BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ IMELDA P. LUNA, f/k/a IMELDA P. SMITH, Claimant, FILE NO. 823407 VS. A R B I T R A T I 0 N KNOTT PRINTERS D E C I S I 0 N Employer and CINCINNATI INSURANCE COMPANY, Insurance Carrier Defendants. _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Imelda P. Smith, now Luna as a result of her marriage since the commencement of these proceedings (the caption is amended accordingly), claimant, against Knott Printers, employer (hereinafter referred to as Knott), and Cincinnati Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury in January, 1986. On October 8, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and Albert Church. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant was employed by Knott at the time of the alleged work injury. 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $131.79 per week. 3. Claimant is only seeking temporary total disability benefits or healing period benefits from May 16, 1986 through January 4, 1987. 4. All requested medical benefits have been paid by defendants.. In her post-hearing brief, claimant offered new evidence into the record labeled as exhibit A, consisting of correspondence with one of the treating physicians after the hearing. For reasons of due process alone, this should not be allowed. However, a deputy commissioner has no such discretion. Division of Industrial Services Rule 343-4.31 specifically prohibits the taking of evidence after the hearing. Therefore, exhibit A shall not be received into the evidence and was not considered in arriving at this decision. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. Whether there is a causal relationship between the work injury and the claimed disability; and, III. The extent of weekly disability benefits to which claimant is entitled. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. Claimant testified that she began working for Knott in December, 1985. She said that she was hired to work in the bindery but was eventually taught to operate a printing press. The bindery work involved such tasks as cutting paper and operating the folding machine along with other miscellaneous duties. Such work required claimant to occasionally lift boxes of paper. Claimant had been working in print shops in the past. At the time of the alleged work injury, claimant was also working part-time as a cook in a mexican restaurant. This cooking job also required claimant to occasionally lift and use her hands on a repetitive basis. The facts surrounding the work injury are in dispute. Claimant testified that sometime in January, 1986 (she was unsure of the exact date) while working overtime at Knott on a Saturday morning during an annual inventory, she stumbled on boxes lying on the floor and struck her right elbow on a folder machine. Claimant said that after the incident her elbow hurt "real bad" and was asked by her supervisor at the time, Dan Curry, if she was "ok." Claimant responded to her supervisor in the affirmative and she continued working despite the persistence of elbow pain. Claimant testified that she reported for work the following Monday and despite the absence of bruising and swelling in her right elbow, the elbow hurt when she tried to use her arm while performing her regular duties. Claimant did not seek immediate medical treatment. Claimant explained at hearing that she had pain pills which had been prescribed for a gum disease and she used these pills for the pain thinking that the elbow problem would eventually "go away." However, claimant testified that the pain grew worse over time and she began to experience difficulty sleeping at night. LUNA V. KNOTT PRINTERS Page 3 Eventually, she talked to her supervisor a few weeks later and to the owner of Knott, Albert Church. Claimant was then sent to the hospital for treatment. In a note dated February 25, 1986, P. Trammer, M.D., reports that claimant complained to him that she bumped her arm at Knott and fell "against something about 3 weeks ago and that "It is not getting any better." Dr. Tranmer's diagnosis was "Contusion, right lateral humeral epicondyle with mild epicondylitis." The doctor prescribed a Velco Tennis Elbow splint and coated aspirin. Claimant testified that she did not return to Dr. Trammer after that time because she felt that the pain would eventually subside. Claimant said that she eventually ran out of the coated aspirin and her own pain pills and again talked with Church who referred claimant to William Catalona, M.D., an orthopedic surgeon. In a note dated May 13, 1986, Dr. Catalona reports as follows: "Comes for 2nd opin. cause painful rt. elbow related to inj. when struck elbow hard against machine at work Jan. 186." Dr. Catalona diagnosed acute tennis elbow and advised claimant to change jobs until the pain subsided and to avoid aggravation of the condition. Claimant returned to work but only performed dusting and cleaning work. On Friday, May 16, 1986, claimant testified that she was told by Church that he "would have to let her go" and was told to seek unemployment benefits and that church would not contest such an application. Claimant said that after leaving Knotts she did not seek unemployment compensation benefits as she was not able to work. Claimant testified that she did not work anywhere between May 16, 1986 and January 4, 1987, including her part-time cooking job. In October, 1986, claimant married and moved to Houston, Texas where she now resides. At the time she left Iowa, she was still under the care of Dr. Catalona for her elbow condition. The doctor gave her his records and she then sought treatment from another orthopedic surgeon in Texas, Ariston P. Awitan, Jr., M.D. In a report dated April 6, 1987, Dr. Awitan states that he likewise diagnosed epicondylitis of the right elbow and treated claimant with anti-inflammatory medication. Dr. Awitan released claimant for regular duty effective January 5, 1987. Claimant testified that she now feels fully able to return to work and has experienced no further difficulties with her right elbow since Dr. Awitan's release to return to work. Church testified that from his observations of claimant, claimant was able to perform her regular duties at Knott before and after the alleged work injury. He said that he first learned of claimant's fall from his supervisor two weeks after the incident. He said that after the first referral to a doctor, claimant returned to regular work and made no further complaints to him until May, 1986. He said that he talked to Dr. Catalona after the doctor first examined claimant and was told by Dr. Catalona to put her on light duty. However, Church also testified that Dr. Catalona told him that claimant's condition was not related to the fall. Church stated that he laid claimant off on May 16, 1986 not because of her work injury or inability to perform her regular duties, but because of a lack of work and only kept her on staff until she repaid him for a prior loan he had given her before the work injury. Apparently, he was LUNA V. KNOTT PRINTERS Page 4 deducting money from claimant's check to repay the loan. Finally, Church testified that claimant was wearing high heels on the day of the alleged injury and that this violated his safety rules. Claimant denied at the hearing that she was wearing high heels as such apparel would not be suitable for inventory work. Claimant's appearance and demeanor at the hearing indicated that she was testifying in a candid and truthful manner. The same cannot be said of Church's appearance and demeanor. