BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARIETTA COYLE,
 
         
 
              Claimant,
 
                                                  File Nos. 830411,
 
         vs.                                     733550 & 727272
 
         
 
         SHELLER-GLOBE CORPORATION,            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
 
         
 
         SECOND INJURY FUND OF IOWA,                OCT 30, 1989
 
         
 
         Defendants                        IOWA INDUSTRIAL COMMISSIONER
 
                                    
 
                                    
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marietta 
 
         Coyle, claimant, against Sheller-Globe Corporation, employer 
 
         (hereinafter referred to as Sheller), and the Second Injury Fund, 
 
         a special fund created under the statutes of Iowa, defendants, 
 
         for worker's compensation benefits as a result of alleged 
 
         injuries on February 5, 1983, May 2, 1983 and July 9, 1985.  On 
 
         May 2, 1989, 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 and written exhibits were received during the 
 
         hearing from the parties.  The exhibits offered into the evidence 
 
         are listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
              
 
              1.  On February 5, 1983 and May 2, 1983, claimant received 
 
         injuries which arose out of and in the course of her employment 
 
         with Sheller.  Defendant Sheller and claimant agreed that 
 
         claimant also received an injury on July 9, 1985, which arose out 
 
         of and in the course of her employment at Sheller.
 
              
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from June 30, 1986 through May 26, 1987, 
 
         as a result of the May 2, 1983 and July 9, 1985 injuries and 
 
         defendants agreed that she was not working during this time.
 
         
 
              3.  Claimant is entitled to weekly benefits for a 15 percent 
 
         permanent partial disability to the left leg as a result of the 
 
         February 5, 1983 injury and to weekly benefits, the amount of 
 
         which remains disputed, for permanent disability to the left leg 
 
         as a result of the May 2, 1983 injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              4.  If permanent disability benefits are awarded herein they 
 
         shall begin as of February 6, 1984 for the May 2, 1983 injury.
 
              
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits shall be $213.83 for the February 5, 
 
         1983 injury and $241.98 for the May 2, 1983 injury.  Defendant 
 
         Sheller and claimant agreed to a rate of $241.98 for benefits 
 
         awarded as a result of the July 9, 1985 injury.
 
              
 
              6. The medical bills submitted by claimant at hearing were 
 
         fair and reasonable but the issue of their causal connection to 
 
         the work injuries remain at issue.
 
         
 
              After submission of the prehearing reports in these 
 
         consolidated cases, claimant moved to dismiss the claim with 
 
         reference to the February 5, 1983 injury as defendant Sheller had 
 
         paid all of the benefits to which claimant is entitled.  This 
 
         motion was granted.
 
              
 
              Also, claimant asserted that the second injury fund was a 
 
         party to the claim concerning the July 9, 1985 injury by virtue 
 
         of the consolidation of the three claims prior to hearing.  At no 
 
         time did claimant serve a notice of claim upon the second injury 
 
         fund for the July 9, 1985 injury, but did serve notice of a 
 
         second injury claim for the May 2, 1983 injury.  The second 
 
         injury fund objected to their inclusion in the July 9, 1985 claim 
 
         at hearing and indicated that it had not prepared to defend 
 
         against such a claim.
 
              
 
              The objection by the second injury fund must be sustained. 
 
         Although this is an administrative proceeding and the technical 
 
         rules of pleading do not apply, under constitutional due process 
 
         and the statutes of this state, claimant must serve original 
 
         notice upon a defendant against whom a claim is asserted.  The 
 
         Second Injury Fund simply is not a party to the claim in case No. 
 
         830411.  Therefore, the second injury fund liability will be 
 
         assessed with reference to only the alleged second injury on May 
 
         2, 1983.  It is clear that claimant may still pursue a future 
 
         claim against the fund for the July 9, 1985 injury should she 
 
         desire to do so.
 
              
 
              Also, claimant raised at hearing an issue of noncompliance 
 
         with the order of December 16, 1987 directing defendant 
 
         Sheller-Globe to pay the reasonable expenses of a independent 
 
         examination under Iowa Code section 85.39.  Such an issue was not 
 
         raised as an issue at the time of the prehearing conference and 
 
         not listed as a hearing issue in the assignment order.  Although 
 
         normally such issues raised for the first time at hearing are not 
 
         considered, this agency may raise on its own motion any 
 
         noncompliance with its own orders.  Therefore, defendant will be 
 
         ordered to pay the entire amount of the independent examination 
 
         as defendant made no showing prior to the hearing or at any time 
 
         during the hearing that any portion of the charges were 
 
         unreasonable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finally, pursuant to post-hearing motions, a ruling was made 
 
         enlarging the issues at the hearing to include a dispute with 
 
         reference to the taking of a credit by defendant Sheller under 
 
         Iowa Code section 85.38(2).  Consequently, the undersigned 
 
         considered arguments on this issue but the record was closed at 
 
         the end of the hearing and the parties have already stipulated in 
 
         the prehearing report to the extent of this credit.
 
         
 
                                      ISSUES
 
         
 
              According to the prehearing report the parties submitted the 
 
         following issues for determination in this proceeding:
 
         
 
               I.  The extent of claimant's entitlement to weekly 
 
         benefits for disability; and,
 
         
 
              II.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant was 65 years of age at the time of hearing.  She 
 
         testified that she worked for Sheller for approximately 14 years 
 
         before her early disability retirement at age 62 on January 1, 
 
         1987.  The stated reason claimant gave for the disability 
 
         retirement in the retirement papers was only the words "knee 
 
         injury."  A statement from Robert C. Murphy, M.D., was submitted 
 
         to justify this early retirement.  According to Dr. Murphy, 
 
         claimant was totally disabled from work due to a left knee 
 
         injury. Although claimant has received more than one left knee 
 
         injury, the doctor did not specify the injury to which he was 
 
         referring. Claimant's past work for Sheller consisted of general 
 
         labor work in the trimming on molds, inspection, repairing and 
 
         "plugging strips."  Claimant said that all of these jobs were 
 
         repetitive, unskilled work and easy to learn.
 
