BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JIM R. BROWN,
 
        
 
            Claimant,
 
        
 
        vs 
 
                                                 File No. 830840
 
        WEITZ COMPANY,
 
                                             A R B I T R A T I O N
 
             Employer,
 
                                                D E C I S I O N
 
        and
 
        
 
        EMPLOYERS MUTUAL CASUALTY                   F I L E D
 
        COMPANY,
 
                                                   FEB 14 1989
 
             Insurance Carrier,
 
             Defendants.                       INDUSTRIAL SERVICES
 
             
 
             
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by claimant Jim 
 
             R. Brown against defendant employer Weitz Company and defendant 
 
             insurance carrier Employers Mutual Casualty Company to recover 
 
             benefits under the Iowa Workers' Compensation Act as the result 
 
             of an injury sustained on July 15, 1986 (originally set forth in 
 
             the petition as August 1, 1986). This matter came on for hearing 
 
             before the undersigned deputy industrial commissioner in Des 
 
             Moines, Iowa on February 7, 1989, and was considered fully 
 
             submitted on that date. Claimant appeared by his attorney, I. 
 
             John Rossi. Defendants appeared by attorney Brian Campbell.
 
        
 
            The evidence in this case consists of joint exhibits 1 
 
        through 10 and the testimony of claimant.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report approved by the deputy, 
 
             the following issue remains for determination: The extent of 
 
             claimant's entitlement to weekly compensation for healing period 
 
             benefits; a related issue to be determined is the commencement 
 
             date for permanent partial disability benefits.
 
        
 
            The parties stipulated to: The existence of an 
 
        employer-employee relationship at the time of the injury; that 
 
        claimant sustained an injury on July 15, 1986, arising out of and 
 
        in the course of that employment; that the injury caused 
 
        temporary and permanent disability; that claimant is entitled to 
 
        55 weeks of weekly benefits for permanent partial disability 
 
        based upon a 25% loss of the leg; that all requested medical 
 
        benefits have been or will be paid by defendants; and, that 
 
        defendants paid claimant 73 weeks of compensation at the 
 
        stipulated rate.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified that he is an iron worker by trade. He 
 

 
        
 
 
 
 
 
             was employed by Weitz Company on July 15, 1986 when he was 
 
             injured. The injury that is the subject matter of this 
 
             proceeding occurred when the claimant climbed into a hole 
 
             approximately three feet deep while carrying "rebar," otherwise 
 
             known as reinforcing steel bar. Claimant testified that his leg 
 
             "gave out" under him, and that he was thereafter unable to stand. 
 
             However, he testified to "popping" his left kneecap back into 
 
             position and thereafter being able to continue work.
 
        
 
            Claimant further testified that he did not seek medical 
 
        attention until on or about August 11, 1986, but that his leg 
 
        continued worsening after July 15. He testified that the kneecap 
 
        popped out of position on several occasions, but that he was able 
 
        to reposition it himself up to but not including the last 
 
        occasion. This is what finally caused him to seek medical 
 
        treatment.
 
        
 
            Claimant did not return to work after August 11, 1986. He 
 
        was very shortly referred to his treating physician, Stephen G. 
 
        Taylor, M.D. Dr. Taylor's records reflect surgery performed on 
 
        August 18, 1986, based upon a preoperative diagnosis of: (l) 
 
        torn medial meniscus, left knee; (2) torn anterior cruciate 
 
        ligament, left knee. Postoperative diagnosis was of displaced 
 
        bucket handle tear, medial meniscus, left knee and torn anterior 
 
        cruciate ligament, left knee.
 
        
 
            Dr. Taylor released claimant to return to work with 
 
        restrictions effective December 1, 1986. He was restricted "to 
 
        only ground work." That is to say, he was restricted from the 
 
        frequent and extensive climbing that is normally necessary in the 
 
        iron working trade.
 
        
 
            Claimant further testified that he was unable to return to 
 
        work on the basis of the restricted release because the employer 
 
        had no work available for him with those limitations. He also 
 
        sought further work through his union hall, but the union was 
 
        unable to place him because of the restriction.
 
        
 
            Dr. Taylor's records further reflect that he made no further 
 
        appointments with claimant after November 25, 1986, but that 
 
        claimant was to return on a "PRN" basis (that is, as the patient 
 
        deems necessary).
 
        
 
            Defendant insurance carrier arranged for claimant to have a 
 
        follow-up examination on June 11, 1987. Dr. Taylor then wrote to 
 
        Employers Mutual on June 12, 1987 indicating that claimant had 
 
        never resumed work since his injury, that he continued to 
 
        complain of discomfort, and that he had several episodes of his 
 
        knee giving out. Dr. Taylor's examination revealed a full range 
 
        of motion and no swelling, but definite anterior cruciate 
 
        ligament laxity of the left knee. Dr. Taylor stated that 
 
        claimant's return to work remained questionable, but that it 
 
        would be inappropriate for claimant to work on construction above 
 
        the ground due to the possibility of falling. Without 
 
        specifically commenting as to whether claimant had reached 
 
        maximum medical recovery, Dr. Taylor opined that claimant had 
 
        suffered a 35% impairment of the left lower extremity as of June 
 
        12, 1987. However, Dr. Taylor changed that rating to a 25% 
 
        impairment on November 23, 1987, when it came to his attention 
 
        that he had apparently made an error in referring to the American 
 
        Medical Association Guides to the Evaluation of Permanent 
 
        Impairment.
 
