BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JIM ROLLING,
 
                                                  File No. 821808
 
              Claimant,
 
         vs.
 
                                              A R B I T R A T I O N
 
         IOWA POWER & LIGHT COMPANY,
 
         
 
              Employer,                          D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jim Rolling, 
 
         claimant, against self-insured employer Iowa Power & Light to 
 
         recover benefits as a result of a personal injury sustained on 
 
         April 21, 1986 which arose out of and in the course of his 
 
         employment.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner September 14, 1988.  
 
         The record was considered fully submitted at the close of the 
 
         hearing.  The record in this matter consists of the testimony of 
 
         claimant; and joint exhibits 1 through 6, inclusive, with the 
 
         exception of exhibit 2A which was excluded for reasons evident in 
 
         the record.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved September 14, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits; and,
 
         
 
              2.  Claimant's appropriate rate of compensation.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury on April 21, 1986 which arose 
 
         out of and in the course of his employment when, while climbing 
 
         down from the cab of a stacker/reclaimer, he tripped over a 
 
         shovel and landed on his right knee and "kind of on" his right 
 
         hip.  Claimant explained he knew he had cut his knee but did not 
 
         believe he had injured himself to any extent until the following 
 
         day when he was stiff and sore.  Claimant stated he went to see 
 
         his family doctor and could not find any reflex on the left side 
 
         and prescribed medicine and rest.  Claimant testified he was told 
 
         he could return to work if he felt like it and claimant did 
 
         return on April 23, 1986 only to experience an increase in his 
 
         symptoms.  Claimant therefore left work and reported the 
 
         following day to the company doctor (Edwards) who also prescribed 
 
         medication and rest.  However, claimant stated he could hardly 
 
         get out of bed that evening and was told to report to the 
 
         emergency room where Behrouz Rassekh, M.D., neurological surgeon, 
 
         was called in for consultation.  Claimant underwent a lumbar 
 
         myelogram on April 25, 1986 which demonstrated a "large herniated 
 
         disc at L5, L6 on the left."  The following day claimant 
 
         underwent a hemilaminectomy of L5, L6 and removal of an extruded 
 
         disc.  Claimant stated he "healed" from the operation and 
 

 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE 2
 
         
 
         
 
         
 
         returned to work on July 9, 1986 first on restricted duty and 
 
         then for full duty on July, 1986.
 
         
 
              Claimant testified he began working for defendant November 
 
         5, 1985 as a coal handler.  Claimant's starting wage was $7.029 
 
         per hour and he was on probation for the first six months of work 
 
         which was a period he described as an apprenticeship.  
 
         Defendant's policy is such that an employee receives training in 
 
         all facets of the job for the first six months of employment 
 
         during which time both the company and the employee evaluate each 
 
         other.  During the following six months, provided the employee 
 
         passes the probationary period, a coal handler earns one-half the 
 
         difference between a starting coal handler on probation and a 
 
         full coal handier which, in claimant's case, would have amounted 
 
         to $10.349 per hour.  After the first full year of employment, an 
 
         employee is entitled to the full salary of a coal handler which 
 
         amounted to $13.668 per hour in November 1986.  Although claimant 
 
         was injured during his first six months of employment, he 
 
         returned to work at the three-quarter wage in July 1986 and 
 
         received the full wage in November 1986 after one year of 
 
         service.  Claimant is still employed with defendant but now does 
 
         the job of a working foreman coal handler which allows him to 
 
         direct the other coal handlers in following the schedule and 
 
         concomitantly allows him to arrange the schedule "to fit within" 
 
         his disability.  Claimant currently earns $15.29 per hour.
 
         
 
              Claimant stated he is able to perform all facets of his job 
 
         although he "watches very carefully" to avoid reinjury and 
 
         acknowledges he can do any shoveling necessary as long as he 
 
         paces himself.  Claimant stated that if he sits for more than a 
 
         "couple hours" he becomes uncomfortable but admitted his job 
 
         allows him to regularly move around.  Claimant described some leg 
 
         cramping in the form of a "charley horse" which he experiences at 
 
         night on occasion but which is relieved with walking.  Claimant 
 
         has worked most of the overtime hours offered him since his 
 
         return to work in July 1986 and has not lost any more time at 
 
         work due to any complications from his injury.  Claimant stated 
 
         he was very satisfied with his job, that he has no intentions of 
 
         leaving it, that he is aware of no dissatisfaction defendant may 
 
         have with his employment and that defendant would have to have a 
 
         "pretty good" reason to discharge him from the job.
 
         
 
              The medical records of Behrouz Rassekh, M.D., reflect 
 
         claimant was seen by him in consultation on April 25, 1986 and 
 
         that it was Dr. Rassekh who performed the hemilaminectomy of L5, 
 
         L6 and removal of the extruded disc.  Dr. Rassekh noted claimant 
 
         did quite well postoperatively and was discharged from the 
 
         hospital on May 1, 1986 to be followed by Dr. Edwards.  On June 
 
         9, 1986, Dr. Rassekh noted claimant was gradually improving and 
 
         anticipated claimant may be released to return to work at the end 
 
         of the month.  Claimant was released to return to work on July 9, 
 
         1986 with the restriction of no scooping and, after follow-up of 
 
         claimant on July 31, 1986, claimant was released to return to his 
 
         normal occupation with no restrictions.  On October 8, 1986, Dr. 
 
         Rassekh opined "I do believe this patient would have a partial 
 
         permanent disability rating of 10% as a whole body." (Joint 
 
         Exhibit 6)
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Iowa Code subsection 85.34(2)(u) provides:
 
         
 
                 In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
     
 
         
 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   3
 
         
 
         
 
              paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
                 If it is determined that an injury has produced a 
 
              disability less than that specifically described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219  Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Iowa Code section 85.36 provides in part:
 
         
 
                 The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of the 
 
              injury ....
 
         
 
                 6.  In the case of an employee who is paid on a 
 
              daily, or hourly basis, or by the output of the 
 
              employee, the weekly earnings shall be computed by 
 
              dividing by thirteen the earnings, not including 
 
              overtime or premium pay, of said employee earned in the 
 
              employ of the employer in the last completed period of 
 
              thirteen consecutive calendar weeks immediately 
 
              preceding the injury.
 
         
 
                 ....
 
         
 
                 10.  If an employee earns either no wages or less 
 
              than the usual weekly earnings of the regular full-time 
 
              adult laborer in the line of industry in which the 
 
              employee is injured in that locality, the weekly 
 
              earnings shall be one-fiftieth of the total earnings 
 
              which the employee has earned from all employment 
 
              during the twelve calendar months immediately preceding 
 
              the injury.
 
         
 
                 ....
 
         
 
              b.  If the employee was an apprentice or trainee when 
 
              injured, and it is established under normal conditions 
 
              the employee's earnings should be expected to increase 
 
              during the period of disability, that fact may be 
 
              considered in computing the employee's weekly 
 
              earnings.
 