                    
 
              Claimant bases her consolidated claims herein on three 
 
         work injuries.  In February 1983, claimant tripped on some 
 
         paper on the floor in the factory where she was working and 
 
         fell injuring her left knee.  Claimant was off work 
 
         approximately eight weeks after this injury and received 
 
         medical treatment for knee pain. Claimant then returned to the 
 
         same work as before the injury, but testified that she 
 
         continued to have left knee problems requiring her to put more 
 
         stress on her right knee.  On May 2, 1983, while attempting to 
 
         rise up from a sitting position at Sheller, claimant felt 
 
         something tear in her right knee and underwent another period 
 
         of treatment and therapy for knee pain.  Soon after the second 
 
         injury, claimant began treating with a board certified 
 
         orthopedic surgeon, James A. Gwaltney, M.D.  Dr. Gwaltney 
 
         diagnosed that claimant's left knee had a small "tab" tear in 
 
         the meniscus and that the right knee also had a larger "bucket 
 
         handle" tear of the meniscus.  Dr. Gwaltney surgically repaired 
 
         the more serious right knee tear in June 1983 and later 
 
         surgically repaired the left knee in August of 1983.  In both 
 
         of these surgeries, Dr. Gwaltney only removed a portion of the 
 
         damaged meniscus.  After a period of recovery, claimant was 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         released to return to work in February 1984.  Dr. Gwaltney's 
 
         office notes state as follows with reference to work 
 
         restrictions upon this return to work:  "...it would be 
 
         advisable for her to be able to sit part time [sic]."  Dr. 
 
         Gwaltney opined that claimant had suffered a 15 percent 
 
         permanent partial impairment to each of her knees as a result 
 
         of the two work injuries.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                    
 
              After her release from work, claimant returned to~work as a 
 
         trimmer.  Claimant testified that, "for a while she had problems 
 
         with her legs" and that standing bother her left leg.  She 
 
         subsequently changed jobs for higher pay and began a repair job 
 
         which she said required less walking.  After performing this new 
 
         job for a few months, claimant twisted her right knee on July 9, 
 
         1985, while throwing a bundle onto a cart.  Claimant then 
 
         underwent a long period of chronic knee pain and was evaluated by 
 
         several physicians other than Dr. Gwaltney.  In August 1985, 
 
         Michael Durkee, M.D., reported that claimant probably suffered 
 
         another meniscus tear in the right knee and recommended that she 
 
         return to Dr. Gwaltney.  However, defendant Sheller referred 
 
         claimant to Rouben Mirbegian, M.D., who agreed with the 
 
         recommendations of Dr. Durkee.  In December 1985, defendant 
 
         Sheller referred claimant to Peter D. Wirtz, M.D., another 
 
         orthopedic surgeon.  From his examination and testing of 
 
         claimant, Dr. Wirtz felt that claimant's problems were due to 
 
         degenerative joint disease and deterioration of the patellar 
 
         surface.  He felt that claimant had a 17 percent permanent 
 
         partial impairment to the right knee.  Dr. Wirtz released 
 
         claimant to return to work on January 21, 1986.  During this 
 
         period of moving from doctor to doctor, claimant decided to take 
 
         early retirement.  Claimant officially retired January 1987 but 
 
         was retroactive as of October 1986.
 
                    
 
              Claimant eventually was seen by Dr. Gwaltney after her 
 
         retirement when her problems persisted.  From his examination and 
 
         testing of claimant, Dr. Gwaltney diagnosed that claimant was 
 
         actually suffering from another meniscus tear in the left knee 
 
         and the damaged meniscus was then surgically removed.  Claimant 
 
         then improved dramatically according to Dr. Gwaltney and Dr. 
 
         Gwaltney released claimant following recovery from surgery in 
 
         July of 1987. The doctor opined that claimant suffered an 
 
         additional five percent permanent partial impairment from the 
 
         second injury to the left knee.  He stated that he expected 
 
         future onset of traumatic arthritis which was taken into 
 
         consideration in this rating.  The only work activity restriction 
 
         noted by Dr. Gwaltney after his treatment of the second injury to 
 
         the left knee was that claimant should avoid full knee bends.  In 
 
         November 1986 claimant was evaluated by Thomas Summers, M.D., who 
 
         opined that claimant has a 25 to 35 percent permanent partial 
 
         impairment to the right knee and a 10 percent permanent partial 
 
         impairment of the left knee as a result of the work injuries.  He 
 
         recommended that claimant avoid prolong standing, walking and 
 
         climbing of stairs.
 
                    
 
              Claimant testified that at the present time she is able to 
 
         walk without a cane but only with a severe limp and that her left 
 
         leg "catches once in a while."  She states that her legs get 
 
         tired after standing and that she needs help getting up and down 
 
         from a sitting position.  She states that she cannot walk more 
 
         than a block and a half and that she had considerable trouble 
 
         climbing stairs.  She states that she cannot stoop.  Normally she 
 
         uses a cane for support.  She stated that she has problems with 
 
         home chores and is assisted by neighbors and friends.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant had a prior neck injury and a heart attack in 1986. 
 
         Claimant testified that she was able to return to work after 
 
         these incidents and experienced no problems following treatment 
 
         of these conditions.  Claimant has an eleventh grade education 
 
         and expressed problems during testimony with reading, spelling 
 
         and history while she was in school.  She states that today she 
 
         has considerable difficulty reading and writing and pronouncing 
 
         words but she is able to read a newspaper.  Claimant has made no 
 
         attempt to return to the labor force since her release from the 
 
         care of Dr. Gwaltney following her early retirement.
 