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Hauqen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of LUNA V. KNOTT PRINTERS Page 5 law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, The injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant has established by the greater weight of the credible evidence that she suffered a work injury which was a cause of a temporary disability during a period of recovery. Claimant's account of the fall and that the fall precipitated her elbow problems is uncontroverted. The fact that the fall actually occurred is not in serious dispute. There is also little question from the evidence presented that claimant was temporarily disabled as a result of a tennis elbow condition. The fighting issue in this case is the causal connection of the tennis elbow condition to the work injury. First, the testimony of Church relating to Dr. Catalonals opinion was admissible hearsay as this is an administrative hearing. However, the offering of medical expert testimony by way of self-serving hearsay by a party is highly unreliable, especially in this case where Church's credibility is suspect. Claimant, on the other hand, credibly testified that she had no prior elbow problems and no other elbow injuries. This testimony is uncontroverted. Furthermore, the tennis elbow condition was first diagnosed by Dr. Trammer and this diagnosis has remained unchanged by the two subsequent treating orthopedic surgeons. Although no doctor specifically states that the tennis elbow condition was caused by the fall, the only diagnosis of claimant's condition after the fall has been tennis elbow and no other history of injury or elbow complaint has been placed into the record except for the complaints since the alleged work injury. Although claimant was supposedly laid off for reasons other than her work injury, claimant is still entitled to temporary total disability benefits under Iowa Code section 85.33(l) if she was unable to return to her regular work at the time she was laid off. It is virtually uncontroverted that claimant was not released for full duty until January 5, 1987. As claimant was returned to full duty without further complaints, claimant is only entitled to temporary total disability benefits under Chapter 85 of the Code. However, an award of permanent partial disability benefits was certainly considered by this deputy commissioner under the holding of Blacksmith v. All-American as the testimony of Church that claimant's temporary disability played no part in the lay off was highly questionable. Permanent disability benefits can be awarded without a showing of permanent partial impairment when it is established that there was a change of employment or jobs to the economic disadvantage of claimant caused by the work injury. On the other hand, claimant failed to show that she was replaced by another healthy person and it could not be found that the firing of claimant was due to the work injury despite Church's LUNA V. KNOTT PRINTERS Page 6 lack of credibility. In the prehearing report defendants raised the defense that claimant should be denied benefits for violation of work rules but cites no authority for such a defense. This deputy is aware, however, that there is some authority in the law of workers' compensation for such an argument but feels that such a rule is not valid in the State of Iowa. Such a rule is nothing more than a resurrection of the old contributory negligence assumption of the risk defenses outlawed in the early 1900's when chapter 85 was enacted in this state. However, assuming the validity of such a doctrine, defendants would have the burden to establish such a defense. In this case, claimant creditably denied she was wearing high heeled shoes and the defendants failed to carry their burden of proof in this matter. Claimant sought in this proceeding reimbursement for the expense of purchasing a plane ticket to attend a previously scheduled hearing in this matter which was later continued at the request of defendants. Claimant admitted at the hearing that her attorneys agreed to the continuance. Claimant should have raised the expense issue at the time of the request for the continuance. Such costs are not the type of costs that can now be awarded from this proceeding. See Division of Industrial Services Rule 343-4.33. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of Knott in January of 1986. 3. Sometime in January, 1986, claimant suffered an injury to the right elbow which arose out of and in the course of her employment with Knott. This injury consisted of a epicondylitis or tennis elbow precipitated by contusion to the arm following a fall at work. 4. The work injury of January, 1986, was a cause of a period of temporary disability from work beginning on May 16, 1986 and ending on January 4, 1987 at which time claimant was medically capable of returning to the same type of work she was performing at the time of the work injury. Although it could not be found that claimant was laid off on May 16, 1986 as a result of the work injury, she was not working between May 16, 1986 and January 4, 1987 and was not physically able to return to the type of work she was performing at the time of the work injury until January 5, 1987. 5. It could not be found that claimant suffered permanent impairment or permanent disability from the work injury. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement.to temporary total disability benefits as awarded below. ORDER LUNA V. KNOTT PRINTERS Page 7 1. Defendants shall pay to claimant temporary total disability benefits from May 16, 1986 through January 4, 1987 at the rate of one hundred thirty-one and 79/100 dollars ($131.79) per week. 2. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. 3. Defendants shall pay the costs of this action pursuant to division of Industrial Services Rule 343-4.33. 4. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services 343-3.1. Signed and filed this 15th day of December, 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER LUNA V. KNOTT PRINTERS Page 8 COPIES TO: Mr. David W. Newell Attorney at Law 323 East Second Street P. 0. Box 175 Muscatine, Iowa 52761 Mr. John M. Bickel Attorney at Law 500 MNB Bldg. P. 0. Box 2107 Cedar Rapids, Iowa 52406 1801 Filed December 15, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ IMELDA P. LUNA, f/k/a IMELDA P. SMITH, Claimant, FILE NO. 823407 VS. A R B I T R A T I 0 N KNOTT PRINTERS, D E C I S I 0 N Employer, and CINCINNATI INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 1801 Claimant awarded temporary total disability benefits in a credibility contest between her and her boss as to the work relatedness of her tennis elbow. Although claimant was laid off for reasons unrelated to her work injury, she was still entitled to temporary total disability benefits because she was not medically able to return to the type of duty she was able until several weeks thereafter. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT CORONADO, Claimant, vs. File No. 823415 ARMOUR FOOD COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and F I L E D THE HARTFORD INSURANCE COMPANY, JAN 19 1990 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER and SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Gilbert Coronado, claimant, against Armour Food Company, employer, Hartford Insurance company, insurance carrier, and the Second Injury Fund of Iowa, defendants, to recover benefits.under the Iowa Workers' Compensation Law as a result of an injury sustained on July 15, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner on October 12, 1988 and was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Bobby Joe Loftis, Lowell White, Larry Bustamantes, Reverend John Smith, Ardis Opheim, Ronald Eischen, Barbara Steil, Audry White and Wes Russeff; claimant's exhibits 1 through 26, inclusive; and defendants' exhibits 1, 2, 4, 5, 6 and 15. ISSUES Pursuant to the prehearing report and order submitted and approved October 12, 1988, the following issues are presented for resolution: 1. The extent of claimant's entitlement to weekly benefits, including healing period and permanent partial disability benefits; 2. The nature of claimant's permanent partial disability; 3. The applicability of the odd-lot doctrine; and 4. The liability of the Second Injury Fund. FACTS PRESENTED Claimant testified that on or about July 15, 1985 his hands got "tingly, numby" and hurt and that, as a result, the company sent him to A. J. Wolbrink, M.D., who treated him for "quite a few things," explaining that he "could not remember all of them." Claimant recalled that eventually he returned to his regular job of boxing bacon but that his hands and wrists kept swelling, tingling and "getting worse" so much so that he could not move his hands after work. Claimant stated that defendant employer sent him to see a number of doctors, that he attempted to follow all the instructions given him but that eventually the doctor told him he could not work in a packing plant. Claimant testified that when he tries to do something his hands swell up and hurt and that therefore he cannot do much of anything. Claimant explained he has attempted to find employment but has been unsuccessful in retaining work due to pain. Claimant stated he has been to "quite a few" vocational rehabilitation centers but they have been unable to place him anywhere. Claimant testified he does not have the strength to hang on to more than 20 pounds because he starts to lose his grip and that if he bends over to lift something he feels pain in his back, between his shoulder blades, his hands