         
 
                                   ANALYSIS
 
         
 
              There is no dispute that claimant sustained an injury which 
 
         arose out of and in the course of his employment or that the 
 
         injury is the cause of a temporary and permanent disability.  Dr. 
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   4
 
         
 
         
 
         Rassekh is the only physician in the case to have rendered an 
 
         opinion that claimant has sustained a permanent partial 
 
         "disability."  While it is within the domain of the expert 
 
         witness to determine "impairment" rather than disability, the 
 
         fact that Dr. Rassekh did not indicate impairment will not be 
 
         given great weight in light of the parties' stipulation.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference.is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant is currently 35 years old and has a high school 
 
         education.  He has previous work experience in farm labor, at a 
 
         gate factory, at a seed corn company, and at a meat packing 
 
         company, all jobs he acknowledged he is still able to do, at 
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   5
 
         
 
         
 
         least to some, if not all, extent.  Claimant is currently 
 
         employed as a coal handler foreman at a rate of pay greater than 
 
         that which he was earning at the time of his injury.  Claimant 
 
         has no work restrictions and no apparent difficulty with any 
 
         aspect of his work.  Defendant employer has worked with claimant 
 
         to accommodate any problems he might have.  As the industrial 
 
         commissioner recently stated in Gallardo v. Firestone Tire 
 
         Company (Appeal Decision filed October 21, 1987) an employer's 
 
         repeated efforts to retain claimant as an employee after his 
 
         injury and to accommodate any medical restrictions resulting 
 
         therefrom reduces the amount of claimant's industrial disability.  
 
         In addition, claimant, as foreman, candidly acknowledges he can 
 
         adjust the work schedule to accommodate his "disability."  
 
         Claimant attempts to stress the fact that his employment with 
 
         defendant appears to be at will and that he is subject to 
 
         discharge and has no job security.  It is, however, claimant's 
 
         present status that must be evaluated.  See Umphress v. Armstrong 
 
         Rubber Company (Appeal Decision filed August 27, 1987). (It 
 
         appears ... that the deputy based his decision in part on what 
 
         may occur to claimant in the future as opposed to his present 
 
         condition.  This is mere speculation.") At present, claimant is 
 
         clearly satisfied with his employment and intends to remain in 
 
         this employment throughout the rest of his working life.  
 
         Claimant acknowledges that defendant has expressed no 
 
         dissatisfaction with his job performance and has conveyed no 
 
         intention to terminate the employment relationship.  In essence, 
 
         claimant has failed to present any credible evidence that his 
 
         employment is currently in any jeopardy.  However, the fact that 
 
         claimant may not ever have to seek employment from other 
 
         employers does not negate the effect of the injury on claimant's 
 
         earning capacity.  Harrison v. Bussing Automotive, Inc. (Appeal 
 
         Decision filed August 27, 1987).
 
         
 
              Although claimant has not demonstrated any actual loss of 
 
         earnings as a result of his injury, it is not an individual's 
 
         earnings which are necessarily of major importance in the 
 
         evaluation of industrial disability.  Rather, the loss or 
 
         reduction of an individual's earning capacity must be reviewed. 
 
         industrial disability can be the same as, less than or greater 
 
         than functional impairment.  Birmingham v. Firestone Tire & 
 
         Rubber Company, II Iowa Industrial Commissioner Report 39 (Appeal 
 
         Decision 1981).  Considering then all the elements of industrial 
 
         disability, it is found that claimant has sustained a permanent 
 
         partial disability of 10 percent for industrial purposes 
 
         entitling him to 50 weeks of permanent partial disability 
 
         benefits.
 
         
 
              The final issue to be address is that of rate.  Claimant 
 
         asserts his rate for temporary total disability benefits should 
 
         be $274.51 per week and that his rate for permanent partial 
 
         disability benefits should be $347.63 per week.  Defendant argues 
 
         that claimant is entitled to a rate of $195.42 per week although 
 
         claimant has been paid at a rate of $186.96 per week.
 
         
 
              As indicated above, the basis for computation in the case of 
 
         an employee who is paid on an hourly basis is found at Iowa Code 
 
         section 85.36(6).  In the 13 weeks immediately preceding his 
 
         injury, claimant worked a total of 548 hours or an average of 
 
         42.15 per week.  At the straight time rate of $7.029 per hour, 
 
         claimant would have an average gross weekly wage of $296.27 
 
         producing a weekly workers' compensation rate of $195.42 for a 
 
         married individual with four exemptions.  Claimant argues, 
 
         however, that he was an "apprentice" or "trainee" when insured 
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   6
 
         
 
         
 
         and that his earning were expected to increase during the period 
 
         of his disability.  He requests, therefore, that pursuant to Iowa 
 
         Code section 85.36(10)(b) the deputy consider that fact in 
 
         computing the weekly earnings.
 
         
 
              The undersigned cannot find that Iowa Code section 
 
         85.36(10)(b) to be applicable.  Since claimant was paid on an 
 
         hourly basis, his rate can be computed pursuant to Iowa Code 
 
         section 85.36(6) and it is not necessary to look any further in 
 
         the statute.  For section 85.36(10)(b) to be applicable 85.36(10) 
 
         must be applicable and the undersigned concludes that it is not.  
 
         However, even if it were, claimant still would not be entitled to 
 
         the benefit of Iowa Code section 85.36(10)(b).
 
         
 
              There is no question that claimant, who was employed on 
 
         November 5, 1985 was to earn one wage for six months, another 
 
         wage for the next months until at one year he would be 
 
         compensated as a full coal handler.  Joint exhibit 1 reflects a 
 
         starting wage of $7.029 per hour, a six month wage of $10.349 per 
 
         hour and a one year wage of $13.668 per hour.  Claimant was 
 
         earning $7.029 per hour at the time he was injured and when he 
 
         returned to work he was paid the six month wage.  In November 
 
         1986, after being employed for one year although not working for 
 
         one year because of the almost 11 weeks he was gone as a result 
 
         of his injury, claimant received $13.668 per hour.  Consequently, 
 
         since claimant was off work from April 24 through July 8, 1986 
 
         his wage was clearly expected to increase during this period of 
 
         time.  Notwithstanding the above, the statute does not compel the 
 
         deputy to include the fact of increased wages during disability 
 
         in the calculation of rate as the statute specifically states 
 
         that that fact "may" be considered.  However, even before this 
 
         issue was reached, the question of whether or not claimant was an 
 
         apprentice or trainee must first be answered.
 
         
 
              The workers' compensation laws in Iowa do not define the 
 
         terms apprentice or trainee and therefore no direction is given 
 
         therein.  However, the Iowa Supreme Court addressed the issue of 
 
         apprenticeship in Henderson v. Jennie Edmondson Hospital, 178 
 
         N.W.2d 429 (1970) and stated at 433:
 
         
 
                 Black's Law Dictionary, Revised Fourth Edition, 
 
              defines apprentice as:  "A person, usually a minor, 
 
              bound in due form of law to a master, to learn from him 
 
              his art, trade, or business, and to serve him during 
 
              the time of his apprenticeship."  For like definitions 
 
              see 3A Words and Phrases p. 441 and 6 C.J.S. 
 
              apprentices SS 1.
 