                    
 
                           APPLICABLE LAW AND ANALYSIS
 
                    
 
               I.  With reference to claimant's claims against defendant 
 
         Sheller, claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  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, 997 (Iowa 1983). 
 
         when the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to 'loss' of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              In the case sub judice, from the evidence submitted the 
 
         views of the treating physician, Dr. Gwaltney, are the most 
 
         convincing due to his greater clinical involvement with 
 
         claimant's knee problems.  Therefore, it is found as a matter of 
 
         fact that the work injury of May 2, 1983, is a cause of a 15 
 
         percent loss of use to the right leg.  Based upon such a finding, 
 
         claimant is entitled as a matter of law to 33 weeks of permanent 
 
         partial disability benefits under Iowa Code section 85.34(2)(o) 
 
         which is 15 percent of 220 weeks, the maximum allowable for an 
 
         injury to the leg in that subsection.  It is also found that 
 
         claimant suffered an additional five percent permanent partial 
 
         impairment due to the July 9, 1985 injury entitling claimant to 
 
         an additional 11 weeks of permanent partial disability benefits.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until claimant returns to work; until claimant is medically 
 
         capable of returning to substantially similar work to the work 
 
         she was performing at the time of the injury; or, until it is 
 
         indicated that significant improvement from the injury is not 
 
         anticipated, whichever occurs first.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Claimant is seeking additional healing period benefits from 
 
         the May 2, 1983 injury from June 30, 1986 through May 26, 1987. 
 
         There is no causal connection opinion from Dr. Gwaltney that the 
 
         May 2, 1983 injury is causally related to the treatment claimant 
 
         was receiving following the injury on July 9, 1985.  The 
 
         treatment was for a second tear to the right knee meniscus.  
 
         However, it is clear from the opinions of Dr. Gwaltney that this 
 
         period of disability is causally connected to the July 9, 1985 
 
         injury and claimant will be awarded healing period benefits until 
 
         Dr. Gwaltney felt that claimant had reached maximum healing and 
 
         rated her permanent partial impairment on May 26, 1987.  The 
 
         record, however, showed that claimant was off work from the date 
 
         of injury until that time.  Although claimant did not receive 
 
         beneficial treatment until her return to Dr. Gwaltney, this delay 
 
         in treatment was the sole fault of defendant Sheller for not 
 
         complying with the recommendations of Drs. Durkee and Mirbegian 
 
         with reference to claimant's return to Dr. Gwaltney.  Defendant 
 
         chose instead to refer claimant to Dr. Wirtz which only served to 
 
         further delay treatment due to a misdiagnosis.  Therefore, 
 
         claimant is entitled to healing period benefits from the date of 
 
         injury, July 9, 1985, until May 26, 1987, a total of 98 1/7 
 
         weeks. The fact that claimant took early retirement is relevant 
 
         to this determination only to the extent of the credit issue 
 
         under Iowa Code section 85.38(2).
 
              
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         payment of reasonable medical expenses incurred for treatment of 
 
         a work injury from the employer.  From the list of expenses 
 
         requested in the prehearing report, it is apparent that these 
 
         expenses were causally connected to the July 9, 1985 injury and 
 
         will be awarded.  However, mileage could not be awarded in a 
 
         specific amount as there was no evidence from claimant as to the 
 
         distance from her house to Dr. Gwaltney's office.
 
              
 
              II.  Claimant also seeks additional disability benefits from 
 
         the second injury fund under Iowa Code sections 85.65 through 
 
         85.69.  As stated previously, this claim is limited, at least at 
 
         this time, to the second injury to claimant's right leg on May 2, 
 
         1983.  The second injury fund was created to compensate an 
 
         injured worker for a permanent industrial disability resulting 
 
         from the combined effect of two separate injuries to certain 
 
         scheduled members.  The purpose of such a scheme of compensation 
 
         was to encourage employers to hire or retain handicapped workers.  
 
         See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978).  
 
         There are three requirements under the statute to invoke second 
 
         injury fund liability.  First, there must be a permanent loss of 
 
         use of one hand, arm, foot, leg or eye.  Secondly, there must be 
 
         a permanent loss of use to another such member or organ through a 
 
         compensable subsequent injury.  Third, there must be permanent 
 
         industrial disability to the body as a whole arising from both 
 
         the first and second injuries which is greater in terms of 
 
         relative weeks of compensation than the sum of the scheduled 
 
         allowances for those injuries.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              A disability to the body as a whole or an "industrial 
 
         disability" is a loss of earning capacity resulting from the work 
 
         injury.  Diederich v. Tri-City Railway Co., 219 Iowa 586, 593, 
 
         258 N.W. 899 (1935).  A physical impairment or restriction on 
 
         work activity may or may not result in such a loss of earning 
 
         capacity. The extent to which a work injury and a resulting 
 
         medical condition has resulted in an industrial disability is 
 
         determined from examination of several factors.  These factors 
 
         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.  Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
                     
 
              As stated previously, the industrial disability assessment 
 
         against the second injury fund and this decision will be limited 
 
         to the second injury occurring on May 2, 198.3.  Claimant argues 
 
         in her brief that this analysis should also consider the 
 
         disability resulting from the July 9, 1985 injury even if the 
 
         Second Injury Fund is not a party to the claim filed as a result 
 
         of that injury because the May 2, 1983 injury left claimant's 
 
         right knee in a weaken condition which then precipitated the 
 
         later July g, 1985 injury.  Claimant would be correct if there 
 
         was a record to establish such a causal connection between the 
 
         May 2, 1983 and July 9, 1985 injuries.  After careful review of 
 
         all the testimony and written evidence, and especially the expert 
 
         views of the primary treating physician, Dr. Gwaltney, no such 
 
         causal connection could be found.  The only physician to state 
 
         that the July 9, 1985 injury was a temporary aggravation of her 
 
         prior existing condition was Dr. Wirtz.  However, Dr. Wirtz's 
 
         opinions were rejected in this decision because of his lack of 
 
         clinical experience and incorrect diagnoses of claimant's right 
 
         knee problems.
 
                     
 
              Claimant's medical condition before the first injury on 
 
         February 5, 1983, was excellent.  She had no ascertainable 
 
         functional impairments or disability.  She was able to fully 
 
         perform all of the duties of her primarily manual labor position 
 
         at Sheller.  After the second injury claimant was disabled as a 
 
         result of a 15 percent permanent partial disability to both her 
 
         right and left legs and according to Dr. Gwaltney, she was 
 
         restricted to jobs in which there was part-time sitting.  
 