        
 
             Dr. Taylor last saw claimant on January 12, 1988. By this 
 
             time, claimant had already returned to work in the first week of 
 
             January, 1988 with another employer. Dr. Taylor's restriction as 
 

 
        
 
 
 
 
 
             to ground work only had never been lifted, but claimant did not 
 
             make that restriction known to his new employer. He continues 
 
             working as an iron worker as of the date of hearing.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             As has been seen, the only issue to be determined is the 
 
             extent of claimant's entitlement to healing period benefits. 
 
             Pursuant to Iowa Code section 85.34, where an employee has 
 
             suffered a personal injury causing compensable permanent partial 
 
             disability, the employer shall pay to him compensation for a 
 
             healing period beginning on the date of injury and until the 
 
             employee has returned to work or it is medically indicated that 
 
             significant improvement from the injury is not anticipated or 
 
             until the employee is medically capable of returning to 
 
             employment substantially similar to the employment in which he 
 
             was engaged at the time of injury, whichever first occurs.
 
        
 
            Defendants take the position that claimant ended his healing 
 
        period on December 1, 1986, when he was given a restricted 
 
        release to return to work. Defendants further point to the fact 
 
        that claimant was released on a "PRN" basis, leaving it up to him 
 
        as to when he might return for further treatment. To begin with, 
 
        it is noteworthy that the record fails to reflect that Dr. Taylor 
 
        has at any time specifically expressed an opinion as to when 
 
        claimant reached a point where significant improvement from the 
 
        injury was not anticipated. The deputy does not accept that 
 
        merely releasing a patient on a "PRN" basis should be read as 
 
        medically indicative that significant improvement is not 
 
        anticipated. Also, it is clear that claimant was not medically 
 
        capable of returning to employment "substantially similar to the 
 
        employment in which the employee was engaged at the time of 
 
        injury." The employment for which he was released was, in fact, 
 
        so dissimilar that defendant Weitz Company was unable to put 
 
        claimant to work. As claimant's testimony has made clear, very 
 
        little "ground work" is available in the iron working trade. 
 
        That work includes loading or unloading trucks and installing 
 
        ground floor foundations. Therefore, it is concluded that the 
 
        release effective December 1, 1986 did not end claimant's healing 
 
        period.
 
        
 
             Claimant takes the position that the healing period ended 
 
             when he actually did return to work in the first week of January, 
 
             1988. No doubt this had the effect of ending the healing period 
 
             if it was still in existence. However, as shall be seen, the 
 
             deputy concludes that claimant's healing period had already come 
 
             to an end on June 12, 1987.
 
        
 
            As has been seen, defendant insurance carrier caused 
 
        claimant to return to Dr. Taylor for further evaluation on June 
 
        11, 1987. A review of Dr. Taylor's June 12, 1987 letter reflects 
 
        that he again did not specify that claimant had reached maximum 
 
        medical recovery, but that he did express an opinion as to the 
 
        extent of claimant's permanent impairment.
 
        
 
            It is held that when a treating physician expresses an 
 
        opinion as to permanent impairment, this opinion implies that 
 
        claimant has reached maximum medical recovery and that the 
 
        healing period set forth in Iowa Code section 85.34 terminates. 
 
        Healing period has been defined by the Iowa Court of Appeals as 
 
        "that condition in which healing is complete and the extent of 
 
        the disability can be determined." Armstrong Tire & Rubber 
 
        Company v. Kubli, 312 N.W.2d 60 (Iowa Appeals 1981). Absent any 
 
        further indication by the evaluating physician that maximum 
 
        recovery has been or will be reached at another date, the 
 
        expression of opinion as to permanent impairment includes the 
 

 
        
 
 
 
 
 
        implication that maximum recovery has been reached. Therefore, 
 
        the healing period in this case ended on June 12, 1987.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             THEREFORE, based on the evidence presented, the following 
 
             ultimate facts are found:
 
        
 
            1. Claimant suffered a work-related injury to his left knee 
 
        on July 15, 1986.
 
        
 
            2. Claimant was released to return to work with limitations 
 
        effective December 1, 1986.
 
        
 
             3. The work to which claimant was released was not 
 
             substantially similar to the employment in which claimant was 
 
             engaged at the time of his injury.
 
        
 
            4. That following an examination of June 11, 1987, 
 
        claimant's treating physician expressed an opinion as to 
 
        claimant's permanent impairment on June 12, 1987.
 
        
 
             5. Although claimant's physician later expressed a 
 
             different opinion as to claimant's impairment, the second opinion 
 
             was merely to correct an error in the first calculation.
 
        
 
            6. Claimant returned to work substantially similar to that 
 
        in which he was engaged at the time of his injury in the first 
 
        week of January, 1988.
 
        
 
            7. Neither claimant's treating physician nor any other 
 
        physician has ever expressed a definite opinion as to the date 
 
        upon which claimant reached maximum medical recovery, or that 
 
        point at which significant improvement from his injury was not 
 
        anticipated.
 
        
 
            8. As stipulated, claimant has suffered a permanent partial 
 
        impairment of 25% of one leg.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based upon the principles of law previously 
 
             cited, the following conclusions of law are made:
 
        
 
            1. The expression of an opinion by a physician as to an 
 
        individual's permanent impairment implies that the individual has 
 
        reached maximum medical recovery as of the date of the opinion.
 
        
 
            2. Claimant's healing period for the subject injury began 
 
        on August 11, 1986 and ended on June 12, 1987.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            Defendants are to pay unto claimant forty-three point seven 
 
        one four (43.714) weeks of healing period benefits at the 
 
        stipulated rate of two hundred twenty-three and 82/100 dollars 
 
        ($223.82) per week, totalling nine thousand seven hundred 
 
        eighty-four and 07/100 dollars ($9,784.07).
 