         
 
                 Webster's Third New International Dictionary defines 
 
              apprentice as:  "la:  one who is bound by indentures or 
 
              by legal agreement to serve another person for a 
 
              certain time with a view to learning an art or trade in 
 
              consideration of instruction therein and formerly usu. 
 
              of maintenance by the master b:  one who is learning by 
 
              practical experience under skilled workers a trade, art 
 
              or calling usu. for a prescribed period time and at a 
 
              prescribed rate of pay [bricklayer] [actor's] 
 
              [teacher]"  The first definition reflects the medieval 
 
              concept.  The second expresses the modern meaning of 
 
              the word.
 
         
 
                 In Gianotti, People on Information of v. Bloom, 7 
 
              Misc.2d 1077, 167 N.Y.S.2d 179, 182 (1957), after 
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   7
 
         
 
         
 
              quoting the older definition of apprentice, the court 
 
              says:  "In ancient times, an apprentice received no 
 
              remuneration or very little outside of his board and 
 
              lodging.  He usually lived with the master and was part 
 
              of his household.
 
         
 
                 "In modern times, the apprentice works for the 
 
              master for wages, usually less than that received by 
 
              the journeyman who has finished his training as an 
 
              apprentice.  The apprentice is no less dependent upon 
 
              his wages than is the journeyman."
 
         
 
              Using this direction, the undersigned concludes claimant was 
 
         not an apprentice as contemplated by the statute.  Claimant's 
 
         first six months of employment was no different from any other 
 
         worker's first period of employment.  Rare is the case that a 
 
         person comes on a job without some period of learning.  Rare is 
 
         the case that a worker does not receive some sort of salary 
 
         increase after the period of probation.  Claimant's first six 
 
         months was a probationary period where employer and employee 
 
         could evaluate each other.  Merely because it was during this 
 
         period time that claimant learned his job does not make him a 
 
         trainee or apprentice.  Further, if in fact claimant was an 
 
         apprentice, when he returned to work in July 1986 why did he not 
 
         have to complete all of the training that was afforded other 
 
         employees during the first six months.  The undersigned believes 
 
         that if claimant were a true apprentice or trainee as 
 
         contemplated by the statute that claimant would have had to 
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   8
 
         
 
         
 
         complete all facets of the program before he could have received 
 
         his salary increase.  Yet, when claimant returned to work on July 
 
         9, notwithstanding he had left before the expiration of his six 
 
         month period, the employer treated him as though he had never 
 
         been gone.  Claimant was not working toward any licensure nor 
 
         toward acquiring a skill marketable to the general public as 
 
         would an electrician, a plumber or a carpenter.  Claimant 
 
         characterizes his first six months as an apprenticeship period.  
 
         Defendant characterizes the same period as a probationary period.  
 
         Defendant will prevail on this point.  Therefore, claimant is not 
 
         entitled to utilize Iowa Code section 85.36(10)(b) and his rate 
 
         is appropriately calculated under section 85.36(6) to be $195.42 
 
         per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on April 21, 1986.
 
         
 
              2.  As a result of his injury claimant underwent a 
 
         hemilaminectomy of L5, L6 and removal of an extruded disc on 
 
         April 26, 1986.
 
         
 
              3.  Claimant did well postoperatively and was released to 
 
         return to work with restrictions on July 9, 1986.
 
         
 
              4.  Claimant returned to work on that date and defendant 
 
         accommodated his working restrictions.
 
         
 
              5.  Claimant was released to return to work without 
 
         restrictions July 31, 1986.
 
         
 
              6.  Claimant has been working since July 31, 1986 without 
 
         restrictions and has been able to perform all facets of his job.
 
         
 
              7.  Claimant is currently employed as a working coal handler 
 
         foreman which allows him to direct the other coal handlers in 
 
         following the schedule and also allows him to arrange the 
 
         schedule giving consideration to his back.
 
         
 
              8.  Claimant is satisfied with his job, has no intention of 
 
         leaving it and defendant has expressed no dissatisfaction with 
 
         claimant's job performance.
 
         
 
              9.  As of the time of the hearing claimant had secure 
 
         employment.
 
         
 
             10.  At the time of his injury, claimant was earning $7.029 
 
         per hour and working an average of 42.15 hours per week for a 
 
         gross weekly wage of $296.27.
 
         
 
             11.  At the time of his injury, claimant was married with 
 
         four exemptions.
 
         
 
             12.  Claimant was not a trainee or apprentice.
 
         
 
             13.  Claimant's appropriate weekly workers' compensation rate 
 
         is $195.12.
 
         
 
             14.  Claimant is currently earning $15.29 per hour.
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE   9
 
         
 
         
 
         
 
             15.  Claimant is 35 years old with a high school education 
 
         who has earned his living as a laborer.
 
         
 
             16.  Claimant has no permanent work restrictions and although 
 
         he is careful he is also capable of performing his current and 
 
         past occupations.
 
         
 
             17.  Claimant's injury has resulted in a permanent impairment 
 
         and has hampered his capacity to earn.
 
         
 
             18.  Claimant has sustained a permanent partial disability of 
 
         10 percent for industrial purposes.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established that as a result of the injury 
 
         of April 21, 1986 which arose out of and in the course of his 
 
         employment he has a 10 percent permanent disability for 
 
         industrial purposes.
 
         
 
              2.  The appropriate weekly workers' compensation rate is 
 
         $195.42.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant shall pay unto claimant ten point eight five seven 
 
         (10.857) weeks of healing period benefits at the appropriate rate 
 
         of one hundred ninety-five and 42/100 dollars ($195.42) for the 
 
         period from April 24, 1986 to July 8, 1986, inclusive.
 
         
 
              Defendant shall pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the appropriate rate of 
 
         one hundred ninety-five and 42/100 dollars ($195.42) per week 
 
         commencing July 9, 1986.
 
         
 
              Defendant shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DEBORAH A. DUBIK
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         ROLLING V. IOWA POWER & LIGHT COMPANY
 
         PAGE  10
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Jon H. Johnson
 
         Attorney at law
 
         P O. Box 659
 
         Sidney, IA 51652
 
         
 
         Mr. Ceca L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg
 
         Des Moines, IA 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803; 3000
 
                                              Filed September 28, 1988
 
                                              Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JIM ROLLING,
 
         
 
              Claimant,                         File No. 821808
 
         
 
         vs.
 
                                             A R B I T R A T I O N
 
         IOWA POWER & LIGHT COMPANY,
 
         
 
              Employer,                        D E C I S I O N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant, who sustained an injury to his back, underwent a 
 
         hemilaminectomy.  Claimant eventually returned to work without 
 
         any restrictions and has been able to perform all facets of his 
 
         job.  Claimant sustained no loss of actual earnings as a result 
 
         of his injury but did sustain a loss of earning capacity.  
 
         Claimant found to have a 10% permanent partial disability for 
 
         industrial purposes.
 