         However, claimant was able to fully return to work and even bid 
 
         on and obtained a promotion to another job with more pay 
 
         following the second injury.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Apart from her lost earnings during her healing period which 
 
         was compensated by healing period benefits, claimant suffered no 
 
         significant permanent loss in actual earnings as a result of the 
 
         May 2, 1983 second injury.  The major loss of earning capacity 
 
         appears to have resulted from her early retirement following the 
 
         injury of July 9, 1985.  Again, as stated before, there was no 
 
         apparent causal connection between the May 2, 1983 and July 9, 
 
         1985 injuries.
 
         
 
              Claimant was approximately 59 years of age at the time of 
 
         the second injury and was nearing the end of her working career.  
 
         Her loss of future earnings from employment due to disability is 
 
         not as severe as would be the case for a younger individual.  See 
 
         Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report, Iowa 
 
         Industrial Commissioner 34 (Appeal Decision 1979).  However, the 
 
         record does not show that claimant had retirement plans before 
 
         the May 2, 1983 second injury.
 
         
 
              Claimant has limited formal education and appears to have 
 
         reading and writing difficulties.  She likewise appears to have 
 
         little potential for vocational rehabilitation given her age, 
 
         lack of formal education and limited work experience.  However, 
 
         vocational rehabilitation was unnecessary as claimant returned to 
 
         work following the May 2, 1983 injury.  Claimant's employment 
 
         appeared suitable for her disability at that time.
 
              
 
              After examination of all the factors, it is found as a 
 
         matter of fact that she has suffered a 10 percent loss of earning 
 
         capacity as a result of the second injury on May 2, 1983.  Based 
 
         upon such a finding, claimant is entitled as a matter of law to 
 
         50 weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 10 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection. Claimant had a prior disability to the left leg of 15 
 
         percent and incurred a permanent partial disability to the right 
 
         leg from the second injury of 15 percent.  Both of these injuries 
 
         entitle claimant to a total of 66 weeks of permanent partial 
 
         disability benefits from the employer.  As the industrial 
 
         disability due to the combined effects of the prior loss and 
 
         secondary loss is less than the value of the prior and secondary 
 
         losses combined, then the second injury fund has no liability as 
 
         a result of the second injury and is therefore exonerated.
 
         
 
              According to the prehearing report, Sheller paid claimant 
 
         for a 20 percent permanent partial disability to the right knee 
 
         as a result of the May 2, 1983 injury but nothing for the July 9, 
 
         1985 injury.  Aside from the fact that a credit issue with 
 
         reference to overpayment of permanent partial disability benefits 
 
         was not listed as a hearing issue at the time of hearing, there 
 
         is no statutory or other authority for defendant Sheller to take 
 
         a credit for this overpayment against the award for the July 9, 
 
         1985 injury.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1.  Claimant was a credible witness due to her appearance 
 
         while testifying.
 
              
 
              2.  On February 5, 1983, claimant suffered an injury to the 
 
         left knee consisting of a meniscus tear which arose out of and in 
 
         the course of her employment with Sheller.  This injury was a 
 
         cause of a period of total disability from work for a few weeks, 
 
         but claimant returned to work to the same job she was performing 
 
         before the injury.  Claimant suffered a 15 percent permanent 
 
         partial disability to the left leg as a result of this meniscus 
 
         tear and the surgical removal of the damaged meniscus.  Claimant 
 
         suffers lingering pain and loss of use from this injury and 
 
         treatment.
 
              
 
              3.  On May 2, 1983, claimant suffered an injury to the right 
 
         knee consisting of a "bucket handle" meniscus tear which arose 
 
         out of and in the course of her employment with Sheller.
 
              
 
              4.  The work injury of May 2, 1983, was a cause of a period 
 
         of total disability from work for several weeks after which 
 
         claimant returned to work.  During this time, claimant received 
 
         extensive treatment of the work injury consisting of limitations 
 
         on activity, medications for pain and inflammation, supervised 
 
         physical therapy and surgery to remove the torn meniscus.
 
              
 
              5.  The work injury of May 2, 1983, is a cause of a 15 
 
         percent permanent partial impairment to the right leg and of 
 
         permanent restrictions upon claimant's physical activity 
 
         consisting of work involving part-time sitting.
 
              
 
              6.  On July 9, 1985, claimant suffered an injury to the 
 
         right leg consisting of a tear in the remaining remnant of 
 
         meniscus in the right knee which arose out of and in the course 
 
         of her employment at Sheller.  Claimant has failed to show a 
 
         causal connection between this injury and the injury of May 2, 
 
         1983.
 
              
 
              7.  The work injury of July 9, 1985, was a cause of a period 
 
         of total disability from work beginning on the date of injury of 
 
         July 9, 1985 through May 26, 1987, at which time claimant reached 
 
         maximum healing.  During this time, claimant received treatment 
 
         of the work injury consisting of limitations on activity, 
 
         medications for pain and inflammation, supervised physical 
 
         therapy and surgery to remove the torn meniscus.  There was a 
 
         delay in treatment of claimant due to improper case management of 
 
         claimant's treatment by defendant Sheller.  Between July 9, 1985 
 
         and June 30, 1986, claimant could have benefited from suitable 
 
         and proper treatment of her work injury from her prior physician, 
 
         Dr. Gwaltney, who had previously surgically repaired both of her 
 
         knees.  However, Sheller instead referred claimant to other 
 
         physicians who ultimately misdiagnosed her problems.  Claimant 
 
         dramatically improved following treatment by Dr. Gwaltney in the 
 
         latter part of 1986 and the early part of 1987.
 
         
 
              8.  The work injury of July 9, 1985, is a cause of an 
 
         additional five percent permanent partial impairment to the right 
 
         leg and of a permanent restriction upon claimant's physical 
 
         activity consisting of no activity requiring full knee bends.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              9.  The work injury of February 5, 1983 and resulting 
 
         disability and the work injury of May 2, 1983 and resulting 
 
         disability together are a cause of a 10 percent loss of earning 
 
         capacity.  Claimant was 59 years of age at the time of the second 
 
         injury on May 2, 1983 and had an eleventh grade education. 
 
         Claimant has limited reading and writing skills but is able to 
 
         read a newspaper.  Claimant had no ascertainable loss of earning 
 
         capacity prior to February 5, 1983.  Claimant's treating 
 
         physician recommended that she return to work following the 
 
         second injury to a job which involved part-time sitting.  This 
 
         activity restriction did not prevent claimant to return to the 
 
         job she was performing at the time of the second injury.  
 
