills.        
 
         Claimant did not perform well on the manual skills tests and the 
 
         discomfort from his various physical afflictions was manifested 
 
         during the six-hour testing process.  Despite the good academic 
 
         scores, the vocational services coordinator found little in the 
 
         way of potential job sources for claimant (exhibit 6).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE
 
         Page 4
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
                                        
 
              Claimant has the burden of proving by a preponderance, of 
 
         the evidence that he received an injury on January 27, 1984 which 
 
         arose out of and in the course of his employment.  McDowell 
 
         v.Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant's appearance and demeanor was observed as he 
 
         testified.  It was considered in connection with all the other 
 
         evidence in the case.  Claimant is apparently highly motivated 
 
         and has exhibited a tremendous amount of initiative toward making 
 
         the best of his current situation.  His actions indicate a high 
 
         degree of integrity.  Claimant is therefore determined to be a 
 
         credible witness on his own behalf.  The injurious event of 
 
         January 27, 1984 which he described is found to have occurred.  
 
         Claimant's explanation regarding continuing to work and not 
 
         seeking medical care until October 19, 1984 is likewise accepted 
 
         as being correct.  In general, claimant's testimony regarding his 
 
         symptoms, complaints, academic performance, income and all his 
 
         other testimony is accepted as being correct.
 
         
 
              It is therefore determined that Robert L. Shirley sustained 
 
         an injury which arose out of and in the course of his employment 
 
         as he alleged.
 
         
 
              It is noted in this case that claimant's petition against 
 
         the employer was filed January 17, 1986, a few days less than two 
 
         years following the date of the injurious trauma.  Claimant's 
 
         petition against the Second Injury Fund of Iowa was filed 
 
         September 18, 1986,, a date approximately a month less than two 
 
         years after the time that claimant initially consulted Dr. Smith 
 
         concerning his shoulder.  There is an area of uncertainty with 
 
         regard to which, if any, statute of limitations, applies to 
 
         claims against the Second Injury Fund.  It can reasonably be 
 
         asserted that the provisions of 85.26 apply.  It can also be 
 
         asserted that there is no limitation whatsoever.  It can be 
 
         asserted that the appropriate period of limitation, whatever that 
 
         may be, does not begin to run until such time as the Fund would 
 
         be liable to make payment to the claimant under the provisions of 
 
         Code section 85.64. It would be reasonably certain, however, that 
 
         the discovery rule would apply if the date of occurrence of 
 
         injury under section 85.26 is the appropriate statute, as 
 
         asserted by the Second Injury Fund.  The two-year limitation 
 
         begins to run only when the employee, in the exercise of 
 
         reasonable diligence, discovered or should have discovered (1) 
 
         the nature of the injury; (2) that it was serious, and (3) its 
 
         probable compensable character or that it is related to his 
 
         employment. Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 260 
 
         (Iowa 1980).  Claimant's testimony that he did not initially 
 
         consider the shoulder injury to be serious is corroborated by the 
 
         fact that he did not seek medical treatment.  It is determined 
 
         that it
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE 
 
         Page 5
 
         
 
         
 
         was not until he consulted with Dr. Smith on October 19, 1984 
 
         that he should be held to recognize his condition was serious.  
 
         Accordingly, for purposes of determining the running of any 
 
         statute of limitations against the Second Injury Fund, any such 
 
         limitation would run commencing October 19, 1984.  Since the 
 
         shortest of any arguably applicable periods of limitation is two 
 
         years, it is concluded that claimant's claim against the Second 
 
         Injury Fund of Iowa is timely.
 
         
 
              The issue exists with regard to whether the disability is to 
 
         be compensated as a scheduled disability or as a disability to 
 
         the body as a whole.  Clearly, the acromioclavicular joint is not 
 
         a part of the arm.  It is, however, the joint where the physical 
 
         derangement exists which is responsible for the loss of use of 
 
         claimant's arm.  The function of the acromioclavicular joint 
 
         itself is impaired permanently and that impairment is what limits 
 
         the use of claimant's arm, rather than any disability located 
 
         within the arm itself.  Accordingly, it is determined that the 
 
         disability should be compensated industrially under the 
 
         provisions of Code section 85.34(2)(u). Lauhoff Grain Co. v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction.of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of.the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings, create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE
 
         Page 6
 
         
 
         
 
         County, 34th Biennial Report, 218 (1979):  2 Larson Workmen's 
 
         Compensation Law, sections 57.21 and 57.31.
 
         
 
              Claimant's primary disabling condition is the loss of his 
 
         right arm.  Only those conditions and disabilities which existed 
 
         on January 27, 1984 are considered in determining this case since 
 
         subsequent injuries have no bearing.
 
         
 
              Normally, earnings are a somewhat reliable indicator of 
 
         earning capacity, but claimant's earnings in his family-owned 
 
         business cannot be considered to be particularly reliable since 
 
         there may well have been accommodation made for his disabilities 
 
         or higher than normal wages due to the family relationship.  
 