         
 
         3000
 
         
 
              Claimant, who was injured during his first six months of 
 
         employment was not found to be an apprentice or trainee as 
 
         contemplated by Iowa Code section 85.36(10)(b). Therefore, the 
 
         fact that claimant may have had an increase in earnings during 
 
         his period of disability was not considered in calculating 
 
         claimant's appropriate rate.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                
 
         
 
         PAUL ELLINWOOD,
 
         
 
              Claimant                             File No. 822326
 
         
 
         vs.                                         A P P E A L
 
         
 
         MID SEVEN TRANSPORTATION,                 D E C I S I O N
 
         
 
              Employer,
 
                                                      F I L E D
 
         and
 
                                                     DEC 29 1989
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals and defendants cross-appeal from an 
 
         arbitration decision determining claimant was an employee and 
 
         claimant's rate of compensation.
 
         
 
              The record on appeal consists of a stipulated record 
 
         consisting of joint exhibits 1 through 10 and stipulations as 
 
         part of the prehearing report.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
                                        
 
              The issues on appeal are whether claimant was an employee of 
 
         Mid Seven Transportation on April 30, 1986 and the rate of 
 
         compensation for benefits.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed June 27, 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 first issue to be resolved is whether claimant was an 
 
         employee for purposes of workers' compensation.  David Haning, 
 
         operation's manager for the Mid Seven Transportation testified to 
 
         the following.  Owner-operators were given $100 a month over and 
 
         above the percentage payment of the revenue as long as they 
 
         stayed employed.  The company purchased general liability 
 
         insurance on "the rigs" for the company.  The company purchased 
 
         workers' compensation coverage for claimant.  Claimant operated 
 
         his own "rig".
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant filed an application for employment with Mid Seven 
 
         Transportation and applied for a position of owner-operator.  Mid 
 
         Seven Transportation Company (which was designated the carrier) 
 
         and claimant entered into a "lease agreement."  Under the terms 
 
         of the "lease agreement" the carrier had the exclusive 
 
         possession, control and use of the leased equipment.  The lease 
 
         agreement appears to form document which is used in the trucking 
 
         industry.
 
         
 
              In Iowa, owner-operators who enter into the standard "lease 
 
         agreement" have generally been considered to be employees.  There 
 
         is no indication that claimant's situation is materially 
 
         different from the situation of the owner-operators who have been 
 
         considered employees.  It should be noted that claimant's 
 
         accident occurred on April 30, 1986 and the applicable law is 
 
         Iowa Code section 85.61 (1985).  The law which amended the 
 
         definition of "employee" to exclude certain owner-operators [1986 
 
         Iowa Acts, chapter 1074, now Iowa Code subsection 85.61(3)(c)] 
 
         did not become effective until July 1, 1986.  When all relevant 
 
         factors are considered, it is found that claimant was an employee 
 
         of Mid Seven Transportation.
 
         
 
              The second issue to be resolved is the rate of compensation. 
 
         The parties disagree whether expenses of operating claimant's 
 
         truck are to be deducted from claimant's gross revenues received 
 
         by the owner-operator as his share for hauling commodities.  In 
 
         this regard the case of Tuttle v. The Mickow Corp. (Remand 
 
         Decision December 20, 1988) correctly discusses the method of 
 
         determining the rate of compensation for owner-operators.  That 
 
         method includes deducting the expenses of operating claimant's 
 
         truck.  The expenses of operating the truck are deducted in 
 
         determining the rate of compensation.  The parties have 
 
         stipulated that the rate of compensation is $272.31 if these 
 
         expenses are deducted.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Mid Seven Transportation exercised substantial control 
 
         over the timing and manner in which claimant provided services to 
 
         it.
 
         
 
              2.  Claimant, by the provisions of the lease agreement, was 
 
         required to perform services exclusively for Mid Seven 
 
         Transportation, to the exclusion of performing work for other 
 
         carriers.
 
         
 
              3.  The expenses of operating claimant's truck are deducted 
 
         from claimant's gross compensation to determine claimant's rate 
 
         of compensation.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              Claimant has proved that he was an employee of Mid Seven 
 
         Transportation for purposes of workers' compensation on April 30, 
 
         1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has proved that his rate of compensation for weekly 
 
         workers' compensation benefits is $272.31.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant weekly compensation at the rate 
 
         of two hundred seventy-two and 31/100 dollars ($272.31) per week 
 
         for the stipulated healing period and permanent partial 
 
         disability entitlements.
 
         
 
              That the costs of the appeal including transcription of the 
 
         arbitration hearing are to be shared equally by claimant and 
 
         defendants.
 
         
 
              That all other costs of this action are assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
                                            
 
         Copies to:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, IA  50265
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, IA  50309
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       52001; 52002; 53003
 
                                       Filed December 29, 1989
 
                                       DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL ELLINWOOD,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File No. 822326
 
         MID SEVEN TRANSPORTATION,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         52001 - 52002
 
         
 
              It was held that an owner-operator trucker was an employee 
 
         despite a lease agreement that characterized him as an 
 
         independent contractor.
 
         
 
         
 
         53003
 
         
 
              The owner-operator's expenses of operating his truck are 
 
         deducted from his gross revenue in determining the rate of 
 
         compensation.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL ELLINWOOD,
 
         
 
              Claimant,                         File No. 822326
 
         
 
         vs.                                 A R B I T R A T I O N
 
         
 
         MID SEVEN TRANSPORTATION,              D E C I S I O N
 
         
 
              Employer,
 
                                                   F I L E D
 
         and
 
                                                  JUN 27 1989
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                              INDUSTRIAL SERVICES
 
              Insurance  Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Paul 
 
         Ellinwood against Mid Seven Transportation, the alleged employer, 
 
         and Liberty Mutual Insurance Company, its insurance carrier.  The 
 
         case was submitted on November 8, 1988 upon a stipulated record 
 
         consisting of exhibits and stipulations made as part of the 
 
         prehearing report.
 
         
 
                                      ISSUES
 
         
 
              The first issue presented by the parties for determination 
 
         is whether an employer-employee relationship existed between Paul 
 
         Ellinwood and Mid Seven Transportation at the time claimant was 
 
         injured on April 30, 1986 while performing services for Mid Seven 
 
         Transportation.  The.second issue is determination of claimant's 
 
         rate of compensation.
 
         
 
              The parties stipulated and agreed that, if claimant is not 
 
         an employee, and is in fact an independent contractor, as 
 
         asserted by the employer, claimant is nevertheless entitled to 
 
         benefits under the insurance contract which was issued at the 
 
         rate of $272.31 per week.  The parties further stipulated that, 
 
         in the event that claimant is determined to be an employee, his 
 
         rate of compensation is $272.31 per week if claimant's expenses 
 
         of operating his truck are deducted and considered in determining 
 
         the rate of compensation.  If claimant's expenses are not to be 
 
         considered, it was stipulated that the rate is $598.00 per week 
 
         for temporary total disability or healing period and $550.00 per 
 
         week for permanent partial disability compensation.
 