         Claimant suffered no loss of earnings other than during her 
 
         healing period after the second injury of May 2, 1983.  Claimant, 
 
         in fact, bid on and obtained a job following a return to work 
 
         which resulted in higher earnings. Claimant had low potential for 
 
         vocational rehabilitation after the second injury of May 2, 1983, 
 
         but such retraining was not necessary because she was able to 
 
         return to work following the injury.
 
         
 
              10.  The medical expenses listed in the prehearing report 
 
         are fair and reasonable and were incurred by claimant for 
 
         reasonable and necessary treatment of her work injury of July 9, 
 
         1985.
 
              
 
              11.  Claimant was paid in excess of her entitlement to 
 
         permanent partial disability benefits from defendant Sheller as a 
 
         result of the May 2, 1983 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         following benefits from defendant Sheller:
 
              
 
              1.  Ninety-eight and one-seventh (98 1/7) weeks of healing 
 
         period benefits as the result of the work injury of July 9, 1985.
 
              
 
              2.  Eleven (11) weeks of permanent partial disability 
 
         benefits as a result of the July 9, 1985 injury.
 
                   
 
              3.  The sum of seven hundred sixty-four and 43/100 dollars 
 
         ($764.43) in medical benefits plus an unspecified amount of 
 
         medical mileage expenses as a result of the July 9, 1985 injury.
 
              
 
              Claimant has failed to establish a claim for additional 
 
         benefits from the second injury fund as a result of the May 2, 
 
         1983 second injury.
 
              
 
                                      ORDER
 
              
 
              1.  Defendant Sheller shall pay to claimant eleven (11) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred forty-one and 98/100 dollars ($241.98) from May 27, 1987.
 
                   
 

 
                   
 
 
 
 
 
 
 
 
 
 
 
              2.  Defendant Sheller shall pay to claimant healing period 
 
         benefits from July 9, 1985 through February 26, 1987 at the rate 
 
         of two hundred forty-one and 98/100 dollars ($241.98) per week.
 
              
 
              3.  Defendant Sheller shall pay the medical expenses listed 
 
         in the prehearing report including medical mileage.  Claimant 
 
         shall be reimbursed for any of those expenses paid by her. 
 
         Otherwise, defendants are ordered to pay the provider directly 
 
         along with any lawful late payment penalties imposed by the 
 
         provider on the account.
 
                   
 
              4.  Defendant Sheller shall receive credit for previous 
 
         payment of benefits under a nonoccupational group insurance plan 
 
         under Iowa Code section 85.38(2) as stipulated in the prehearing 
 
         report.
 
              
 
              5.  Defendant Sheller shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
              
 
              6.  Defendant Sheller shall pay the costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.3.
 
              
 
              7.  Defendant Sheller shall file activity reports on the 
 
         payment of this award as requested by this agency pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
                   
 
              8.  Defendant Sheller is also ordered to pay the entire 
 
         amount of the independent examination of claimant by Thomas B. 
 
         Summers, M.D., as authorized and ordered on December 16, 1987, 
 
         together with interest from that date.
 
              
 
              9.  Claimant shall take nothing from the second injury fund 
 
         at this time.
 
         
 
              Signed and filed this 30th day of October, 1989.
 
              
 
              
 
              
 
              
 
              
 
              
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines, IA  50309
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St
 
         Suite 16
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, IA  50312
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, IA  50319
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
                                            5-1802; 5-1803; 5-3200
 
                                            Filed October 30, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARIETTA COYLE,
 
         
 
              Claimant,
 
                                                 File Nos. 830411,
 
         vs.                                    733550 & 727272
 
         
 
         SHELLER-GLOBE CORPORATION,           A R B I T R A T I O N
 
         
 
              Employer,                         D E C I S I O N
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
              
 
              Defendants.
 
              
 
              
 
              
 
         5-1802; 5-1803; 5-3200 - Nonprecedential
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN D. SAMMON,
 
         
 
              Claimant,                             File No. 830432
 
                                                 
 
         vs.                                     A R B I T R A T I O N
 
                                                 
 
         DEPT. OF HUMAN SERVICES,                   D E C I S I O N
 
              
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                    JUL 07 1989
 
         STATE OF IOWA
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marvin D. 
 
         Sammon, claimant, against Department of Human Services, 
 
         administrative agency of the State of Iowa, defendant, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on December 27, 1984.  On November 4, 1988, 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 the 
 
         following witnesses:  Mary Laughlin and Jack Dodds.  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.  On December 27, 1984, claimant received an injury which 
 
         arose out of and in the course of his employment with defendant.
 
         
 
              2.  Claimant is entitled to healing period benefits from 
 
         December 31, 1984 through February 28, 1985 and from February 24, 
 
         1986 through June 3, 1986.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4.  If permanent disability benefits are awarded, they shall 
 
         begin as of September 5, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $436.21.
 
         
 
              6.  Defendant voluntarily paid claimant all healing period 
 
         benefits and weekly benefits for a 15 percent permanent partial 
 
         disability to the body as a whole prior to hearing.
 
         
 
              Subsequent to hearing, the parties stipulated that the 
 
         deposition of John Bakody, M.D., was "inadvertently left out of 
 
         evidence" and the parties agreed to stipulate this deposition 
 
         into evidence prior to the decision.  However, the undersigned 
 
         cannot receive this deposition into the evidence.  Division of 
 
         Industrial Services Rule 343-4.31 states as follows:  No evidence 
 
         shall be taken after the hearing."  This rule does not provide 
 
         the undersigned with any discretion.  It likewise does not allow 
 
         the parties to stipulate otherwise.
 
         
 
                                      ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding was the extent of claimant's entitlement to 
 
         weekly benefits for permanent disability.
 
         
 
                                STATEMENT OF FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement should be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he has worked for the State of Iowa 
 
         since January 1958, and continues to do so at the present time. 
 