and elbows and at times cannot lift his arms. Claimant acknowledged he has been employed since his injury as an "errand boy" for Kinseth Homes for approximately two and one-half weeks, as a janitor at the direction of vocational rehabilitation and at "odd jobs" but at no job did he "make that much." Claimant stated he would have problems doing carpentry work as he cannot lift and cannot use a hammer and that he has difficulty mowing, shoveling snow, wrestling or working out. On cross-examination, claimant acknowledged that on a day-to-day basis he is bothered by his hands and wrists and that the problems he has with his back are a "sometime thing." Claimant testified that the problems he has with his hands and wrists are about the same currently as they were when he left his employment with defendant and that none of the treatment he has received has helped. Claimant denied painting while employed with Great Plains (Kinseth Homes) acknowledging that he did not tell anyone he was working for Great Plains because there was no reason since he was not receiving any workers' compensation benefits at that time, maintained he has not been able to work on cars since he left his employment with defendant, that he has not worked on a lathe machine since high school and that he has not taken any classes since February 1986. Claimant testified he lost the sight in his left eye in 1984 in a fight after having "a few beers" but denied being involved in any other fights. Claimant stated he was currently receiving social security benefits which he believed were for disability and asserted that even though he could lose these benefits if he found a job, he was going to continue looking for work. Bobby Joe Loftis testified he has known claimant as a friend and neighbor for the last few years and had the opportunity to observe claimant when working for the North Iowa Vocational Center. Mr. Loftis stated he saw claimant wear "braces" to "stabilize [his] wrists," saw claimant's hands and wrists swell and saw claimant barely able to move his fingers. Mr. Loftis was unclear whether this was during the fall of 1986 or 1987. Lowell White testified he worked with claimant during the summer of 1987 at the County Care Facility doing janitorial work. Mr. White recalled claimant emptied trash, dusted, mopped and vacuumed until "it bothered him." Mr. White stated claimant had a lot of problems with his hands and grip, that claimant wore braces or splints and that when claimant told his supervisor he could not handle the work, claimant "[hung] around" and watched Mr. White work. Larry Bustamantis, who identified himself as claimant's uncle, testified claimant had been active in athletics in high school and had no physical problems with his hands, arms or back at that time. Mr. Bustamantis admitted he had not been around claimant "that much" but had observed that claimant cannot lift things and "cannot do different things." Father John Smith testified that he taught claimant in religion class and recalled that claimant had difficulty if he was asked to summarize reading material. Father Smith acknowledged he has not observed claimant much since 1985 and could not testify as to any of claimant's current physical problems. Ardis Opheim testified he was a supervisor at North Iowa Vocational Center and assigned claimant to a saw to cut wood and that claimant would require rest after a few hours of work because his "hand hurt." Mr. Opheim found claimant to be a willing worker who tried to do the job and who never complained unless he was asked. Mr. Opheim stated "I cannot find anything else for him to do." Ronald J. Eischen of Eischen Rehabilitation, Inc., a company which provides medical management and vocational rehabilitation services, testified he was contacted by defendant in December of 1985 and asked to identify a treatment program for claimant. Mr. Eischen stated he reviewed claimant's medical records, spoke with claimant and arranged examinations with a hand specialist in Mason City, a hand specialist in Omaha, and a neurologist in Omaha. Mr. Eischen recalled that claimant's complaints centered on his wrists and hands and that no physician recommended any surgery. Mr. Eischen found defendant to be cooperative and willing to return claimant to work and that once claimant had left work, attempts were made to get claimant back but claimant did not feel he could do the work that was being offered. Mr. Eischen recalled that he verbally reviewed with claimant the jobs he thought claimant could do but that claimant wanted retraining rather than a return to work. Mr. Eischen testified that when discussing his physical problems claimant mentioned only his hands and wrists. Mr. Eischen observed that claimant did not rub his hands or wrists at all during their conversations which appeared to him to be atypical behavior of an individual with a hand injury. Mr. Eischen opined that claimant should be able to use his hands in a normal job situation and could not understand why a physician imposed lifting restrictions. Mr. Eischen testified that claimant is employable and capable of doing a number of jobs generally available in the Mason City area. On cross-examination, Mr. Eischen admitted that claimant was intellectually functioning at a lower level than his high school diploma would indicate, that claimant's loss of eyesight could affect some employment opportunities and that although he was not aware claimant was receiving social security disability, social security "would not matter with regard to employability but would matter with regard to motivation." With reference to exhibit 24.7, Mr. Eischen stated he disagreed vocationally with the medical conclusions and testified he reviewed and disagreed with the conclusions expressed by Roger Marquardt in his report found at claimant's exhibit 24.6. Barbara Steil, who identified herself as an investigator with Caradori/Weatherl Investigations, Inc., and as one who is licensed to perform surveillance and investigations in Nebraska and Iowa, testified she was contacted by defendant insurance company to perform an activities check on claimant. Ms. Steil stated she met with claimant on the pretext of taking a survey and that after the survey was completed she engaged in conversations with him about bowling and volleyball at a local lounge. Ms. Steil explained she and her co-investigator went bowling with claimant on July 20, 1988 and made arrangements to play volleyball the following day. Ms. Steil described claimant as a "very good spiker" who asserted he was working at Hardee's Fast Foods and in the family business of moving homes, that he was in a bowling league in 1987 and played volleyball every Sunday, that he could bench press 250 pounds at the Y and that he planned to not look for work until he could settle his workers' compensation case with the insurance company. Ms. Steil stated claimant made no complaint of pain in his hands and/or his wrists either day they were together and that she never observed any swelling of the hands or that claimant was wearing any braces. Audry White, who identified herself as a licensed practical nurse for defendant employer responsible for record-keeping and referring employees to physicians, testified she was familiar with claimant in that she initially sent claimant to Dr. Wolbrink when he began complaining that his hands were a problem. Ms. White recalled that claimant's complaints involved only his hands and wrists and that claimant had been moved to defendant employer's mechanical department which is as "light duty as you can get" but that after four days and two hours claimant complained that he could not do the work anymore. Ms. White testified claimant has neither returned to work nor applied for work and acknowledged that since the nature of the work with defendant employer is repetitive it would be hard to place claimant back at work. Claimant testified again in response to the testimony of Barbara Steil and asserted that Ms. Steil promised and/or "hinted at having" sex with him, that she consumed approximately six beers and three margaritas the evening they were together, that his hands hurt while engaged in the sporting activities but that he "played through the pain" and that it was Ms. Steil who insisted he at least "try" to play volleyball. Wesley Russell, claimant's friend, who was with claimant during Ms. Steil's investigation and surveillance, testified he "pretty much" recalled the two days in July when Ms. Steil was present. Mr. Russell could not recall any conversation concerning Ms. Steil having sex with