         
 
                               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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Many of the pertinent facts are contained in the written 
 
         stipulation entered into and filed by the parties as part of the 
 
         prehearing report.  Those facts are incorporated herein by this 
 
         reference.  Claimant was designated as an independent contractor 
 
         in a written lease agreement between himself and Mid Seven 
 
         (exhibit 1).  The written agreement made claimant responsible for 
 
         providing a truck and driver for Mid Seven and provided that the 
 
         claimant was the employer of any subordinates which claimant 
 
         employed to assist him.  The agreement further provided that the 
 
         employees and equipment which claimant provided to Mid Seven must 
 
         meet applicable federal regulations and safety standards imposed 
 
         by Mid Seven.  The contract provided a method of computing 
 
         compensation to be paid by Mid Seven to Ellinwood based upon 
 
         whether Ellinwood furnished only a tractor, a tractor with 
 
         trailer, or with other variables.  In general, it was based upon 
 
         the revenues generated by the freight Ellinwood hauled.  The 
 
         agreement provided that Mid Seven would advance payment of items 
 
         such as licenses, collision insurance and health insurance, 
 
         should Ellinwood so desire.
 
         
 
              In exhibit 2, David Haning, the operations manager for Mid 
 
         Seven, testified that company drivers who drive a vehicle owned 
 
         by Mid Seven are paid 23 or 24 percent of the revenue generated 
 
         by the load that they haul (exhibit 2, page 5).
 
         
 
              Eugene L. Wulf, a claims manager with Liberty Mutual 
 
         Insurance Company, testified by way of deposition, that Paul 
 
         Ellinwood was covered as an owner-operator under a workers' 
 
         compensation insurance policy issued to Mid Seven Transportation. 
 
         Wulf testified that, under the contract and under the policy 
 
         followed by Liberty Mutual Insurance Company, one-third of the 
 
         gross receipts payable to an owner-operator was considered to be 
 
         salary (exhibit 3, pages 13-15).
 
         
 
              Paul Ellinwood consistently filed his income tax returns 
 
         using schedule C which indicates that he operated a sole 
 
         proprietorship trucking business (exhibits 7, 8 and 9).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              It is determined that claimant's rate of compensation is 
 
         $272.31 per week.  On December 20, 1988, the industrial 
 
         commissioner in the case Cora M. Tuttle v. The Mickow Corp., file 
 
         number 672377 (App. Decn. December 20, 1988), determined that the 
 
         rate of compensation for an owner-operator trucker was to be 
 
         based upon one-third of the revenue which the truck produced.  
 
         The case McCarty v. Freymiller Trucking, Inc., file numbers 
 
         729340 and 729341 (App. Decn. February 25, 1986) and also the 
 
         case Sperry v. D & C Express, Inc., file number 785108 (App. 
 
         Decn. December 10, 1987) are effectively overruled by Tuttle.  It 
 
         is clear that the expenses of operating a truck are to be 
 
         deducted from gross revenues received by the owner-operator when 
 
         the rate of compensation is to be determined.  While there may be 
 
         bona fide dispute or argument as to precisely which expenses 
 
         should be deducted (i.e., depreciation, interest, etc.), that 
 
         issue is not present in this case in view of the stipulation 
 
         entered into by the parties.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The remaining issue of employer-employee status may be moot, 
 
         but will nevertheless be addressed since it may control issues 
 
         concerning future medical care, review-reopening or other issues 
 
         which require a determination of the employer-employee 
 
         relationship.
 
         
 
              Independent contractors are specifically excluded from 
 
         worker's compensation coverage, but no contract or other device 
 
         may relieve an employer from the liability created by Chapter 85 
 
         of The Code.  Code section 85.18.  The issue involves 
 
         consideration of several factors.  Caterpillar Tractor Co. v. 
 
         Shook, 313 N.W.2d 503, 505 (Iowa 1982); McClure v. Union, et al. 
 
         Counties, 188 N.W.2d 283 (Iowa 1971); Nelson v. City Service Oil 
 
         Co., 259 Iowa 1209, 146 N.W.2d 261 (1966); Mallinger v. Webster 
 
         City Oil Co., 211 Iowa 847, 234 N.W. 254 (1925).  The intent of 
 
         the parties is an important factor.  Henderson v. Jennie 
 
         Edmondson Hospital, 178 N.W.2d 429 (Iowa 1970).  The duty to 
 
         provide services exclusively for one party is an important 
 
         factor.  Crane v. Meier, 332 N.W.2d 344 (Iowa App. 1982).  
 
         Ellinwood was not free to haul for others (exhibit 1, page 3).  
 
         In Iowa, owner-operators have generally been considered to be 
 
         employees.  Daggett v. Nebraska-Eastern Express, Inc., 252 Iowa 
 
         341, 344, 107 N.W.2d 102, 105 (1961); Yergey v. Montgomery Ward & 
 
         Co., 30 N.W.2d 153 (Iowa 1947); Towers v. Watson Brothers Co., 
 
         229 Iowa 387, 294 N.W. 594 (1940).  When all the appropriate 
 
         factors are weighed, it is determined that Paul Ellinwood was an 
 
         employee of Mid Seven Transportation, despite the contractual 
 
         arrangement which termed him as an independent contractor.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Mid Seven Transportation exercised substantial control 
 
         over the timing and manner in which Paul Ellinwood provided 
 
         services to it.
 
         
 
              2.  Paul Ellinwood, by the provisions of the lease 
 
         agreement, was required to perform services exclusively for Mid 
 
         Seven Transportation, to the exclusion of performing work for 
 
         other carriers.
 
         
 
                                CONCLUSIONS OF LAW
 
          
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Paul Ellinwood was an employee of Mid Seven 
 
         Transportation for purposes.of workers' compensation.
 
              
 
              3.  The expenses incurred by an owner-operator are 
 
         considered when determining the rate of compensation to be paid 
 
         to an owner-operator trucker.
 
         
 
                                      ORDER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation at the rate of two hundred seventy-two and 31/100 
 
         dollars ($272.31) per week for the stipulated healing period and 
 
         permanent partial disability entitlements.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 27th day of June, 1989.
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         W. Des Moines, Iowa  50265
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                
 
                                            51504, 52001, 52002, 53003
 
                                            Filed June 27, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL ELLINWOOD,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 822326
 
         
 
         MID SEVEN TRANSPORTATION,               A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         51504, 52001, 52002
 
         
 
              Owner-operator trucker determined to be employee despite 
 
         lease agreement which provided that he was an independent 
 
         contractor.
 
         
 
         53003
 
         
 
              The owner-operator's expenses of operating the truck are to 
 
         be considered when determining the rate of compensation.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                                                    
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                                                       
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            VICKIE L. PARKER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 822386
 
            LENNOX INDUSTRIES,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :   (EXPEDITED PROCEEDING)
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Vickie Parker seeks to establish the employer's 
 
            liability for unpaid medical expenses which total $1,853.27 
 
            and for expenses in the amount of $2723 which have been paid 
 
            by the employer's group plan carrier.  It was stipulated 
 
            that in the event that the employer is liable that section 
 
            85.38(2) of the Code gives the employer credit for the 
 
            charges paid by its group carrier.
 