         Part-time work in a service station while attending college is 
 
         likewise not a reliable indicator of earning capacity.  Claimant 
 
         has serious physical impairments.  Fortunately, he appears to 
 
         have good intellectual abilities, abilities which are much better 
 
         than what his high school academic performance would indicate.     
 
         The assessment of claimant's employment capabilities, as made by 
 
         the TETRA evaluation service seems overly pessimistic.  The 
 
         undersigned does not understand how the report could have 
 
         overlooked sales positions of the type claimant is apparently 
 
         adequately performing as a possible vocational field.  The 
 
         personality and communication skills which claimant exhibited at 
 
         hearing were not inconsistent with sales work.  Nevertheless, 
 
         claimant had no college education at the time of his injury in 
 
         1984.  When that injury impaired his ability to use his remaining 
 
         left arm, it became imperative that claimant seek retraining in 
 
         order to be self-supporting.
 
         
 
              Industrial disability is to be determined as the person 
 
         exists following recuperation from the injury.  It considers 
 
         aptitudes and matters which are foreseeable, but does not 
 
         speculate as to particular jobs, academic achievement or other 
 
         specific matters which might occur in the future.  An employer or 
 
         insurance carrier who does not contribute to the cost of 
 
         obtaining higher education cannot deny benefits while the person 
 
         borrows money, works or otherwise finances an education in order 
 
         to recover or perhaps improve, what had been their original 
 
         earning capacity and then seek to avoid paying any disability 
 
         compensation since the efforts to restore earning capacity were 
 
         successful.  Stewart v. Crouse Cartage Co., file number 738644 
 
         (App. Decn. February 20, 1987).
 
         
 
              When all the appropriate factors of industrial disability 
 
         are considered, it is determined that claimant exhibited an 80 
 
         percent permanent partial disability when the same is evaluated 
 
         industrially at the time he recovered from the injury to his left 
 
         shoulder which is the basis for this claim.  This would entitle 
 
         him to receive 400 weeks of compensation for permanent partial 
 
         disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE 
 
         Page 7
 
         
 
         
 
              Since the injury is to the body as a whole, it is necessary 
 
         to determine the amount of industrial disability that was 
 
         proximately caused by the January 27, 1984 injury as if the 
 
         preexisting scheduled member disabilities did not exist.  If all 
 
         the appropriate factors of industrial disability, namely age, 
 
         experience, qualifications and physical limitations are 
 
         considered based solely upon the January 27, 1984 injury, it is 
 
         determined that the extent of industrial disability from such an 
 
         injury is 15 percent.  This would entitle claimant to 75 weeks of 
 
         compensation for permanent partial disability from the employer 
 
         and its insurance carrier.
 
         
 
              The total industrial disability has been assessed at 80 
 
         percent, an amount equivalent to 400 weeks.  Of that total, 75 
 
         weeks is the liability of the employer based upon the injury now 
 
         under consideration.  The preexisting disability resulting from 
 
         claimant's severed right arm is 230 weeks.  The liability of the 
 
         Second Injury Fund is therefore 95 weeks.  Second Injury Fund v. 
 
         Neelans, 436 N.W.2d 355 (Iowa 1989); Second Injury Fund v. Mich 
 
         Coal Co., 274 N.W.2d 300 (Iowa 1979
 
                                        
 
                                 FINDINGS OF FACT
 
                                        
 
              1. Robert L. Shirley is a fully  credible  witness on his 
 
         own behalf.
 
         
 
              2.Shirley suffered a partial dislocation of the left 
 
         acromioclavicular joint in this left shoulder in a trauma that 
 
         occurred on January 27, 1984.
 
         
 
              3. Shirley did not recognize the seriousness of his 
 
         condition until he consulted with Richard Smith, M.D., on October 
 
         19, 1984.
 
         
 
              4.The compensable value of the loss of claimant's right arm 
 
         is 230 weeks of compensation.
 
         
 
              5. The injury now under consideration, without consideration 
 
         of the preexisting disabilities, produced a 15 percent loss of 
 
         Shirley's earning capacity, the compensable value of which is 75 
 
         weeks.
 
         
 
              6. The partial dislocation injury that occurred on January 
 
         27, 1984 produced a permanent impairment of the acromioclavicular 
 
         joint, a structure of the body which is not part of the arm.
 
         
 
              7.The degree of permanent impairment is ten percent, of the 
 
         upper extremity, an amount equal to approximately five percent of 
 
         the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE
 
         Page 8
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained an injury to his left shoulder which 
 
         arose out of and in the course of his employment on January 27, 
 
         1984.
 
         
 
              3.  Claimant did not, in the exercise of reasonable 
 
         diligence, recognize the seriousness of the injury until October 
 
         19, 1984 which, for purposes of determining compliance with a 
 
         statute of limitations, constitutes the date of occurrence of 
 
         injury.
 