claimant, maintained claimant said he could not play volleyball because he could not use his hands and that after the volleyball games claimant's hands were swollen and hurt. The medical records of A. J. Wolbrink, M.D., orthopedic surgeon, show claimant was first seen in July of 1985 due to pain in the right hand and that Dr. Wolbrink treated claimant conservatively with medication, physical therapy, exercises and time off work. On March 28, 1985, Dr. Wolbrink opined claimant was disabled because of "significant tendonitis problems of his hands from July 15, 1985 until the present time." Dr. Wolbrink treated claimant regularly through October 23, 1987 and last evaluated claimant on June 23, 1988 after which he reported: On examination, Mr. Coronado had normal range of motion of the cervical spine. He reported some discomfort at extremes of side bending. He had normal range of motion of the shoulders with some crepitation in the rotator cuff, but no apparent pain with impingement testing. The elbows had normal of motion. He continues to have normal range of motion in his hands and fingers and normal sensation throughout the hands with normal circulation. However, grip strength measured only 22/20/18 kilograms with serial measurements in the right hand and 22/21/21 kilograms in the left hand. It is my opinion that Mr. Coronado is disabled. He has tendinitis to the degree that he is not able to use them a minimal amount for a short period of time. I do not think he could tolerate any job which required use of his hands. He could not be employable because he could not tolerate an 8 hour work day on a regular basis. His limited background and abilities limit his ability to obtain a job requiring cognitive skills. Mr. Coronado has now been disabled because of significant problems with his hands since July 15, 1985. There has been very little change during the past three years. Therefore, I would anticipate that this will continue to be this way for at least several months into the future. Reevaluation anually [sic] may be reasonable. (Claimant's Exhibit 24.5) Claimant was seen by W. P. Cooney, M.D., of the Mayo Clinic, beginning in late 1985 and on January 19, 1986 Dr. Cooney reported: He presents with us in September with symptoms of waking almost nightly, five out of seven days a week. He has to rub and shake his hands to get relief. He states during his work that his hands do not bother him but they do at the end of the day when he has completed his work. He also has pain over the proximal forearm area related to the flexor tendinitis with weakness of grip strength and aching in the forearms. [H]e has problems riding his motorcycle, doing push-ups and lifting over ten pounds of weight. He apparently is expected to do heavy work while employed for the Armour Company. Physical findings are: limitation of motion of his shoulder with forward elevation and internal rotation due to capsular tightness, full elbow flexion and extension as well as wrist and forearm motion. Examination of the hand reveals weakness of grip strength bilaterally, 2 kp on the right versus 10 on the left. Pinch strength is similarly reduced. There was good forearm wrist extension and wrist flexion strength. There was local tenderness over the flexor tendons at the level of the wrist suggesting a tendinitis. There were positive Tinel's and Phalen's signs bilaterally. Laboratory sensibility was actually increased with hypersensibility in the median nerve distribution while two point discrimination was decreased. It was our impression the patient had bilateral carpal tunnel syndrome work stress related with flexor tendinitis. An EMG was obtained and the results of that test indicated no evidence of median nerve compression. We, therefore, recommended conservative treatment of cortisone injection and splints. We saw Mr. Coronado back in follow-up on the 16th of October and 18th of November. He continued to have problems of carpal tunnel syndrome. Following our evaluation in September and October he returned to work doing a light duty job which consisted of a lifting program of 50 pound boxes on a repetitive basis. This resulted in a recurrence of his symptoms which were improved by the cortisone injection. He also stated he had difficulty opening and closing his hands because of numbness and stiffness in the morning. He was off work a period of two weeks and his symptoms had improved during that time period. When last seen the patient still had symptoms of bilateral median neuritis at the wrist. We recommended to Mr. Coronado that if he did return to work it should be light duty, wearing his splints, lifting restrictions to no more than 25 pounds, carrying restrictions of no more than 20 pounds and to avoid a cold environment. We recommended that he consider job re-education or training of a suitable work environment was not available at the Armour Company. (Cl. Ex. 2) On January 15, 1986, J. A. Fuehrer, of the Mayo Clinic Business Office, Section of Insurance, wrote that claimant was disabled while under the clinic's care from September 30, 1985 until dismissed on November 13, 1985 and at that time: At that time he was given permission to return to work, light-duty, wearing his splints, with the restriction that he not lift more than 25 pounds, not carry more than 20 pounds, and avoid a cold environment which would be considered to be anything below 45 to 50 degrees Fahrenheit. The patient should be considered totally and permanently disabled from returning to his previous occupation or any other type of work not complying with the above mentioned restrictions. If suitable light-duty work cannot be found vocational retraining was advised. (Cl. Ex. 5) On referral from Ronald Eischen, Thomas F. DeBartolo, M.D., examined claimant on February 11, 1986 and found: My impression is that this patient has bilateral hand and wrist pain secondary to overuse and has not responded to conservative measures. I see no indication that the patient has a surgical problem....The patient right now does not exhibit evidence of acute tendinitis that would be associated with redness, boggy synovial swelling, triggering of the fingers. However, most people feel that in overuse situations the median nerve compression comes from flexor tendon irritation in the carpal tunnel that results in thickened lining of the surrounding synovium of the flexor tendons in this compartment that therefore limits the available space for the median nerve and results in the median nerves symptoms. Therefore, I feel that the current diagnosis of tendinitis or carpal tunnel syndrome that they are talking about is the same thing in this patient's situation. (Cl. Ex. 7) On March 12, 1986, Dr. DeBartolo opined: ... as far as I am concerned Mr. Coronado is not going to benefit from any further treatment other than conservative measures and in not using his wrist in repetitive hand and wrist activities and stressful hand and wrist activities. It is my feeling that Mr. Coronado eventually will be able to use his hands in activities where he is not having to repetitively use the upper extremities such as in the work he has been doing or simply work as a keypunch operator, etc. It would also be beneficial that the working environment not be particularly cold. In terms of answering your question as to the permanent partial impairment that Mr. Coronado has incurred secondary to his work related incident on 7-15-85, his impairment is based on two parameters. He has a very minor loss of motion, combined wrist motion should be approximately 130o according to the AMA guide and the patient has approximately 125o symmetrically. He also has evidence of mild bilateral median nerve compressions. He has negative EMG's but does have a sense of numbness with prolonged median nerve compression and a sense of pain as the median nerve is percussed over his wrist bilaterally. Based on the "AMA Guide" I would rate the patient's subjective pain and sensory loss with his documented loss of strength to be approximately 15% of each upper extremity with 2% of upper extremity loss for the limited dorsiflexion. That would be 17%. He then needs to have 5% taken from the left side since that is his nondominant extremity. On his right side he has 17% and on his left side he has 16%. The combined values would then be 30% of the upper extremity which is 18% of the whole person. (Cl. Ex. 8) At the request of claimant's counsel, claimant was examined by C. B. Carignan, Jr., M.D., a family practitioner, on May 17, 1986. Dr. Carignan found: Physical findings are all normal or unremarkable except for blindness in