        
 
            Defendants are to pay unto claimant fifty-five (55) weeks of 
 
        permanent partial disability [based upon a twenty-five percent 
 
        (25%) loss of the use of his leg] at the stipulated rate of two 
 
        hundred twenty-three and 82/100 dollars ($223.82), totalling 
 
        twelve thousand three hundred ten and 10/100 dollars 
 

 
        
 
 
 
 
 
        ($12,310.10).
 
        
 
            Defendants shall be entitled to credit for seventy-three 
 
        (73) weeks of compensation paid at the stipulated rate of two 
 
        hundred twenty-three and 82/100 dollars ($223.82), totalling 
 
        sixteen thousand three hundred thirty-eight and 86/100 dollars 
 
        ($16,338.86).
 
        
 
             The compensation awarded shall be paid to claimant as a lump 
 
             sum together with statutory interest thereon pursuant to Iowa 
 
             Code section 85.30.
 
        
 
            That any costs of this action shall be assessed to 
 
        defendants pursuant to Division of Industrial Services Rule 
 
        343-4.33.
 
        
 
            That defendants shall file a Claim Activity Report upon 
 
        payment of this award pursuant to Division of Industrial Services 
 
        rule 343-3.1.
 
        
 
            Signed and filed this 14th day of February, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       DAVID RASEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. I. John Rossi
 
        Attorney at Law
 
        Skywalk Suite 203
 
        700 Walnut
 
        Des Moines, Iowa 50309
 
        
 
        Mr. Brian L. Campbell
 
        Attorney at Law
 
        1100 Des Moines Building
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JIM R. BROWN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 830840
 
            WEITZ COMPANY,                :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            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 July 15, 1986.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            joint exhibits 1 through 10.  Defendants did not file a 
 
            brief on appeal.
 
            
 
                                      ISSUES
 
            
 
                 The issues as stated by claimant are:
 
            
 
                 1.  Are the facts as found by the Deputy 
 
                 Commissioner in error to the prejudice of the 
 
                 Claimant as they do not include reference to Dr. 
 
                 Taylor's statement to the Claimant on January 12, 
 
                 1988, recommending the need to (by the Claimant) 
 
                 strongly consider anterior cruciate ligament 
 
                 surgery (Exhibit 8)?
 
            
 
                 2.  Are the facts found by the Deputy Commissioner 
 
                 in error to the prejudice of the Claimant as they 
 
                 do not include reference to the contents of the 
 
                 insurance carrier letter to the Claimant dated 
 
                 July 2, 1987?
 
            
 
                 3.  Does the Deputy Commissioner err as a matter 
 
                 of law to the prejudice of the Claimant in the 
 
                 application of Section 85.34(1) to the facts?
 
            
 
                 4.  Does the Deputy Commissioner err as a matter 
 
                 of law to the prejudice of the Claimant in the 
 
                 application of Section 86.13 to the facts? 
 
            
 
                              REVIEW OF THE EVIDENCE
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 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 
 
            appro-priate to the issues and the evidence.     
 
            
 
                                     ANALYSIS
 
            
 
                 Claimant urges that the termination date of the healing 
 
            period was improperly set.  The deputy's arbitration 
 
            decision set the end of the healing period at June 12, 1987.  
 
            This was the date, established in Joint Exhibit 6, wherein 
 
            claimant's physician rated claimant's permanent partial 
 
            impairment.  Although the rating was later changed due to an 
 
            error in calculation under the AMA Guides to the Evaluation 
 
            of Permanent Impairment, this was the point in time when 
 
            claimant's physician was able to gauge the extent of 
 
            claimant's permanent impairment.  As the name implies, 
 
            permanent impairment is not subject to improvement.  A 
 
            rating of permanent impairment indicates that the healing 
 
            period has ended and further improvement is not anticipated.  
 
            This satisfies the requirements of Iowa Code section 
 
            85.34(1). 
 
            
 
                 Claimant relies on a statement by his physician dated 
 
            January 12, 1988 recommending that claimant consider 
 
            undergoing anterior cruciate ligament surgery.  The fact 
 
            that claimant may need to undergo further treatment does not 
 
            mean that claimant is still in his healing period.  
 
            Claimant's healing period can end and permanency begin with 
 
            further treatment anticipated at a later time.  Surgery may 
 
            constitute treatment only.  It does not automatically 
 
            indicate that the surgery is designed to improve the 
 
            condition.  There is no indication in the record that 
 
            further improvement was anticipated after June 12, 1987.  
 
            Many times surgery is necessary to maintain a condition.  
 
            Some injuries necessitate further surgery on a regular 
 
            basis, in some cases for years, even though such surgeries 
 
            are not designed to improve claimant's condition but rather 
 
            to treat it.  Anticipation of further surgery does not 
 
            equate with anticipation of further improvement.  
 
            
 
                 Claimant further argues that his benefits were 
 
            improperly terminated by the insurance carrier.  Claimant 
 
            relies on Joint Exhibit 7, a letter dated July 2, 1987, in 
 
            which the carrier indicates that benefits being paid after 
 
            December 1, 1986 would be considered permanency benefits.  
 
            
 
                 Section 86.13 requires 30 days notice to a claimant 
 
            before termination of benefits.  In this case, claimant's 
 
            benefits were not terminated.  All that occurred was a 
 
            designation by the insurance carrier as to how claimant's 
 
            benefits would be subjectively treated by the carrier.  Of 
 
            course, this subjective determination is not binding on this 
 
            agency, and indeed the deputy found that the permanency did 
 
            not begin until later, June 12, 1987.  Claimant's benefits 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            did not end.  All that changed was the label the insurance 
 
            carrier applied to those benefits.  Section 86.13 does not 
 
            require a notice to claimant in such situations.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  Claimant suffered a work-related injury to his left 
 
            knee on July 15, 1986.
 