         
 
              4.  Claimant's injury and permanent disability should be 
 
         compensated industrially under the provisions of Iowa Code 
 
         section 85.34(2)(u) by the employer and its insurance carrier.
 
         
 
              5.  Claimant has a 15 percent permanent partial industrial 
 
         disability of the body as a whole that was proximately caused by 
 
         the January 27, 1984 trauma if all preexisting disabilities are 
 
         not considered.
 
         
 
              6.  Claimant's overall industrial disability is 80 percent 
 
         of the body as a whole when claimant's condition is considered as 
 
         it existed following maximum recuperation from the January 27, 
 
         1984 injury and the permanent disability that it produced.
 
         
 
              7.  The employer, Shirley Ag Service, Inc., and its 
 
         insurance carrier, Employers Mutual, are responsible to pay 
 
         claimant 75 weeks of compensation for permanent 
 
         partial.disability.
 
         
 
              8.  The Second Injury Fund of Iowa is,responsible for paying 
 
         claimant 95 weeks of compensation for permanent partial 
 
         disability.
 
         
 
                                      ORDER
 
                                        
 
              IT IS THEREFORE ORDERED that Shirley Ag Service, Inc., and 
 
         Employers Mutual pay claimant one and one-seventh (1 1/7) weeks 
 
         of compensation for healing period at the rate of two hundred 
 
         fifty and 14/100 dollars ($250.14) per week, as stipulated in the 
 
         prehearing report, payable commencing January 27, 1984.
 
         
 
              IT IS FURTHER ORDERED that Shirley Ag Service, Inc., and 
 
         Employers Mutual pay claimant seventy-five (75) weeks of 
 
         compensation for permanent partial disability commencing at the 
 
         end of the healing period, namely February 4, 1984, at the 
 
         stipulated rate of two hundred fifty and 14/100 dollars ($250.14) 
 
         per week.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE
 
         Page 9
 
         
 
         
 
              IT IS FURTHER ORDERED that the Second Injury Fund of Iowa 
 
         pay claimant ninety-five (95) weeks of compensation at the rate 
 
         of two hundred fifty and 14/100 dollars ($250.14) per, week 
 
         payable commencing July 14, 1985 pursuant to Iowa Code section 
 
         85.64.
 
         
 
              IT IS FURTHER ORDERED that the employer and its insurance 
 
         carrier pay interest pursuant to the provisions of Code section 
 
         85.30 on all amounts which were not paid at the time they came 
 
         due.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the employer and its insurance carrier pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that all defendants herein file claim 
 
         activity reports as requested by this agency pursuant to Division 
 
         of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 3rd day of July, 1989.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jon H. Johnson
 
         Attorney at Law
 
         P.O. Box 659
 
         Sidney, Iowa 51652
 
         
 
         Mr. W. Curtis Hewett
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         Ms. Joanne  Moeller
 
         Assistant  Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51402.20, 51402.40, 1803, 
 
                                            51803.1, 2402, 3203 
 
                                            Filed July 3, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT L. SHIRLEY,
 
               Claimant,
 
          VS.
 
          SHIRLEY AG SERVICE,               File No. 811696
 
               Employer,                    A R B I T R A T I 0 N
 
          and                                 D E C I S I 0 N
 
          EMPLOYERS MUTUAL,
 
               Insurance Carrier,
 
          and
 
          SECOND INJURY FUND OF IOWA,
 
               Defendants.
 
         
 
         51402.20, 51402.40
 
         
 
              Claimant had lost his right arm in a farm accident that 
 
         occurred when he was 17 years of age.  He subsequently made claim 
 
         for an injury to his left shoulder.  Claimant was found credible 
 
         and was awarded benefits.
 
         
 
         51803.1
 
         
 
              A partial dislocation of the acromioclavicular joint was 
 
         held to be a disability to the body as a whole, rather than a 
 
         scheduled member disability of the arm.
 
         
 
         2402
 
         
 
              No particular statute of.limitations was identified as being 
 
         applicable to claims made against the Second Injury Fund, but the 
 
         discovery rule was held to be applicable to such claims.
 
         
 
         
 
         
 
         SHIRLEY V. SHIRLEY AG SERVICE
 
         Page 2
 
         
 
         
 
         3203
 
         
 
              Second Injury Fund held liable where second injury was to 
 
         the shoulder but produced impairment of use of the arm, even 
 
         though the employer's liability was based upon industrial 
 
         disability.  The discovery rule was held applicable to whatever 
 
         statute of limitations applies to claims against the Fund, if 
 
         any, and it was noted that some question exists with regard to 
 
         whether or not any statute is applicable.
 
         
 
         1803
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Permanent partial disability is held to be determined based 
 
         upon the employee's condition as he exists immediately following 
 
         recuperation from the injury.  While aptitudes for academic 
 
         achievement are considered, defendants do not directly benefit 
 
         from academic pursuits successfully pursued by the injured worker 
 
         which successfully restore the earning capacity when the 
 
         defendants did not contribute to the cost of restoring the 
 
         earning capacity.