            
 
                                 FINDING OF FACTS
 
            
 
                 Vickie Parker developed an injury in the nature of 
 
            bilateral carpal tunnel syndrome in 1986.  She underwent 
 
            surgery which was performed by the employer-selected 
 
            physician, Carl O. Lester, M.D.  She had continued problems 
 
            and a second surgery was performed on the right hand in 
 
            1987.  Thereafter Vickie continued to have problems and had 
 
            additional tests and consultations.  A note from  Dr. 
 
            Lester's records dated November 23, 1988, indicates that Dr. 
 
            Lester quite strongly recommended that Vickie not return to 
 
            assembly line work.  Dr. Lester's records show that Vickie 
 
            continued to see him in March, April, May, and July of 1989.  
 
            
 
                 In late 1988 or early 1989 Vickie consulted Arnis 
 
            Grundberg, M.D., a Des Moines, Iowa, orthopedic surgeon with 
 
            a subspecialty in surgery of the hands and arms about her 
 
            continued complaints.  His records and reports are not in 
 
            evidence but it appears as though he recommended some sort 
 
            of surgical procedure.  Vickie apparently discussed that 
 
            recommendation with Dr. Lester as is noted by the May 1, 
 
            1989 office note.  
 
            
 
                 Vickie's complaints did not resolve with care from Dr. 
 
            Lester.  An office note of July 5, 1989, indicates that 
 
            tests showed mild carpal tunnel syndrome on her right hand 
 
            and a positive Tinel's (nerve compression at the elbow 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            indicating cubital tunnel syndrome) on the right but that he 
 
            felt surgery was not advisable.  A subsequent note dated 
 
            June 4, 1990, indicates that Dr. Lester was not inclined to 
 
            provide further testing.  A report bearing the date of June 
 
            5, 1990, indicates that he felt no surgery was warranted.  
 
            
 
                 In late 1990 or early 1991 Vickie returned to Dr. 
 
            Grundberg.  EMG tests were conducted which were interpreted 
 
            as being within normal limits but which also gave findings 
 
            which would indicate mild carpal tunnel syndrome and mild 
 
            cubital tunnel syndrome on the right side.  Dr. Grundberg 
 
            requested authorization to perform surgery  on Vickie's 
 
            right elbow but the request was denied.  Claimant was 
 
            directed to return to Dr. Lester.  Vickie also contacted the 
 
            employer's safety director and plant manager regarding 
 
            obtaining surgery but her request for care other than that 
 
            recommended by Dr. Lester was denied. 
 
            
 
                 After the 1991 recommendation by Dr. Grundberg for 
 
            surgery was denied, claimant consulted her family physician 
 
            and was referred to Scott Neff, D.O., a Des Moines 
 
            orthopedic surgeon.  Dr. Neff also felt that claimant should 
 
            have surgery on her right elbow and hand.  He performed the 
 
            surgery.  The operative report dated July 18, 1991, shows 
 
            that the median nerve at the palm of claimant's right hand 
 
            was imbedded in scar tissue and decompression of that nerve 
 
            was performed.  The ulnar nerve was then decompressed at the 
 
            location of the right elbow.  In a report dated June 24, 
 
            1991, Dr. Neff attributes the problems to claimant's work.  
 
            
 
                 Vickie recovered from the surgical procedure and has 
 
            now been able to resume regular duty.  She no longer 
 
            functions under the restrictions with which she functioned 
 
            while under the care of Dr. Lester.  It is found that her 
 
            condition has been improved as a result of the treatment 
 
            provided by and under the direction of Dr. Neff.
 
            
 
                 Since this proceeding is brought under rule 343 IAC 
 
            4.44 and no contrary evidence has been presented, the 
 
            inference therefore prevails and the treatment is found to 
 
            have been reasonable and the charges are likewise found to 
 
            be reasonable.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The only real issue involved in this case is the 
 
            authorization defense.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Larson states in 2 Workmen's Compensation Law, 61.12(a) 
 
            and 61.12(e):
 
            
 
                 [I]t is generally held that the employee should 
 
                 ordinarily not incur medical expense without first 
 
                 giving the employer a reasonable opportunity to 
 
                 furnish such services, and if he does so, the 
 
                 employee will be liable for that expense 
 
                 himself...
 
            
 
                 ...If the employer has sufficient knowledge of the 
 
                 injury to be aware that medical treatment is 
 
                 necessary, he has the affirmative and continuing 
 
                 duty to supply medical treatment that is prompt, 
 
                 in compliance with the statutory prescription on 
 
                 choice of doctors, and adequate; if the employer 
 
                 fails to do so, the claimant may make suitable 
 
                 independent arrangements at the employer's 
 
                 expense.
 
            
 
                 It is usually held that, when the employee has 
 
                 furnished the employer with the facts of his 
 
                 injury, it is up to the employer to instruct the 
 
                 employee on what to do to obtain medical 
 
                 attention, and to inform him regarding the medical 
 
                 and surgical aid to be furnished...
 
            
 
                    The employer need not actually have refused 
 
                 medical services; it is enough that the has 
 
                 neglected to provide them...
 
            
 
                 [T]he furnishing of medical services by the 
 
                 employer must be prompt; if there is undue delay, 
 
                 the employer may become liable for services 
 
                 engaged by the employee in the meantime....
 
            
 
                    Moreover, if the employee has once justifiably 
 
                 engaged a doctor on his own initiative, a belated 
 
                 attempt by the employer to offer a doctor chosen 
 
                 by the employer will not cut off the right of the 
 
                 employee to continue with the employee's 
 
                 doctor....
 
            
 
                 Finally, the services offered by the employer must be 
 
            adequate.
 
            
 
                    In this connection, difficult questions can 
 
                 arise when there is a difference of opinion on 
 
                 diagnosis or appropriate treatment, as when the 
 
                 employer's doctor recommends conservative measures 
 
                 while the claimant thinks he should have surgery.  
 
                 One way to settle this kind of controversy is to 
 
                 let the result turn on whose diagnosis proved to 
 
                 be right.
 
            
 
                 The agency has adopted the reasoning which lets the 
 
            result of the treatment control the outcome of the 
 
            controversy.  Richards v. Department of General Services, 
 
            Building and Grounds Division, Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions, 684 (App. Dec. 1985).  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 This is one of those cases where there has been a 
 
            difference of opinion on diagnosis and treatment.  Vickie 
 
            clearly gave the employer and Dr. Lester ample opportunity 
 
            to furnish additional surgery but they declined to do so.  
 
            At that point Vickie was justified in engaging a physician 
 
            on her own initiative as she did when she was referred by 
 
            her family physician to Dr. Neff.  She had no further duty 
 
            to again renew her request for surgery to the employer or 
 
            the employer's physician since her previous requests for 
 
            what was apparently the same surgery had been denied.  
 
            
 
                 When Vickie sought care from Dr. Neff she did so at her 
 
            own peril.  In this case the surgery was successful.  It has 
 
            allowed Vickie to resume regular activity and has resolved 
 
            her complaints.  It is the diagnosis and care from Doctors 
 
            Neff and Grundberg which has proven to be correct rather 
 
            than that from Dr. Lester.  In fact, Dr. Lester in a report 
 
            dated October 9, 1991, seems to now concur with the 
 
            treatment which was provided by Dr. Neff.  His decision to 
 
            concur, after the fact, is of no benefit to the employer's 
 
            defense.  It seriously detracts from the employer's defense 
 
            in this case.  
 