            
 
                 2.  Claimant was released to return to work with 
 
            limitations effective December 1, 1986.
 
            
 
                 3.  The work to which claimant was released was not 
 
            substantially similar to the employment in which claimant 
 
            was engaged at the time of his injury.
 
            
 
                 4.  Following an examination of June 11, 1987, 
 
            claimant's treating physician expressed an opinion as to 
 
            claimant's permanent impairment on June 12, 1987.
 
            
 
                 5.  Although claimant's physician later expressed a 
 
            different opinion as to claimant's impairment, the second 
 
            opinion was merely to correct an error in the first 
 
            calculation.
 
            
 
                 6.  Claimant returned to work substantially similar to 
 
            that in which he was engaged at the time of his injury in 
 
            the first week of January 1988.
 
            
 
                 7.  As stipulated, claimant has suffered a permanent 
 
            partial impairment of 25 percent of left leg.
 
            
 
                 8.  Claimant's benefits were not terminated by 
 
            defendants.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The expression of an opinion by a physician as to an 
 
            individual's permanent impairment implies that the 
 
            individual has reached maximum medical recovery as of the 
 
            date of the opinion.
 
            
 
                 Claimant's healing period for the subject injury began 
 
            on August 11, 1986 and ended on June 12, 1987.
 
            
 
                 Claimant's benefits were not terminated under Iowa Code 
 
            section 86.13 and defendants were not required to give 
 
            claimant notice of a mere change in designation of benefits.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendants are to pay unto claimant forty-three 
 
            point seven one four (43.714) weeks of healing period 
 
            benefits at the stipulated rate of two hundred twenty-three 
 
            and 82/100 dollars ($223.82) per week, totalling nine 
 
            thousand seven hundred eighty-four and 07/100 dollars 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            ($9,784.07).
 
            
 
                 That defendants are to pay claimant fifty-five (55) 
 
            weeks of permanent partial disability [based upon a 
 
            twenty-five percent (25%) loss of use of his leg] at the 
 
            stipulated rate of two hundred twenty-three and 82/100 
 
            dollars ($223.82), totalling twelve thousand three hundred 
 
            ten and 10/100 dollars ($12,310.10).
 
            
 
                 That defendants shall be entitled to credit for 
 
            seventy-three (73) weeks of compensation paid at the 
 
            stipulated rate of two hundred twenty-three and 82/100 
 
            dollars ($223.82), totalling sixteen thousand three hundred 
 
            thirty-eight and 86/100 dollars ($16,338.86).
 
            
 
                 That the compensation awarded shall be paid to claimant 
 
            as a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 That any costs of this action shall be assessed to 
 
            defendants including the transcription of the hearing 
 
            proceeding pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. I. John Rossi
 
            Attorney at Law
 
            Skywalk Suite 203
 
            700 Walnut
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Brian L. Campbell
 
            Attorney at Law
 
            1100 Des Moines Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1802; 4000.1
 
            Filed March 13, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JIM R. BROWN,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 830840
 
            WEITZ COMPANY,                :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant received a rating of permanent partial impairment.  
 
            A later doctor's report recommended surgery.  Claimant 
 
            argued on appeal that his healing period did not end at the 
 
            time the rating was given, and that the recommendation for 
 
            surgery indicated his healing period had not ended.  Held 
 
            that a permanent rating is just that--permanent.  The 
 
            condition was not expected to change.  Further surgery could 
 
            be for treatment or maintenance as well as improvement, and 
 
            absent a showing that further improvement was expected, the 
 
            healing period ended at the time the permanent rating was 
 
            given.
 
            
 
            4000.1
 
            Claimant sought 86.13 benefits when insurance carrier 
 
            retroactively redesignated past payments as permanency 
 
            benefits rather than healing period after receiving doctor's 
 
            report.  Claimant argued that the insurance carrier was 
 
            required to give him notice before doing so.  Held that 
 
            86.13 requires notice only for termination of benefits, and 
 
            a change in subjective treatment of them by the defendant 
 
            does not constitute a termination.  The ultimate treatment 
 
            of the benefits paid is determined by the agency, not the 
 
            defendant.  As long as benefits continued to be paid, 
 
            claimant was not harmed by the label attached to them by the 
 
            defendant.  
 
            
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                                            1802
 
                                            Filed February 14, 1989
 
                                            DAVID RASEY
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JIM R. BROWN,
 
        
 
             Claimant,                     File No. 830840
 
             
 
        WEITZ COMPANY,
 
                                       A R B I T R A T I O N
 
             Employer,
 
                                           D E C I S I O N
 
        and
 
        
 
        EMPLOYERS MUTUAL CASUALTY
 
        
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1802
 
        
 
             Healing period held to end when treating physician rendered 
 
             opinion as to permanent impairment.
 
             
 
        
 
 
            
 
 
 
                 
 
 
 
 
 
                    
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIEP NGUYEN,
 
         
 
              Claimant                                 File No. 830876
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         LUCKY STORES/EAGLE'S,                         D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         MAR 29 1989
 
         NATIONAL UNION,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant Tiep 
 
         Nguyen against defendant employer Lucky Stores/Eagle's and 
 
         defendant insurance carrier National Union to recover benefits 
 
         under the Iowa Workers' Compensation Act as the result of an 
 
         injury sustained on May 11, 1986.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Davenport, Iowa on November 28, 1988.  The matter was considered 
 
         fully submitted at the close of hearing.  The parties thereafter 
 
         submitted briefs in support of their respective positions.
 