the left eye and painful wrists with positive Tinels' [sic] sign and Phalen's Sign bilaterally but with normal strength and Range of Motion and slight tingling and Parasthesias in the Radial Nerve distribution of both hands. Grip is normal. These findings are compatible with a diagnosis of bilateral carpal tunnel syndroms [sic]. (Cl. Ex. 10) Dr. Carignan opined: He is presently [sic] 100% disabled for his usual occupation of boxing bacon. His present physical functional impairment is 40% determined as follows: 25% whole person functional impairment due to loss of vision, left eye. 15% whole person functional impairment due to bilateral carpal tunnel syndrome. (10% right+10% left = 15% combined value) (Cl. Ex. 10) Leonard E. Weber, M.D., of the West Dodge Neurologic Clinic, opined that claimant should get into another field or job activity since, even after months off work, he continues to complain of wrist discomfort when using his hands. Dr. Weber opined: "I think this gentleman has suffered some mild past injury to the median sensory branches bilaterally, probably at the wrists or in the carpal tunnels. I cannot detect signs of any ongoing injury to these nerves, but I think that he continues to irritate them with daily activities" (Cl. Ex. 11) Claimant was evaluated by Richard P. Murphy, M.D., on July 10, 1986 "with complaint of persistent discomfort in both wrist and in his [claimant's] estimation the right worse than the left" Dr. Murphy's examination revealed positive Tinel's sign at both wrists, right greater than the left with decreased sensation in the right median nerve in the hand. There was no evidence of motor weakness or thenar atrophy. X-rays showed no acute or chronic bony changes. EMG and nerve conduction times of July 10, 1986 were reviewed and interpreted as normal. Dr. Murphy recorded his impression as: ... median nerve irritation, both wrist, without electrical verification. I discussed with Gilbert with no evidence of tendinitis, synovitis or joint abnormality, appears to be a chronic median nerve irritation manifested by positive Tinel's sign, decreased sensation in the median nerve distribution. I discussed with him additional recommendations would be to attain nerve conduction times after strenuous activity on the hand or a stress induced nerve conduction times. I discussed with him unless this would show delay in nerve conduction times after exercise did not feel surgery would be of any predictable benefit in improving his symptoms. I discussed with Coronado, if EMG and nerve conduction times did not verify lesion, would not recommend surgery. (Cl. Ex. 12) On August 3, 1987, Dr. Murphy opined: My diagnosis remains that of chronic median nerve irritation, both wrist. Based on his persistent complaints of discomfort and pain with use of the hands and wrist, it is my impression that the patient has sustained 10% permanent impairment of each hand and wrist. Including both hands, this represents 20% or using standardized charts this extrapolates to 18% of the upper extremity and 11% for the whole man. (Cl. Ex. 19) Thomas A. Carlstrom, M.D., Neurological Surgeon, saw claimant on December 9, 1986 and found: ...he has good range of motion of his neck, shoulders, and no evidence of a Spurling's or Lhermitte's sign. There is negative Phelan's sign bilaterally and he has good range of motion of his wrists. There is mild tenderness over the wrists bilaterally. His neurologic exam is normal. I have no idea what is causing this man's symptoms. He appears to have a chronic tendonitis. We do see tendonitis in packing plant workers frequently and I suppose this could be related to his work activities. I see little likelihood of any improvement in his symptoms and I think he probably reached maximum benefits of healing approximately six to eight months ago. I would guess that a small impairment, perhaps 1-2% of each extremity could be considered, based upon his symptoms as the range of motion of his wrists is normal. (Cl. Ex. 13) Roger Marquardt, CRC, CIRS, vocation specialist, conducted a vocational evaluation of claimant pursuant to counsel's request on December 9, 1986. Mr. Marquardt opined that if claimant were to find immediate employment, he could perform in the areas of: PER/HR. WAGE** Occupation Average Entry Level Median Fast Food Worker $3.24 $3.41 Industrial Truck Operator 6.32 7.02 Service Station Attendant 3.50 3.50 Janitor 4.48 5.89 Kitchen Helper 3.37 3.65 Watch Guard 5.08 5.30 Mail Clerk 4.06 4.73 Average $4.29 $4.79 (Cl. Ex. 7) Mr. Marquardt went on to report that: With technical training employment possibilities would expand. A sampling of appropriate jobs would be: PER/HR. WAGE** Occupation Average Entry Level Median Bartender $3.64 $3.90 Parts Clerk 4.02 5.58 Short Order Cook 3.42 3.67 Office Machine Servicer N/A 7.00 Offset-Press operator 5.08 7.40 Orderly 3.72 4.28 Average $3.98 $5.31 (Cl. Ex. 17) Mr. Marquardt concluded that: It has been recommended by a number of physicians that Gilbert avoid work activities which would involve the extensive, repetitive, forceful use of his hands and wrists in flexion/extension motions. This restriction would appear to preclude Gilbert's return to the meat plant. We would suggest that a number of the occupations listed in the preceeding [sic] paragraph would be within the range of the limitations imposed upon Gilbert by the physicians. We would suggest that Gilbert would probably benefit from a period of vocational rehabilitation counseling to help acquaint him more with the scope of occupations for which he might be capable. (Cl. Ex. 17) On June 291 1988, Mr. Marquardt updated his report after being provided a letter from the State Vocational Rehabilitation counselor of June 21, 1988 and the narrative report from Dr. Wolbrink dated June 24, 1988. Mr. Marquardt stated: With this additional information reviewed I can only conclude that Gilbert Coronado's tendinitis of the wrists has increased since my initial evaluation. That being true, my conclusions related to appropriate employment options are no longer valid. As originally mentioned, he has no transferable skills from past relevant work. Recognizing this fact, the large majority of unskilled employment require the use of the upper extremities to meet job demands. If, as Dr. Wolbrink mentions, Gilbert cannot tolerate even minimal use of the hands consistently, current jobs for this young man do not exist in any significant numbers. (Cl. Ex. 24.6) Claimant underwent academic assessment at North Iowa Area Community College on January 11, 1988. Alvera Lorenz, Reading Clinician, summarized claimant's test results stating: ...Mr. Coronado has deficiencies in all academic areas assessed with the California Achievement Test. Observations of his assessment include lengthy pondering on mathematics computational problems, insecurity in pronunciation of words on the entry form as well as test readings and questions and working at a much slower pace than is suggested for the assessment. All the information included in the test interpretation indicates that Mr. Coronado is deficient in academic skills. It should be further noted that the norming table used to determine grade equivalents and percentiles for reading and writing tests was one what would be used at beginning of grade five and the one used to determine this information in mathematics was one that would be used at the beginning of grade eight. (Cl. Ex. 23) Bradley L. Isaak, M.D., Ophthalmologist, issued the following report on April 19, 1988: Mr. Gilbert Coronado has been rendered legally blind in the left eye secondary to a traumatic injury which occurred in August of 1984. His eye has sustained a large choroidal rupture directly beneath the macula, leaving it legally blind. It is not amenable to either surgery or glasses correction. He has had continued follow-up since the time of the injury and has remained stable. There is no evidence of glaucoma or retinal detachment. His visual acuity without correction measures 20/25 in the right eye and 20/300 in the left eye. (Cl. Ex. 24.2) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The parties have stipulated and agreed that claimant sustained an injury on July 15, 1985 which arose out of and in the course of his employment and which is the cause of both temporary and permanent disability. Of first concern is the determination of the type of permanent disability from which claimant suffers, i.e., to a scheduled member or an industrial disability to the body as a whole. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Claimant asserts that his injury includes problems with his back, which is an unscheduled injury. However, claimant has failed to present any convincing evidence on this point either through his own testimony or through medical documentation. No physician has found claimant to have any impairment because of his back. Lifting restrictions may be as easily attributable to the upper extremities as to the back. It is also interesting to note that claimant did not once mention any back problems arising as a result of the injury of July 15, 1985 while testifying at hearing unless back problems were first mentioned or suggested to him. This was true with regard to the questioning of claimant on direct examination and on cross-examination for either defendant employer's counsel or counsel for the Second Injury Fund. Claimant has continually and consistently complained of problems with his wrists and hands and at times the elbows. It is clear the residuals of claimant's impairment do not extend beyond the upper extremities and therefore claimant's disability is to a scheduled member and is to be evaluated by the functional method. Iowa Code section 85.34(2)(s) provides: The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such.... In March of 1986, Dr. DeBartolo, an orthopedic surgeon, rated claimant's impairment as 17 percent on the right, 16 percent on the left with a combined value of 30 percent of the upper extremities. In May of 1986, Dr. Carignan, a family practitioner, rated claimant's impairment at 10 percent on the right, 10 percent on the left with a combined value of 15 percent. In December of 1986, Dr. Carlstrom, a neurologist, "guessed" claimant would have a "small impairment" of 1 to 2 percent of each extremity. In August of 1987, Dr. Murphy, an orthopedic surgeon, opined claimant had sustained a 10 percent permanent partial impairment of each hand and wrist with a combined value of 18 percent. Based on all of the evidence presented, the undersigned would conclude claimant sustained a permanent partial disability of 20 percent which, under Iowa Code section 85.34(2)(s), cited above, entitles him to 100 weeks of permanent partial disability benefits. Attention is thus turned to the extent of claimant's healing period. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 209 (Appeal Decision 1982). It is interesting to note that claimant makes no specific request for healing period benefits on the prehearing report. The Form 2A filed by defendants on March 29, 1988 shows claimant was paid a total of 34.286 weeks of healing period for the periods from October 28, 1985 through November 17, 1985, November 25, 1985 through February 16, 1985, and February 24, 1986 through May 11, 1986. In addition, defendants' exhibit 5 reports: Lost time on Return to Work as pertains to his loss from injury. DATE OF INJURY 7-15-85 LOST TIME 7-20-85 RET. WORK 7-23-85 LOST TIME 8-28-85 RET. WORK 10-23-85 LOST TIME 10-28-85 RET. WORK 11-18-85 LOST TIME 11-25-85 RET. WORK 12-02-85 LOST TIME 12-04-85 RET. WORK 12-09-85 LOST TIME 12-12-85 RTW 02-17-86 LT 02-24-86 (Defendants' Exhibit 5) Medical evidence does not establish that claimant's condition has changed since May 11, 1986. No medical practitioner has suggested any further treatment for claimant. Claimant's condition, therefore, reached maximum medical improvement as of May 11, 1986, the time defendants stopped paying healing period benefits. While claimant is not entitled to any further healing period benefits subsequent to May 11, 1986, claimant is entitled to benefits for the three days of July 20, 21 and 22, and for the eight weeks from August 28, 1985 through and including October 22, 1985, pursuant to defendants' own exhibit. Iowa Code section 85.34(2) provides: Compensation for permanent partial disability shall begin at the termination of the healing period provided in subsection 1 of this section. In accordance with this section of the Code, permanent partial disability benefits shall commence May 12, 1986. The final issue presented for resolution is the liability of the Second Injury Fund. 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 loss of the first and second injuries. See Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983) and Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). Claimant has established the loss of use of his left eye as a result of a traumatic injury in August of 1984. Dr. Isaak has reported that claimant has been rendered legally blind in this eye which is amenable to surgical or glasses correction. Although Dr. Isaak did not provide an impairment rating for the eye, the undersigned would conclude that claimant's permanent impairment in this eye is 100 percent for which, had this been a work-related compensable injury, compensation would be payable for 140 weeks. Claimant has also established that the injury of July 15, 1985 caused a permanent partial disability within the meaning of Iowa Code section 85.34(2)(s). As the industrial commissioner recently held in Shank v. Mercy Hospital Medical Center, File No. 719627 (Appeal Decision filed August 28, 1989), that the loss of two scheduled members simultaneously is a loss from a single "accident" under Iowa Code section 85.34(2)(s), claimant meets the requirement to seek Second Injury Fund benefits. See also Johnson v. George A. Hormel & Company, File No. 782796, 792733 (Appeal Decision filed June 21, 1988). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 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 latter 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's medical condition prior to his work injury appears to have been excellent with no functional impairments. Claimant was able to perform his job and ample testimony was presented which would establish claimant's well-being. Claimant has suffered some actual loss of earnings as a result of this injury as well as the loss of earning capacity. Claimant is 27 years old and essentially at the beginning of his working career. His loss of future earnings from employment due to his disability is not as severe as would be the case for an older individual. See Walton v. B & H Tank Corporation, II Iowa Industrial Commissioner Report 46 (1981). Claimant's motivation is subject to some question. Claimant has come full circle with his medical treatment and yet he is still unemployed. This may or may not be due to his injury as claimant has failed to show his status is not due to economic conditions. A disability arising from the state of the economy is not compensable. See Webb v. Lovejoy Construction Company, II Iowa Industrial Commissioner Report 430 (1981). It would appear appropriate for some comment to be made at this time on defendants' surveillance activities in this case. Perhaps it would suffice only to say that neither claimant nor the investigator in this matter is completely credible. It is obvious the investigator wanted to successfully complete her assignment. It is equally obvious claimant wanted to impress a very beautiful young woman who was paying an inordinate amount of attention to him. The video tape and the testimony of Ms. Steil and claimant with reference to his capabilities, becomes a complete non-plus. Claimant is employable, he has demonstrated at least an average potential for vocational rehabilitation. Considering then all the elements of industrial disability enumerated above, it is found that claimant has sustained a permanent partial disability of 10 percent for industrial purposes which would ordinarily entitle him to 100 weeks of permanent partial disability benefits. Claimant clearly has failed to show he is an odd-lot employee as the record does not establish that the employment claimant is capable of performing is so limited in quality, quantity or dependability that a reasonably stable labor market for his services does not exist. See Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). 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 of the combined scheduled losses of the first and second injuries. See Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983) and Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). Pursuant to the court's decision in Neelans, the Second Injury Fund is responsible for the industrial disability less the total of the scheduled injuries. As the weekly benefits for claimant's industrial disability following the second injury does not exceed the combined weekly benefits for the scheduled member disabilities after the first and second injury, the Second Injury Fund is exonerated from liability in this case. Iowa Code section 85.34(2)(p) dictates that for the loss of an eye, weekly compensation is payable during 140 weeks. Claimant's permanent partial disability as determined by this decision entitles him to compensation payment for 100 weeks under Iowa Code section 85.34(2)(s). Therefore, the combined value of these two scheduled losses exceeds the value of claimant's industrial disability and, therefore, the Second Injury Fund is exonerated from liability in this case. 