         Claimant is currently chief of the Bureau of Program Evaluations 
 
         within the Division of Management and Budget of the Department of 
 
         Human Services.  This position is a management position and 
 
         claimant supervises five employees.  Although the organizational 
 
         structure of his work area of responsibility was changed in a 
 
         general government reorganization in 1985, his current position 
 
         is essentially the same job which existed prior to the work 
 
         injury. Claimant's work involves the study of, and recommending 
 
         improvements for, local service offices.  Claimant admitted at 
 
         hearing that he has not suffered a loss of salary from the work 
 
         injury.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that he suffered severe back pain after riding 
 
         an elevator in a state building.  Due to an apparent malfunction, 
 
         the elevator dropped approximately 3 feet after claimant entered 
 
         the elevator.  Claimant was injured again after an obese 
 
         gentleman fell on him when the elevator again dropped a few feet 
 
         at the next floor.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was initially treated for severe back pain for a 
 
         few weeks by a family physician with physical therapy and 
 
         medication. When this treatment failed to improve claimant's 
 
         condition, he was referred in February 1985, to William R. 
 
         Boulden, M.D., an orthopedic surgeon.  After testing by Dr. 
 
         Boulden revealed a herniated disc in claimant's low back, the 
 
         doctor treated claimant successfully for a few months with only 
 
         conservative treatment modalities including use of an electrical 
 
         nerve stimulation device called a TENS unit along with steroid 
 
         injections.  However, claimant became worse after returning to 
 
         work and Dr. Boulden performed a surgical "diskectomy with 
 
         neuroforaminotomy" in March 1986.  Claimant's leg pain and 
 
         numbness improved after this surgery and claimant was returned to 
 
         work on June 4, 1986.  Dr. Boulden, at that time, opined that due 
 
         to the surgery and loss of range of motion, claimant suffered a 
 
         15 percent permanent partial impairment to the body as a whole as 
 
         a result of the December 1984 injury.
 
         
 
              After returning to work, claimant's symptoms improved and in 
 
         July 1986, Dr. Bolden released him from further follow-up care. 
 
         However, since September 1986, claimant has suffered recurrent 
 
         aggravations of his back and leg pain and numbness following 
 
         periods of prolonged sitting while driving or riding in an 
 
         automobile; while traveling by airplane during business trips; 
 
         and, while attending meetings during work.  Claimant and one of 
 
         his employees, Mary Laughlin, testified that he now attempts to 
 
         restrict such activities whenever possible.  He leaves meetings 
 
         early to go walking, adjusts his schedule to hold only morning 
 
         meetings and frequently leaves early from work.  Both claimant 
 
         and Laughlin testified that claimant had no back problems before 
 
         December 1986.  Claimant testified that many years ago he 
 
         suffered a back injury which only caused a temporary inability to 
 
         work for a couple of weeks.  Claimant's supervisor, Jack Dodds, 
 
         testified that claimant did not lift in his job and was free to 
 
         move about but admits that claimant must travel as a requirement 
 
         of his position.  He states that he has not made any special 
 
         accommodations for claimant upon his return to work and does not 
 
         feel claimant has excessively used his leave entitlements.  Dodds 
 
         also stated that claimant continues his above average work 
 
         performance which existed prior to the work injury.  Finally, 
 
         Dodds testified that he could see no reason why claimant could 
 
         not continue working for the State for the foreseeable future.
 
         
 
              Claimant has been evaluated by two neurosurgeons.  After his 
 
         examination of claimant in November 1986, John T. Bakody, M.D., 
 
         opines that claimant suffers from a lumbar disc syndrome and 
 
         recommended further testing.  Dr. Bakody opines that claimant 
 
         suffered a 20 percent permanent partial impairment from the work 
 
         injury.  He said that his rating is based upon use of the 
 
         orthopedic surgeon's manual for rating physical impairments.  
 
         David Boarini, M.D., examined claimant in December 1986, and 
 
         opines that claimant has suffered an 8 to 10 percent permanent 
 
         partial impairment to the body as a whole using AMA Guidelines.  
 
         In May 1987, Dr. Boulden reports that claimant suffered at that 
 
         time from "perineural fibrosis irritation" which the doctor 
 
         states occurs in all of his surgical patients.  However, he 
 
         states that not all of the patients experience symptoms.  Dr. 
 
         Boulden had no explanation as to why some patients incur symptoms 
 
         and others do not.  Dr. Boulden states that this condition is not 
 
         correctable by surgery and treatment is limited to steroid 
 
         injections, home exercises and restrictions upon claimant's 
 
         sitting and other activities that would aggravate the back.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that he began his employment with the 
 
         state as a social worker.  At the time of hearing he was 57 years 
 
         of age and had a baccalaureate degree in sociology.  At the time 
 
         of the hearing, claimant earned an annual salary of $40,976.00. 
 
         Despite his age, claimant states he has no retirement plans and 
 
         intends on working for at least another 18 years to support his 
 
         two-year-old son.  Claimant states that his back and leg problems 
 
         continue at the present time and are especially aggravated by 
 
         prolonged sitting.  He frequently walks to relieve his pain.  He 
 
         states that he must sleep on the floor at home at night.  He 
 
         states he can only bend 45 degrees and then only if he is not 
 
         lifting anything.  Claimant is not currently under active 
 
         treatment and is not currently taking medication,other than 
 
         aspirin.  He continues to use his TENS unit.  He has no plans on 
 
         leaving state employment.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors 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.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
         Decision, February 28, 1985).
 
         
 
              Claimant's medical condition before the work injury in this 
 
         case was excellent and he had no functional impairments or 
 
         ascertainable disabilities.  Claimant was able to fully perform 
 
         physical tasks such as heavy lifting, repetitive lifting, 
 
         bending, twisting, stooping, along with prolonged sitting.  As a 
 
         result of painful injuries, the functioning of his whole body has 
 
         been affected.  He said it took several months to heal.  Claimant 
 
         has experienced almost continuing pain in varying degrees since 
 
         the date of injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              All of the physicians who have testified in this case have 
 
         given claimant a significant permanent impairment rating to the 
 
         body as a whole ranging from 10 to 20 percent.
 