         
 
              The record in the proceeding consists of the testimony of 
 
         claimant and Mattelean Nguyen along with joint exhibits 1 through 
 
         9, inclusive.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved by the deputy, the parties have stipulated:  That an 
 
         employment relationship existed at the time of the alleged 
 
         injury; that if the alleged injury caused disability, claimant is 
 
         entitled to compensation for temporary total disability or 
 
         healing period benefits from August 19, 1986 through September 
 
         27, 1987; that claimant suffered an industrial disability to the 
 
         body as a whole; that the rate of weekly benefits is $220.30; 
 
         that if permanent partial disability benefits be awarded, the 
 
         commencement date is September 28, 1987; that medical benefits 
 
         have been or will be paid by defendants; that defendants are 
 
         entitled to credit for compensation voluntarily paid to claimant 
 
         at the stipulated rate.
 
         
 
              The issues to be resolved were identified as:  Whether 
 
                                                
 
                                                         
 
         claimant sustained an injury on May 11, 1986 arising out of and 
 
         in the course of his employment; whether the alleged injury 
 
         caused temporary or permanent disability; the extent to which 
 
         claimant is entitled to compensation for permanent disability, if 
 
         defendants are liable for the injury; taxation of costs.
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is a high school graduate holding 
 
         an associate of arts degree who now lives in Oklahoma City, 
 
         Oklahoma.  Although he did not testify as to his age, the 
 
         documentary evidence shows that he is now approximately 26 years 
 
         old.
 
         
 
              Claimant began his employment with defendant Lucky stores/ 
 
         Eagle's in 1978, well before he graduated from high school.  At 
 
         the time of his injury on May 11, 1986, he worked on a part-time 
 
         basis, but occasionally worked in excess of 40 hours per week.  
 
         He testified that he earned $10.50 per hour with various fringe 
 
         benefits.  Defendant operates a grocery store where claimant was 
 
         employed as a bagger, stocker, order filler and cashier trainee.
 
         
 
              On May 11, 1986, claimant testified that approximately half 
 
         way through his shift, he was asked by his lead man to pull an 
 
         empty bottle cart to the back room.  The cart started rolling out 
 
         of control, the rear wheels turned, and claimant slammed his back 
 
         against a rail, causing immediate pain.  He reported the injury 
 
         and left work for the day.
 
         
 
              Claimant saw a chiropractor on the following day and was 
 
         promptly referred to Charlton H. Barnes, M.D.  Dr. Barnes' notes 
 
         indicate that he first saw claimant on May 14, 1986.  Claimant 
 
         testified that,he returned to work for a few days, still had 
 
         problems, and reinjured his back at work in June, 1986, at which 
 
         time Dr. Barnes took him off work.
 
         
 
              Dr. Barnes released claimant to return to work on light 
 
         duty, and claimant did work for about one week.  He had problems 
 
         with turning, twisting and lifting, and Dr. Barnes eventually 
 
         referred him to the University of Iowa Hospitals and Clinics.
 
         
 
              Claimant testified further that he discussed the possibility 
 
         of surgery with J. M. Hoffman, M.D., and was advised that the 
 
         chances of success were only 50/50 or so.  Further, he testified 
 
         that William 0. Shaffer, M.D., of the University of Iowa 
 
         Hospitals and Clinics, advised him following a myelogram that the 
 
         chances of successful surgery were approximately 60/40.
 
         
 
              Claimant testified that he underwent the beginning of a 
 
         physical therapy program at Franciscan Rehabilitation Center, but 
 
         found the program too heavy.  Finally, claimant asked Dr. Barnes 
 
         to perform surgery, but the record is unclear as to why surgery 
 
         was not performed.
 
         
 
              Claimant has not had surgery on his back at the present 
 
                                                
 
                                                         
 
         time, and is reluctant to do so due to fear of a failed procedure 
 
         and potential complications, including paralysis.  Claimant 
 
         testified that he still suffers pain about every day.
 
         
 
              Claimant eventually moved to Oklahoma City to look for work, 
 
         and has obtained a position as a more-or-less permanent 
 
         substitute worker for an electronics firm hired through a 
 
         business known as Manpower.  He is paid $8.00 per hour, but has 
 
         no fringe benefits. This position is what claimant has been 
 
         trained for with his degree in electronics and he works as a 
 
         troubleshooter, repairing or getting the bugs out of electronic 
 
         instruments with the use of such lightweight tools as an 
 
         oscilloscope, pliers, and soldering iron.  He began this job on 
 
         November 18, 1987.
 
         
 
              Claimant testified to a 20-pound lifting restriction imposed 
 
         by Dr. Barnes, and a bending restriction.  There is some lifting 
 
         and bending involved in his work, but he avoids it or asks for 
 
         help.
 
         
 
              Claimant testified that he has missed seven or more days of 
 
         work since he began, but has been promoted since he began work.  
 
         He believes that other employees earn approximately $11.50 per 
 
         hour, presumably with other fringe benefits, and hopes eventually 
 
         to be hired by the electronics firm.  However, claimant testified 
 
         that his lifting restriction is a serious impediment to work in 
 
         the electronics field.
 
         
 
              Claimant testified that he last saw a physician for his back 
 
         injury in November, 1987, that he has avoided the use of 
 
         pain-killing medications for some three to four months, and that 
 
         he continues a self-administered physical therapy regimen.
 
