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.