         
 
              Claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks such as heavy lifting; repetitive 
 
         lifting, bending and twisting; and, prolonged sitting.  Although 
 
         claimant must sit extensively in his job, his medical condition 
 
         does not prevent him from returning to work and to his customary 
 
         salary.  Claimant has not demonstrated that he has suffered any 
 
         loss of promotional opportunities.  Claimant's supervisor 
 
         credibly testified that claimant is a good employee and probably 
 
         will continue working for the State for the foreseeable future.
 
         
 
              Apart from his lost earnings during his healing period, 
 
         claimant has not suffered a loss of actual earnings as a result 
 
         of his disability.  However, a showing that claimant has no loss 
 
         of actual earnings does not preclude a finding of industrial 
 
         disabilities.  See Michael v. Harrison County, Thirty-fourth 
 
         Biennial Report, Iowa Industrial Commissioner 218, 220 (Appeal 
 
         Decision 1979).
 
         
 
              Claimant is 57 years of age and nearing the end of his 
 
         working career.  However, it is likely that he will continue to 
 
         work for many years given his personal life situation.
 
         
 
              Despite his education, claimant's age is a negative factor 
 
         in his potential for vocational retraining.  However, it does not 
 
         appear such retraining is necessary, at least at this time, 
 
         because he, in all likelihood, would continue in successful state 
 
         employment.
 
         
 
              Admittedly, claimant suffers from continual pain but 
 
         workers' compensation benefits cannot be awarded for pain and 
 
         suffering as would be the case if this were a personal injury in 
 
         a tort action.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 15 percent loss of 
 
         earning capacity from his work injury.  Based on such a finding, 
 
         claimant is entitled as a matter of law to 75 weeks of permanent 
 
         partial disability benefits under Iowa Code section 85.34(2)(u) 
 
         which is 15 percent of 500 weeks, the maximum allowable for an 
 
         injury to the body as a whole in that subsection.  As stipulated 
 
         in the prehearing report,.claimant has already been paid this 
 
         amount, therefore, no further award of benefits can be made.
 
         
 
              Although claimant did not prevail in this proceeding, his 
 
         case was arguable and claimant appeared honest in his testimony. 
 
         Therefore, claimant will be awarded the costs of this action.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              2.  The work injury of December 27, 1984, was a cause of a 
 
         10 to 26 percent permanent partial impairment to the body as a 
 
         whole and of permanent restrictions upon claimant's physical 
 
         activity consisting of no lifting, bending or twisting and no 
 
         prolonged sitting.
 
         
 
              3.  The work injury of December 27, 1984 and the resulting 
 
         permanent partial impairment was a cause of a 15 percent loss of 
 
         earning capacity.  Claimant is 57 years of age but he will in all 
 
         likelihood, continue working to support his two year old son. 
 
         Claimant has returned to work despite his functional impairment 
 
         without accommodations made by his employer except to allow 
 
         claimant to leave meetings early and to restrict his travel 
 
         plans. Claimant has not suffered a loss of earnings from his work 
 
         injury. Claimant is a college graduate and currently working in a 
 
         management position within the Iowa Department of Human Services. 
 
         Claimant's job performance is above average and his employment 
 
         will likely continue in the future should his condition not 
 
         worsen.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not established under law entitlement to 
 
         additional disability benefits beyond that which has already been 
 
         paid.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's request for additional weekly benefits for 
 
         permanent partial disability is denied.
 
         
 
              2.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services 343-4.33.
 
         
 
         
 
              Signed and filed this 7th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James J. Beery
 
         Attorney at Law
 
         2404 Forest Dr.
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Greg Knoploh
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            51803
 
                                            Filed July 7, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN D. SAMMON,
 
         
 
              Claimant,
 
                                                    File No. 830432
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         DEPT. OF HUMAN SERVICES,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
              
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
         51803 - nonprecedential - extent of disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS GREEN,
 
          
 
              Claimant,
 
          
 
          vs.
 
                                         File No. 830435
 
          HYMAN FREIGHTWAYS,
 
                                         A P P E A L
 
              Employer,
 
                                         D E C I S I 0 N
 
          and
 
         
 
         TRANSPORT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on November 1, 1984.  The record on appeal consists of the 
 
         transcript of the arbitration proceeding; claimant's exhibits 1 
 
         through 9; and defendants, exhibits A through L.  Only a portion 
 
         of exhibit G was admitted into the record.  Both parties filed 
 
         briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Whether the deputy industrial commissioner erred in 
 
         calculating the rate of compensation to be awarded in this case.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence, with the addition of 
 
         relevant precedents noted in the analysis section of this 
 
         decision.
 
         
 
         
 
         
 
         GREEN v. HYMAN FREIGHTWAYS
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                     ANALYSIS
 
         
 
              Claimant argues on appeal that the deputy incorrectly 
 
         calculated the rate of his weekly benefits awarded.  The deputy's 
 
         decision noted that claimant was paid with two separate checks 
 
         issued by his employer for hauling freight with a truck claimant 
 
         owned.  One check was designated wages, the second check was 
 
         designated as fees for the use of claimant's truck.
 
         
 
              Claimant urges that the deputy should have followed the 
 
         reasoning contained in Sperry v. D & C Express, Inc., (Appeal 
 
         Decision, December 10, 1987).  That decision held that the 
 
         portion of claimant's revenue from driving his truck representing 
 
         reimbursement for the expenses and use of the truck itself, as 
 
         opposed to the wage portion of the payment, could not be 
 
         determined from the record, and therefore the entire revenue from 
 
         the truck was used to determine claimant's rate.  However, 
 
         subsequent to the filing of briefs in this case, the Sperry case 
 
         was decided by the Iowa Supreme Court.  The Court held that a 
 
         truck owner-operator who is paid his wages and expenses together 
 
         must deduct the expense portion of the revenue to determine the 
 
         wage portion in the determination of a workers' compensation 
 
         rate.  In addition, Tuttle v. Stannards, Inc., (Remand Decision, 
 
         December 20, 1988), presently on appeal to the Iowa District 
 
         Court, also holds that a truck driver's expenses must be deducted 
 
         from the total revenue of the truck.  Christensen v. Hagen, 
 
         Inc., (Appeal Decision, March 26, 1985), approved a method 
 
         whereby one-third of the gross revenue of the truck was 
 
         designated wages and two-thirds as truck expense.  In 
 
         Sperry, above, the supreme court approved a 
 
         one-fourth/three-fourths division.  Claimant's reliance on the 
 
         appeal decision in Sperry is no longer valid.
 