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 July 15, 1985. 2. The parties have stipulated and agreed that claimant's injury is the cause of both temporary and permanent disability. 3. Claimant has continually and consistently complained of problems with his wrists and hands and at time the elbows. 4. Claimant has failed to present any convincing evidence that his injury includes problems with his back. 5. The residuals of claimant's impairment do not extend beyond the upper extremities. 6. Claimant's disability is evaluated by the functional method and is a scheduled injury. 7. Claimant has sustained a permanent partial disability of 20 percent pursuant to Iowa Code section 85.34(2)(s). 8. Claimant has established a loss of use of his left eye as a result of a traumatic injury in August of 1984. 9. Claimant has shown he meets the requirements to seek Second Injury benefits. 10. Claimant's capacity to earn has been hampered as a result of the combined effects of his injury. 11. The present condition of claimant as a result of the combined permanent partial disability to the upper extremity and the loss of use of his left eye results in an industrial disability of 10 percent to the body as a whole. 12. Claimant has failed to show he is an odd-lot employee. 13. The weekly benefits for claimant's industrial disability following the second injury does not exceed the combined weekly benefits for the scheduled member disabilities. 14. Claimant's condition has not changed since May 11, 1986 and it is the fifth time that claimant reached maximal medical improvement. 15. It is at this time that defendants stopped paying healing period benefits. 16. While claimant is not entitled to any further healing period benefits subsequent to May 11, 1986, claimant is entitled to benefits for the three days of July 20, 21 and 22 and for the eight weeks from August 28, 1985 through and including October 22, 1985, pursuant to defendants' own exhibit. 17. Pursuant to Iowa Code section 85.34(2), permanent partial disability benefits commence May 12, 1986. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has failed to show that his injury of July 15, 1985 extends beyond the schedule. 2. Claimant has shown an entitlement to 100 weeks of permanent partial disability benefits for an injury to the upper extremities under Iowa Code section 85.34(2)(s). 3. Claimant has shown an industrial disability of 10 percent as a result of the combined effects of the first and second injuries. 4. Defendant Second Injury Fund is exonerated from liability in this case. 5. Claimant reached maximum medical improvement as of May 11, 1986 when defendants stopped paying healing period benefits. Claimant is not entitled to any further healing period benefits subsequent to May 11, 1986 but is entitled to benefits for the three days of July 20, 21 and 22 and for the eight weeks from August 25, 1985 through and including October 22, 1985. ORDER THEREFORE, it is ordered: Defendants Armour Food Company and Hartford Insurance Company shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits commencing May 12, 1986 at the stipulated rate of one hundred ninety-six and 57/100 dollars ($196.57) per week. Defendants Armour Food Company and Hartford Insurance Company shall pay unto claimant additional healing period benefits for the three days of July 20, 21 and 22 and for the eight weeks from August 28, 1985 through and including October 22, 1985 at the stipulated rate of one hundred ninety-six and 57/100 dollars ($196.57). Benefits that have accrued shall be paid in a lump sum together with statutory interest thereon, pursuant to Iowa Code section 85.30. Defendants shall receive full credit for all disability benefits previously paid. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendant Armour Foods and Hartford Insurance Company, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 19th day of January, 1990 DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Craig G. Ensign Attorney at Law 714 Central Ave P 0 Box 146 Northwood, IA 50459 Mr E. W. Wilcke Attorney at Law 826 1/2 Lake St P 0 Box 455 Spirit Lake, IA 51360 Mr Marvin E. Duckworth Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines, IA 50312 51803; 51803.1; 53200 Filed January 19, 1990 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT CORONADO, Claimant, vs. File No. 823415 ARMOUR FOOD COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE HARTFORD INSURANCE COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 51803; 51803.1 Claimant's injuries found to be to scheduled member as allegations that claimant injured his back found not to be credible. Claimant found to have a 20% permanent partial disability under 85.34(2)(s). 53200 Industrial disability did not exceed combined scheduled losses. Therefore, Second Injury Fund exonerated from liability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOAN M. WENZEL, f/k/a JOAN M. CODNER, Claimant, File No. 823423 VS. A R B I T R A T I 0 N WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Joan M. Wenzel, formerly known as Joan M. Codner, against Wilson Foods Corporation, her former employer. The case was heard and fully submitted at Cedar Rapids, Iowa on January 4, 1989. The record in the proceeding consists of testimony from Joan M. Wenzel and joint exhibits 1 through 14. ISSUES The issues presented by the parties for determination are whether claimant sustained injury which arose out of and in the course of her employment during the term of her employment with Wilson Foods Corporation. The injury is alleged to include both hands and claimant's left shoulder. The issues further include whether the alleged injury is a cause of any temporary or permanent disability. Claimant makes claim for permanent partial disability compensation, but makes no claim for temporary total disability or healing period compensation. The employer asserts defenses under Iowa Code section 85.26 and 85.23. The rate of compensation is also in issue. 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. Joan M. Wenzel is a 35-year-old woman who is a 1971 high school graduate. Wenzel was hired at Wilson Foods in 1979 where she worked in a number of different positions. On approximately March 23, 1980, she moved into the hog kill. Wenzel testified that constant pulling with her left hand bothered her left hand and shoulder. At times she worked as a floater. WENZEL V. WILSON FOODS CORPORATION Page 2 Wenzel stated that she began developing problems with her hands which made it difficult for her to hold a knife. Eventually, she was medically disqualified by the plant physician from all jobs which required use of a knife. Wenzel stated that she was then placed on jobs such as popping kidneys which bothered her hands and shoulders. She stated that they were so bad that her hands would lock shut. Wenzel stated that she last worked June 22, 1984. Wenzel testified that, after being laid off due to her lack of ability to perform her work, she went on ADC, lived with her mother for a time and then sought retraining through Kirkwood Community College. In approximately June, 1985, she returned to work at the pork plant, then under the operation of Farmstead Foods, for approximately a week, but all of her symptoms flared up so she quit and went back on ADC. During that term of unemployment, she met her current husband and then obtained a job as a federal meat inspector. Claimant stated that the inspector job involved use of a knife. She was unable to hold onto the knife due to the problems with her hands and she was eventually told that if she could not do the job, she had to quit. She did so after having held the position for approximately two years. Wenzel now holds a job as a department organizer at the Cedar Rapids Armstrong Department Store where she earns $4.10 per hour. Wenzel testified that any time she lifts anything, she has pain in her shoulders, down her back, and pain in her arms. She stated that her neck bothers. She complained of bilateral symptoms, but stated that the left is worse than the right. She stated that her left hand is weaker than the right, but the right locks more often. Wenzel stated that she