            
 
                 It is therefore concluded that the lack of 
 
            authorization defense fails.  Claimant has proven that the 
 
            treatment in which the expenses she seeks to recover were 
 
            incurred is treatment provided for the results of a 
 
            work-related injury.  The treatment which was provided was 
 
            reasonable and the charges made are found to be reasonable.  
 
            Claimant is therefore entitled to recover.
 
            
 
                 Claimant could have but did not bring an action for 
 
            alternate medical care before this agency.  That was clearly 
 
            an option available to her but she also was entitled to 
 
            proceed as she did in this case, bearing in mind that she 
 
            acted at her own peril.  If the care by Dr. Neff had not 
 
            proven to be successful, the result of this case would be 
 
            different.
 
            
 
                                     ORDERED
 
            
 
                 IT IS THEREFORE ORDERED that the defendant employer and 
 
            its insurance carrier pay the following medical expenses:
 
            
 
                 Iowa Methodist Medical Center           $   60.00
 
                 Rehabilitation Medicine Assoc.          $  326.00
 
                 Mercy Hospital Medical Center           $1,467.27
 
            
 
                 It is further ordered that while defendants are liable 
 
            for the charges incurred with Dr. Neff in the amount of two 
 
            thousand seven hundred twenty-three dollars ($2723) that the 
 
            employer is entitled to credit pursuant to section 85.38(2) 
 
            for the payment made by its group plan carrier and that the 
 
            employer and its insurance carrier shall keep the claimant 
 
            harmless from any and all claims or liabilities that may be 
 
            made against her by reason of such payments having been made 
 
            by the group plan carrier.
 
            
 
                 It is further ordered that the costs of this action are 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Theodore R. Hoglan
 
            Attorney at Law
 
            34 S 1st Ave
 
            PO Box 306
 
            Marshalltown, Iowa  50158
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Ave. STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
           
 
            
 
                  
 
            
 
                                                 2501 2503 2701 2909
 
                                                 Filed July 26, 1993
 
                                                 Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            VICKIE L. PARKER,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 822386
 
            LENNOX INDUSTRIES,  
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                                            (EXPEDITED PROCEEDING)
 
            EMPLOYERS MUTUAL,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2501 2503
 
            The employer's physician recommended continued conservative 
 
            care and the employer and insurance carrier denied 
 
            claimant's request for additional surgery based upon the 
 
            recommendations of a specialist.  Claimant then, through her 
 
            family doctor, arranged referral to another specialist who 
 
            felt that surgery was warranted and performed the surgery.  
 
            As a result of the surgery, the claimant's activity 
 
            restrictions were able to be removed and the claimant 
 
            resumed full duty work.  She had been on restricted duty 
 
            with residual complaints for approximately three years 
 
            preceding the surgery while under the care of the authorized 
 
            physician.  It was held that the authorization defense 
 
            failed since the care the claimant requested ultimately 
 
            proved to be correct.  Citing Larson and agency precedent.
 
            
 
            2701 2909
 
            It was not necessary for claimant to bring an alternate care 
 
            proceeding in order to recover the expense of treatment 
 
            which she had arranged on her own that was contrary to that 
 
            authorized by the employer.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LILY ANN ADAMS,               :
 
                                          :        File No. 822391
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Lily Ann Adams, filed on August 4, 1987, 
 
            against the Second Injury Fund, defendant.  The hearing was 
 
            held in Mason City, Iowa on November 7, 1989.  Claimant 
 
            testified at her hearing.  The following individuals also 
 
            testified at the hearing:  Audrey Adams, mother of claimant; 
 
            Toni Baltierra, manager of Wendy's Hamburgers, Mason City; 
 
            and, Wendie Coyier, an employee of Schneider Metal 
 
            Manufacturing Company.  The record also consists of 
 
            claimant's exhibits 1-21 and the Second Injury Fund's 
 
            exhibits A and B.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant is entitled to benefits from the second injury 
 
            fund;  2) and, if so, the amount of those benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant sustained an injury to her left lower leg on 
 
            March 24, 1976, while she was playing hopscotch.  A. J. 
 
            Wolbrink, M.D., diagnosed and treated claimant for a 
 
            fracture of the left distal tibia.  Approximately four years 
 
            later, claimant stepped into a hole with her left leg.  W. 
 
            Janda, M.D., performed a surgical manipulation of the left 
 
            ankle.  Dr. Janda found:
 
            
 
                 The Xrays showed the symptomatic left ankle to be 
 
                 quite stable; the right ankle (asymptomatic) to be 
 
                 unstable at about 20 degrees of tilt.  It was 
 
                 noted there was no swelling, discoloration about 
 
                 the left ankle and it was decided that no open 
 
                 surgical treatment was warranted at this time....
 
            
 
                 Claimant was in high school at the time of Dr. Janda's 
 
            manipulation.  She completed her education at the 
 
            alternative school.  During her tenure as a student, 
 
            claimant worked in food service at the IOOF Home and at 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Wendy's Hamburgers.
 
            
 
                 After graduation, claimant attended and completed a 
 
            vocational course in welding at North Iowa Area Community 
 
            College.  The course was a nine month course.  Claimant was 
 
            then hired as a hielarc welder by Schneider Metal 
 
            Manufacturing Company on September 9, 1985.  She was laid 
 
            off on October 31, 1986, when there was a reduction in force 
 
            and claimant refused a lower paid position.
 
            
 
                 During her employment, claimant sustained an injury to 
 
            her right upper extremity.  Surgery was performed on May 2, 
 
            1986, by T. C. Mead.  Dr. Mead performed a right carpal 
 
            tunnel release.  Subsequent to the surgery, Dr. Mead 
 
            provided a final evaluation.  He rated claimant as having a 
 
            three percent functional impairment to the right upper 
 
            extremity.
 
            
 
                 One month subsequent to claimant's layoff, she obtained 
 
            employment in the fast food industry.  She remained employed 
 
            in that field.  As of the date of the hearing, claimant was 
 
            earning $4.50 per hour.
 
            
 
                 In anticipation of this litigation, claimant sought an 
 
            examination and evaluation from John R. Walker, M.D.  With 
 
            respect to the left lower extremity, Dr. Walker opined:
 
            
 
                 In regard to the left, lower extremity, the 
 
                 patient states that she does have some swelling 
 
                 and discomfort from time to time if she stands too 
 
                 long.  This is the only complaint that she has.  
 
                 Examination today reveals that the leg lengths are 
 
                 almost exactly equal.  She has no atrophy of 
 
                 either thigh, however, she has only 1/8 of an inch 
 
                 atrophy of the left calf and there is no swelling 
 
                 today.  Ankle motion is normal in flexion, 
 
                 extension.  Subtalar motion is also normal in this 
 
                 area too.  Clinically she looks to have an 
 
                 excellent result, however, her x-rays do show a 
 
                 slight deformity with bowing of the tibia, 
 
                 slightly posteriorly on the lateral, just a few 
 
                 degrees.  There is a well-healed, thickened area 
 
                 that is certainly not normal at the fracture line 
 
                 which is approximately four inches above the ankle 
 
                 joint.  On the AP we note that she has a minimal 
 
                 varus or so called bowlegged deformity amounting 
 
                 to approximately 7 degrees and posteriorly the 
 
                 bowing amounts to 7 degrees as well.
 