         
 
              In addition, the agreement between the employer and employee 
 
         in this case to pay claimant in two checks, one check for wages 
 
         and another check for expenses, distinguishes this case from 
 
         Sperry, Tuttle, and Christensen.  Those cases necessitated a 
 
         division of the gross revenue of the truck between wages and 
 
         expenses because both amounts were paid to claimant together.  In 
 
         this case, the division between wages and expenses has already 
 
         been established by the parties.  Although such a division would 
 
         not be controlling in every case, here the division results in a 
 
         proportional relationship between the wages and the expenses 
 
         roughly similar to the one-fourth or one-third approach in the 
 
         above cited cases.  The two checks were issued to claimant on 
 
         separate dates.  The two checks came from different departments 
 
         of the employer.  The two checks were treated differently by both 
 
         the employee and the employer in terms of tax reporting.  
 
         Finally, it is noted that the two check arrangement was part of a 
 
         negotiated collective bargaining agreement.  The division 
 
         affected by the parties is not unconscionable in its terms.  The 
 
         wage amount designated by the parties in this case will be used
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         GREEN v. HYMAN FREIGHTWAYS 
 
         Page 3
 
         
 
         
 
         to determine claimant's rate of compensation.  The deputy 
 
         properly distinguished this case from Sperry and applied the 
 
         correct analysis.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. On November 1, 1984 claimant was a resident of the state 
 
         of iowa, employed by Hyman Freightways.
 
         
 
              2. Claimant regularly worked for the employer in the state 
 
         of Iowa and worked from terminals operated by the employer in the 
 
         state of Iowa, although a majority of claimant's working time was 
 
         not spent within the state of Iowa.
 
         
 
              3. Claimant injured his back on November 1, 1984 while 
 
         moving bags of bentonite in a semi-trailer near Cody, Wyoming as 
 
         part of the duties of his employment with Hyman Freightways.
 
         
 
              4. During the 13 weeks immediately preceding the week in 
 
         which claimant was injured, his gross earnings were $7,331.36.
 
         
 
              5. Claimant's expenses with John Sinnott, D.O., Marian 
 
         Health Center and Horn Memorial Hospital were incurred in 
 
         obtaining reasonable treatment for the injury and are fair and 
 
         reasonable in the amount charged.  The total claimed medical 
 
         expenses which are reasonable and necessary are $1,318.00.
 
         
 
              6. Claimant traveled 1,484 miles in obtaining medical 
 
         treatment prior to July 1, 1986 and 510 miles subsequent to July 
 
         1, 1986.
 
         
 
              7. Claimant has experienced a 40 percent loss in his earning 
 
         capacity as a result of the injuries he sustained on November 1, 
 
         1984.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant sustained an injury to his back on November 1, 1984 
 
         which arose out of and in the course of his employment with Hyman 
 
         Freightways.
 
         
 
              Claimant is entitled to receive 60.143 weeks of compensation 
 
         for healing period and 200 weeks of compensation for permanent 
 
         partial disability.
 
         
 
              Claimant's rate of compensation for healing period and 
 
         permanent partial disability is $344.68.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREEN v. HYMAN FREIGHTWAYS
 
         Page 4
 
         
 
         
 
              That defendants pay claimant sixty point one four three 
 
         (60.143) weeks of compensation for healing period at the rate of 
 
         three hundred forty-four and 68/100 dollars ($344.68) per week 
 
         payable for the stipulated periods running from November 3, 1984 
 
         through March 9, 1985; from March 16, 1985 through August 25, 
 
         1985; and from November 2, 1985 through March 12, 1986.
 
         
 
              That defendants pay claimant two hundred (200) weeks of 
 
         compensation for permanent partial disability at the rate of 
 
         three hundred forty-four and 68/100 dollars ($344.68) payable 
 
         commencing upon the date stipulated by the parties of March 13, 
 
         1986.
 
         
 
              That defendants pay the following medical expenses:
 
         
 
          Dr. John Sinnott               $   18.00
 
          Marian Health Center              880.00
 
          Horn Memorial Hospital             52.00
 
          Horn Memorial Hospital            368.00
 
          Total                          $1,318.00
 
         
 
              That defendants pay claimant transportation expenses in the 
 
         amount of four hundred sixty-three and 26/100 dollars ($463.26).
 
         
 
              That defendants receive credit for all amounts previously 
 
         paid.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 including the 
 
         transcription of the hearing proceeding.
 
         
 
              That defendants ale claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 2nd day of March, 1990.
 
         
 
         
 
         
 
         
 
                                         DAVID E.LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Colin J. McCullough
 
         Mr. David P. Jennett
 
         Attorneys at Law
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         701 West Main Street
 
         Sac City, Iowa 50583
 
         
 
         
 
         
 
         GREEN v. HYMAN FREIGHTWAYS
 
         Page 5
 
         
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         300 Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         1
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         3001
 
                                         Filed March 2, 1990
 
                                         David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS GREEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 830435
 
         HYMAN FREIGHTWAYS,
 
                                                A P P E A L
 
         Employer,
 
                                              D E C I S I 0 N
 
         and
 
         
 
         TRANSPORT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3001
 
         
 
              A truck owner/operator who was paid two separate monthly 
 
         checks, one designated wages and the other for expenses, was 
 
         awarded a rate based on the checks designated wages.  This case 
 
         was distinguished from Sperry, Tuttle, and Christensen.  Those 
 
         cases involved situations where the owner/operator was paid in 
 
         one lump sum, which necessitated a division between wages and 
 
         expenses.  Here, the division was already in place, was agreed 
 
         upon by the parties pursuant to collective bargaining agreement, 
 
         and was not unconscionable (resulting in approximately 1/3 of the 
 
         revenue of the truck representing wages, a result similar to 
 
         Tuttle and Christensen).