regularly sees a chiropractor for problems with her neck. She feels that her work at Wilson Foods caused the problems of which she complained. Wenzel testified that, while the name of the employer changed from Wilson to Farmstead, they were actually the same company composed of the same people working in the same location. Claimant stated that the pain in her left shoulder never goes away and is intensified by activity. She stated that her hands always bother. Commencing in January, 1987, claimant was thoroughly examined and evaluated through the Iowa Musculoskeletal Center, P.C. EMG tests were conducted which were interpreted as being normal, although they did not rule out the possibility of mild carpal tunnel syndrome (exhibit 1, page 1). On February 20, 1987, a diagnosis was made as follows: WENZEL V. WILSON FOODS CORPORATION Page 3 Diffuse myalgias, arthralgias and other symptoms which are made worse by her work in a cold environment. Some of this sounds as if it may be a [sic] overuse type of phenomenon but there is a significant component of stress related symptoms here as well. In addition, we need to rule out the possibilities of thyroid dysfunction and other hormonal imbalances. I do not see any evidence of an inflammatory type of arthritis today. (Exhibit 1, page 4) Michael S. Brooks, M.D., the physician most involved in the evaluation, concluded that claimant did have an arthritic condition involving her lower back and spine, but that the condition is one which is genetically based and would not be the result of anything related to her work (exhibit 1, page 8). He did not find any evidence of significant carpal tunnel syndrome (exhibit 1, page 7). The record presented in this case does not contain any diagnosis of any physical ailment or abnormality which any physician has indicated was a result of claimant's employment at Wilson Foods Corporation. The record of this case does not contain any medically imposed impairment ratings or physical activity restrictions. The record contains evidence of various injuries which the claimant sustained at various times during her term of employment with Wilson Foods Corporation. The record certainly shows that she had ongoing problems with her hands and arms, as well as other problems. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that she received an injury which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). WENZEL V. WILSON FOODS CORPORATION Page 4 The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W.2d 128 (1967). It is clear that claimant injured her hands, arms,.and shoulders during the term of her employment with Wilson Foods Corporation. Exhibit 11 contains references to a number of different injuries on a number of different dates. Claimant does not, however, seek compensation for medical expenses.or for lost time from work. The claim made is limited to permanent partial disability compensation. Not every injury that occurs results in permanent disability. many injuries can occur but then resolve without any residual permanent impairment or disabilities. Claimant has testified to a sequence of events, activities and symptoms which can almost be considered "classic" for carpal tunnel syndrome or an overuse syndrome. The problem with her claim is that no physician has diagnosed her ailment. No physician has opined that she has carpal tunnel syndrome or an overuse syndrome. No physician has identified any abnormality or disability affecting claimant's hands, arms or shoulders. No physician has imposed a rating of permanent impairment or suggested activity restrictions with regard to claimant's hands, arms or shoulders. The evidence presented in this case is not that which is commonly seen of where one physician diagnoses a permanent disability that was proximately caused by employment while another physician either disputes the issue of causation or the existence of the condition. The medical evidence presented in this case does not diagnose any injury which has any connection to claimant's employment. While claimant's testimony is considered by the undersigned to be credible, the issues of diagnosis of the nature of the injury itself and causation for the injury are normally established through expert medical testimony. While it is true that under some circumstances lay testimony taken in connection with other well-established facts may support a finding of causations, that situation does not extend to making a medical diagnosis of claimant's condition. Accordingly, her claim must fail. WENZEL V. WILSON FOODS CORPORATION Page 5 FINDING OF FACT 1. Joan M. Wenzel has failed to introduce evidence which shows it to be.probable that the activities she performed as part of her employment duties with.Wilson Foods Corporation were a substantial factor in producing any permanent impairment or disability affecting her hands, arms or shoulders. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. While the record reflects that claimant sustained numerous injuries during the years of her employment with Wilson Foods Corporation, claimant has failed to prove, by a preponderance of the evidence that any of those injuries or any other activity she performed as part of the duties of her employment at Wilson Foods Corporation was a proximate cause of any permanent disability or impairment affecting her hands, arms or shoulders. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the employer pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 24th day of July, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dean Wenzel Attorney at Law 404 First Street SW Cedar Rapids, Iowa 52404 Mr. David A. Scott Attorney at Law 407 Grand Avenue P.O. Box 3046 Spencer, Iowa 51301 Mr. John M. Bickel Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 51108.50, 51402.30, 52209 Filed July 24, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOAN M. WENZEL, f/k/a JOAN M. CODNER, Claimant, File No. 823423 VS. A R B I T R A T I 0 N D E C I S I 0 N WILSON FOODS CORPORATION, Employer, Self-Insured, Defendant. 51108.50, 51402.30, 52209 The evidence lacked a medical diagnosis of claimant's condition, opinion on causation, and any impairment rating or activity restrictions. The claim for permanent partial disability was denied for lack of showing of arising out of or causal connection. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CURTIS EUGENE WEBB, Claimant, VS. File No. 823424 DUBUQUE PACKING COMPANY, A P P E A L Employer, D E C I S I 0 N and SENTRY INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a ruling granting defendants, motion to dismiss. Neither party has filed a brief on appeal. ISSUES As claimant has not filed a brief, no issues are specified on appeal. The appeal will be considered generally and without regard to specific issues. REVIEW OF THE EVIDENCE The ruling on the motion to dismiss adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the ruling on the motion to dismiss are appropriate to the issues and the evidence. ANALYSIS The analysis of the evidence in conjunction with the law is adopted. In addition, it is apparent that the reasons necessitating a dismissal do not result from any lack of diligence on the part of claimant's attorney. Claimant WEBB V. DUBUQUE PACKING COMPANY Page 2 has a duty to keep in touch with his attorney. His failure to do so does not justify continuing this case indefinitely until his whereabouts become known. FINDINGS OF FACT 1. Claimant failed to comply with an order of the deputy compelling discovery. 2. The deputy dismissed claimant's petition pursuant to Division of Industrial Services Rule 343-4.36. 3. Claimant's counsel has filed an affidavit stating the whereabouts of claimant are unknown. CONCLUSION OF LAW The deputy's order dismissing claimant's petition without prejudice was appropriate. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant's petition is dismissed without prejudice. That claimant shall pay the costs of this action. Signed and filed this 22nd of September, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 2906 Filed September 22, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER CURTIS EUGENE WEBB, Claimant, VS. File No. 823424 DUBUQUE PACKING COMPANY, A P P E A L Employer, D E C I S I 0 N and SENTRY INSURANCE, Insurance Carrier, Defendants. 2906. On appeal, the deputy's order dismissing claimant's petition was affirmed. Defendants had moved for dismissal after claimant failed to comply with an order compelling discovery. It was noted that the dismissal did not reflect on claimant's attorney, as claimant's present whereabouts were unknown.