            
 
                 This patient certainly does have an excellent 
 
                 clinical result obviously.  By x-ray it is not 
 
                 quite as good as one would expect in viewing the 
 
                 leg externally.  It is my opinion that she does 
 
                 have a permanent impairment of 4% of the left, 
 
                 lower extremity which converts to 2% of the whole 
 
                 man.  Adding the upper and lower extremities 
 
                 together we then come up with a permanent, partial 
 
                 impairment of 7% of the whole man or the body as a 
 
                 whole.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 No treating physician provided an impairment rating for 
 
            the left lower extremity.  Claimant testified during the 
 
            hearing that she had not had medical care for her left leg 
 
            for approximately eight years.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received injuries which arose out 
 
            of and in the course of her employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 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).
 
            
 
                 In the instant case, the focus is whether the second 
 
            injury fund is liable for benefits.  Iowa Code section 85.64 
 
            provides, in part:
 
            
 
                 If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there had been no pre-existing 
 
                 disability.  In addition to such compensation, and 
 
                 after the expiration of the full period provided 
 
                 by law for the payments thereof by the employer, 
 
                 the employee shall be paid out of the "Second 
 
                 Injury Fund" created by this division the 
 
                 remainder of such compensation as would be payable 
 
                 for the degree of permanent disability involved 
 
                 after first deducting from such remainder the 
 
                 compensable value of the previously lost member or 
 
                 organ.
 
            
 
                 Under Iowa Code section 85.63 through 85.69, three 
 
            requirements must be met in order to establish fund 
 
            liability:  First, claimant must have previously lost or 
 
            lost the use of a hand, an arm, a foot, a leg or an eye; 
 
            second, through another compensable injury, claimant must 
 
            sustain another loss or loss of use of another member; and 
 
            third, permanent disability must exist as to both injuries.  
 
            If the second injury is limited to a scheduled member, then 
 
            the employer's liability is limited to the schedule and the 
 
            fund is responsible for the excess industrial disability 
 
            over the combined scheduled losses of the first and second 
 
            injuries.  Simbro v. DeLong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983), and Fulton v. Jimmy Dean Meat Company, file 
 
            number 755039, Nos. 87-1567/87-1518 (Affirmed by the Iowa 
 
            Supreme Court on February 22, 1989.)
 
            
 
                 The Iowa Supreme Court recently addressed the liability 
 
            of the Second Injury Fund in the case of Neelans v. John 
 
            Deere Component Works, 436 N.W.2d 355 (Iowa 1989).  In the 
 
            Neelans case, Justice Larson described the purpose to the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            fund.  He wrote at page 358.
 
            
 
                 The language of the second injury act supports 
 
                 this conclusion by providing that "[t]he employer 
 
                 shall be liable only for the degree of disability 
 
                 which would have resulted from the latter injury 
 
                 if there had been no pre-existing disability."  To 
 
                 hold otherwise would in effect penalize the 
 
                 employer who hired a person with a prior injury.  
 
                 The purpose of Second Injury Fund statutes was to 
 
                 provide a more favorable climate for the 
 
                 employment of persons injured through service in 
 
                 World War II.  Jackwig, The Second Injury Fund of 
 
                 Iowa:  How Complex Can a Simple Concept Become?, 
 
                 28 Drake L. Rev. 889, 890-91 (1979).  Similar 
 
                 considerations still weigh heavily in our 
 
                 interpretation of the second injury act.  See 
 
                 e.q., Anderson v. Second Injury Fund, 262 N.W.2d 
 
                 789, 791-92 (Iowa 1978) (purpose to encourage 
 
                 employers to hire handicapped workers).
 
            
 
                 In the present case, there seems to be no argument 
 
                 about the extent of the second injury standing 
 
                 alone:  it is a scheduled injury which does not 
 
                 extend to the body as a whole, even though the 
 
                 cumulative effect of this injury and the prior 
 
                 injuries was to cause such disability.
 
            
 
                 In this case, if it had not been for the prior 
 
                 injuries sustained by Neelans, the employer would 
 
                 be liable only to the extent provided by the 
 
                 schedule for a leg injury.  To hold that the 
 
                 present employer would be liable for payment of a 
 
                 greater amount as a result of the preexisting 
 
                 injuries would be inconsistent with the purpose 
 
                 and language of the statute.
 
            
 
                 The industrial commissioner correctly ruled that 
 
                 the Second Injury Fund should be responsible for 
 
                 the industrial disability, less the total of the 
 
                 scheduled injuries, or a total of 262 weeks.  
 
                 Accordingly, we reverse and remand for 
 
                 reinstatement of the order by the commissioner.
 
            
 
                 Claimant has failed to establish that the Second Injury 
 
            Fund is liable for benefits to her.  Claimant has not met 
 
            the test requirements set out in sections 85.63 through 
 
            85.69.
 
            
 
                 Specifically, claimant has failed to prove that her 
 
            injury to the left leg was permanent in nature.  Neither Dr. 
 
            Wolbrink nor Dr. Janda, the treating physicians, have 
 
            provided permanent impairment ratings.  Claimant was not 
 
            restricted in any fashion with respect to her left lower 
 
            leg.  She was able to go to school and work part-time.  
 
            Claimant did not list a left leg injury on her job 
 
            application for employment with Schneider Metals 
 
            Manufacturing Company.  Claimant did not have medical 
 
            treatment for her left leg in nearly eight years.  While Dr. 
 
            Walker assessed a four percent permanent impairment to the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            left leg, it is unclear what Dr. Walker used as a basis for 
 
            that rating.  Claimant had normal range of motion and her 
 
            only complaint was occasional swelling and discomfort if she 
 
            stood too long.  Therefore, not much weight is given to Dr. 
 
            Walker's impairment rating.
 
            
 
                 Claimant has not established that she has sustained a 
 
            permanent injury to her left lower extremity.  She has 
 
            failed to prove she has a permanent disability for both 
 
            injuries.  Thus the tests set out in sections 85.63 through 
 
            85.69 have not been met.  As a consequence, claimant has not 
 
            established any entitlement to benefits from the Second 
 
            Injury Fund.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Costs of this action are assessed against claimant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
            
 
                 Signed and filed this ____ day of June, 1990.
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey, III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City  IA  50401
 
            
 
            Mr. Craig Kelinson
 
            Special Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-3200
 
                                                    Filed June 21, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LILY ANN ADAMS,               :
 
                                          :        File No. 822391
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-3200
 
            Claimant failed to establish any entitlement to benefits 
 
            from the Second Injury Fund.  Claimant was unable to prove 
 
            any permanency because of the alleged first injury.  She 
 
            could not meet the requirements mandated by the statute.