         
 
              Claimant also testified that he quit his educational program 
 
         when it appeared that he would have a good future with employer, 
 
         but that he returned to school when Dr. Barnes imposed a lifting 
 
         restriction.  He returned to school in the fall of 1986 and 
 
         dramatically improved his grades in a 10-hour course, gaining 
 
         honors for his last school term.
 
         
 
              Claimant testified further that he has searched extensively 
 
         for further employment, but has been unsuccessful.  He believes 
 
         that this is due to his injury and resulting limitations.
 
         
 
              Mattelean Nguyen testified that she is claimant's sister, 
 
         and that they resided together until approximately one year ago 
 
         when claimant moved to Oklahoma City.  She saw him on a daily 
 
         basis prior to the May 11, 1986 injury.
 
         
 
              Mattelean Nguyen further testified that claimant suffered 
 
         from no physical problems prior to his injury, and was active in 
 
         various high school sports, including basketball, football, 
 
         track, jogging and weight lifting.  She testified that claimant 
 
         discontinued those activities after his injury, that he is able 
 
         to do very little physical work to help with the housework, and 
 
                                                
 
                                                         
 
         that his mood has been depressed since his injury.
 
         
 
              The medical records of Dr. Barnes, along with his 
 
         deposition, show that he is an orthopaedic surgeon certified by 
 
         the Board of Orthopaedic Surgery and is a fellow in the American 
 
         College of Orthopaedic Surgeons.  When he first saw claimant, he 
 
         interpreted an x-ray examination as revealing a spondylolysis at 
 
         the L4,5 level which he felt was unusual, as he had never seen 
 
         one in that vertebra.  His office notes show that he wrote to an 
 
         insurance adjustor on November 19, 1986 and at that time 
 
         diagnosed claimant as suffering from spondylolisthesis at L-4.  
 
         Noting claimant's history of athletics and that he had worked for 
 
         the grocery store for a number of years without difficulty, Dr. 
 
         Barnes expressed his view that the injury was new and related to 
 
         the work.
 
         
 
              A notation of September 12, 1987 observed that claimant now 
 
         wanted a surgical fusion done, although it is unclear why none 
 
         was performed.  In a letter to claimant's attorney of September 
 
         16, 1987, Dr. Barnes suggested a probable success rate for 
 
         surgery of 70%-80%, but probably 80%-90% successful if claimant 
 
         kept his weight down.  From claimant's appearance at hearing, it 
 
         is evident that he has done so.  That letter also reported a 
 
         "permanent disability rating" of 20%.
 
         
 
                          
 
                                                         
 
              A notation in Dr. Barnes' medical notes of September 23, 
 
         1987, shows that a 20-pound weight restriction was imposed.
 
         
 
              In Dr. Barnes' deposition taken June 13, 1988, he noted a 
 
         diagnosis of spondylolysis of L4-5, which he referred to as a 
 
         "break" or fracture in the back of the L-4 vertebra.  He 
 
         testified that claimant had a 20-pound weight restriction still 
 
         in effect and a restriction against twisting and lifting.  
 
         However, he noted that claimant did not have any "slips," so he 
 
         could even play high school football if he desired.  Dr. Barnes 
 
         indicated that claimant should not do any heavy laboring job, but 
 
         that his injury was compatible with a pretty good lifestyle.  
 
         Claimant had a grade I spondylolysis, which could withstand a 
 
         fair amount of trauma, and by "grade I" indicated that the 
 
         vertebra had not slipped, or had only slipped 25% of its width.
 
         
 
              When asked about possible fusion surgery, Dr. Barnes 
 
         responded:
 
         
 
              Well, it's a last resort thing.  If he can live with it, 
 
              fine, live with it.  If he can't, then he would probably do 
 
              fine with it.
 
         
 
              Included in Dr. Barnes' medical records was the report of J. 
 
         F. Holl, M.D., following tomograms of the lumbar spine.  His 
 
         impression was spondylolysis of L4 due to a bilateral defect in 
 
         the pars interarticularis.  Clinical notes of the University of 
 
         Iowa Hospitals dated January 22, 1987, by Drs. Simmons and 
 
         Shaffer note an x-ray impression of spondylolytic 
 
         spondylolisthesis at L4-5 with instability of L4-5.  Those notes 
 
         indicated that claimant would probably do well with surgery, 
 
         including a tension band wiring of the defect or a fusion of 
 
         L4-5.  The notes also report:
 
         
 
              Plan:  we agree that the patient that as long as his pain is 
 
              not severe he is not indicated for surgical intervention.  
 
              He would need to be off work any where from 3 months to one 
 
              year following a surgical fusion or a tension band wiring.  
 
              It is unlikely however that he will be able to return to 
 
              work doing heavy lifting and repeat bending.  He may be a 
 
              candidate for vocational rehabilitation.  He do [sic] 
 
              activities as tolerated and avoid heavy lifting.  He will 
 
              return to us on a prn basis if he wishes to consider 
 
              surgical intervention.
 
         
 
              A May 12, 1987 radiologic consultation report by an unknown 
 
         physician (due to illegibility of the exhibit) reflects an 
 
         impression of a spondylolisthesis.  An impression of 
 
         spondylolysis was reached by radiologist R. Farner following an 
 
         examination of March 3, 1987.  Radiologist T. Gleason did a 
 
         radiological examination on January 22, 1987, and found 
 
         instability at the L4-5 level.  He stated there was 
 
         spondylolisthesis in flexion at L4-5, and possible spondylolysis 
 
         at L4.  Dr. Gleason noted no fractures. A discharge summary dated 
 
         March 4, 1987, and signed by Bobbi Farber, M.D., established 
 
                                                
 
                                                         
 
         a.diagnosis of a spondylolytic spondylolisthesis with bilateral 
 
         pain defect with right nerve root impingement.
 
         
 
              Also in the record is a one-page document consisting of the 
 
         office notes of J. M. Hoffman, M.D.  They are dated November 18, 
 
         1986.  His impression of an x-ray review was significant for a 
 
         spondylolysis of L4-5, but no spondylolisthesis.  His further 
 
         impression:
 
         
 
              I feel that the patient's symptoms are indeed consistent 
 
              with symptomatic spondylolisthesis.  The spondylolysis was 
 
              probably present prior to the injury but it is entirely 
 
              reasonable for this to have been entirely asymptomatic for 
 
              the previous 24 years until his most recent injury.
 
         
 
              The record also contains numerous notes from the Work 
 
         Fitness Center affiliated with Franciscan Medical Center.  
 
         Numerous entries in the case notes and progress notes indicate 
 
         that claimant was a reluctant participant in work hardening and 
 
         that there were some inconsistencies in his self-imposed 
 
         limitations. Following testing, a report was issued on July 10, 
 
         1987, and suggesting certain restrictions against:  Lifting from 
 
         a full squat position; carrying over 20 pounds more than seven 
 
         feet; pushing and pulling to a maximum of 10 pounds; bending from 
 
         the waist; stair climbing more than intermittently and self-paced 
 
         with no load; walking more than a few miles total per day; static 
 
         squatting; kneeling; crawling; ladder climbing; jumping and 
 
         running; standing past one minute.  However, the recommendations 
 
         were based upon test results, and also detailed certain 
 
         inconsistencies in the test procedure.  Claimant also saw Robert 
 
         J. Chesser, M.D., a physiatrist.  Dr. Chesser's notes of August 
 
         21, 1987 reflect his analysis of x-rays of the lumbar spine as 
 
         demonstrating bilateral L4 spondylosis without any evidence of 
 
         spondylolisthesis.  A bone scan performed by C. P. Tillman, M.D., 
 
         reflected a finding of spondylolysis with no associated 
 
         spondylolisthesis.
 
         
 
              Claimant was also seen for evaluation by Anthony D'Angelo, 
 
         D.O.  Dr. D'Angelo is an orthopaedic surgeon.  His assessment was 
 
         of chronic lumbosacral strain/sprain.  He opined in a letter to 
 
         an insurance adjustor on October 5, 1987, that a spinal fusion 
 
         might or might not be of benefit for control of continued pain.  
 
         His office notes show that he did not recommend for or against 
 
         surgery, but that this would best be determined elsewhere.
 
         
 
                       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 claimant must prove by a preponderance of the evidence 
 
         that the injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).,
 
                                                
 
                                                         
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 11, 1986 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              Claimant testified credibly to a traumatic event that 
 
         triggered the onset of pain and his subsequent problems.  While 
 
         the parties identified arising out of and in the course of 
 
         employment and causal connection as issues to be determined, 
 
         defendants' post-trial brief essentially conceded that point by 
 
         noting that "the only real issue in dispute between the parties 
 
         is the extent of claimant's permanent partial disability."  Dr. 
 
         Barnes and Dr. Hoffman expressed opinions tending to show that a 
 
         causal connection existed between the traumatic event and 
 
         claimant's symptomatology.  No contrary evidence appears of 
 
         record.  It is held that the incident of May 11, 1986 caused an 
 
         injury (even if preexisting, the incident at least aggravated or 
 
                                                
 
                                                         
 
         "lighted up" the preexisting condition) and that the injury both 
 
         arose out of and in the course of claimant's stipulated 
 
         employment relationship.
 
         
 
              The extent of temporary total disability/healing period to 
 
         which claimant is entitled has been stipulated, as has the 
 
         question of medical benefits.  Therefore, permanent disability is 
 
         the issue that remains to be determined.  It is clear that 
 
         claimant has suffered a permanent injury.  He still suffers 
 
         symptoms nearly three years after the incident and still has a 
 
         substantial restriction as to lifting and twisting.  Since it is 
 
         clear that claimant does have a permanent disability resulting 
 
         from his injury, the question is to what extent does this 
 
         permanent disability extend.  It has been stipulated that 
 
         claimant's injury is an injury to the body as a whole.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 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 or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Claimant is young enough to be retrained, and in fact has 
 
         been retrained to the extent of earning an associate of arts 
 
         degree in electronics.  As he was approximately 24 years old at 
 
         the time of injury, it is probable that he has not reached his 
 
         prime and most productive earning years.  While there may be some 
 
         electronics positions for which he will be unsuited by reason of 
 
         the restrictions, it seems that electronics as a field of 
 
         endeavor is an excellent choice for an individual with a 
 
         permanent back injury.  While the physicians have differed 
 
         somewhat as to the exact diagnosis, it is sufficient to note that 
 
                                                
 
                                                         
 
         claimant suffers an instability to the L4 vertebra and that the 
 
         injury appears to be of permanent duration.
 
         
 
              Claimant is currently working as a temporary or substitute 
 
         employee, and is earning less money than he earned with defendant 
 
         Lucky Stores/Eagle's.  However, he is hopeful of obtaining 
 
         permanent employment, and given that he is a degree holder and 
 
         has shown his aptitude through obtaining a promotion, it is 
 
         likely that he will eventually find full-time electronics work 
 
         that will be at least equally remunerative as that of his 
 
         employment with defendant.  Nonetheless, the physical 
 
         restrictions imposed on claimant will have the effect of barring 
 
         him from a large number of potential employment opportunities.  
 
         As the notes from the Franciscan Work Fitness Center indicate, 
 
         claimant is suited for sedentary work at this time.  Claimant has 
 
         suffered a diminution of his earning capacity by reason of the 
 
         injury.
 
         
 
              Defendants note in their brief that surgery might well 
 
         correct or ameliorate claimant's problems.  Even though it 
 
         appears that claimant overstates the danger of failure, the 
 
         medical records disclose that no physician has recommended 
 
         surgery, while both Dr. Barnes and Dr. D'Angelo indicate that it 
 
         is essentially claimant's choice, and Dr. Barnes indicates that 
 
         this is a reasonable choice.
 
         
 
              It is worth noting that defendants claim that claimant's 
 
         back injury is a mild one, based upon Dr. Barnes' opinion that he 
 
         would be able to withstand trauma, even such severe trauma as 
 
         might be occasioned by playing high school football.  Of course, 
 
         there is no indication in the record that claimant intended to 
 
         become a professional athlete.  In any event, the ability to 
 
         withstand trauma is one consideration, but a 20-pound lifting 
 
         restriction is yet another, and not indicative of such a mild 
 
         back problem as defendants believe.  It is noteworthy that 
 
         defendants were unable to keep claimant employed, given his 
 
         limitations.  This is a factor tending to show industrial 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              Given generally the record made by the parties and the above 
 
         considerations in particular, this deputy finds and concludes 
 
         that claimant has, by reason of his work-related injury, suffered 
 
         an industrial disability of 25% of the body as a whole, the 
 
         commencement date for permanent partial disability having been 
 
         stipulated by the parties to be September 28, 1987.
 
         
 
              Although the parties stipulated to a rate of $220.30, this 
 
         was based on an incorrect injury date of August 19, 1986.  The 
 
         schedule published by this office effective July 1, 1985 must be 
 
         used, not the schedule effective July 1, 1986.  Using the correct 
 
         schedule, claimant's correct rate is $219.64.
 
         
 
                              FINDINGS OF FACT
 
         
 
                                                
 
                                                         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  As stipulated, claimant was an employee of defendant 
 
         Lucky Stores/Eagle's on May 11, 1986.
 
         
 
              2.  That claimant suffered a traumatic work injury on May 
 
         11, 1986, when he lost control of a cart containing empty 
 
         bottles.
 
         
 
              3.  That claimant's injury caused him to be disabled for a 
 
         healing period stipulated to be from August 19, 1986 through 
 
         September 27, 1987.
 
         
 
              4.  That physicians have disagreed as to the appropriate 
 
         diagnosis, but claimant's injury clearly relates to an 
 
         instability of the L4 lumbar vertebra.
 
         
 
              5.  That claimant's injury has been stipulated to be an 
 
         industrial disability to the body as a whole.
 
         
 
              6.  That claimant's rate of weekly compensation is $219.64.
 
         
 
              7.  That claimant's work injury has caused him permanent 
 
         disability and a diminution of his earning capacity.
 
         
 
              8.  Claimant was a credible witness.
 
         
 
              9.  Claimant has been given physical limitations by reason 
 
         of his injury that include no lifting over 20 pounds and against 
 
         twisting.  Claimant also has difficulty with prolonged standing 
 
         or sitting, and vocational rehabilitation experts have imposed 
 
         other restrictions, such as against crawling, climbing ladders, 
 
         squatting, and the like.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant suffered an injury arising out of and in the 
 
         course of his employment on May 11, 1986.
 
         
 
              2.  Claimant's injury was an injury to the body as a whole.
 
         
 
              3.  Claimant's injury directly caused a healing period from 
 
         August 19, 1986 through September 27, 1987 (57.857 weeks) and 
 
         permanent partial disability.
 
         
 
              4.  Claimant has established a permanent partial disability 
 
         of 25% of the body as a whole, the commencement date being 
 
         September 28, 1987.
 
         
 
                                    ORDER
 
         
 
                                                
 
                                                         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant fifty-seven point eight 
 
         five seven (57.857) weeks of healing period benefits at the rate 
 
         of two hundred nineteen and 64/100 dollars ($219.64) per week 
 
         totalling twelve thousand seven hundred seven and 71/100 dollars 
 
         ($12,707.71) and payable commencing August 19, 1986. 
 
         
 
              Defendants are to pay unto claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of two hundred nineteen and 64/100 dollars ($219.64) per week 
 
         totalling twenty-seven thousand four hundred fifty-five and 
 
         00/100 dollars ($12,455.00) and payable commencing September 28, 
 
         1987.
 
         
 
              Defendants shall be entitled to credit for all compensation 
 
         paid to claimant as of the date of this decision.
 
         
 
              Any benefits which have accrued as of the date of this 
 
         decision shall be paid in a lump sum together with statutory 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a Claim Activity Report pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of March, 1989.
 
         
 
         
 
                                    
 
                                                         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John J. Wolfe, Jr.
 
         Attorney at Law
 
         402 Sixth Avenue South
 
         Clinton, Iowa  52732
 
         
 
         Mr. Thomas N. Kamp
 
         Mr. John D. Telleen
 
         Attorneys at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa  52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed March 29, 1989
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TIEP NGUYEN,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 830876
 
         
 
         LUCKY STORES/EAGLE'S,                   A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         NATIONAL UNION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Twenty-six-year-old claimant with associates degree in 
 
         electronics, who lost his,job with defendant employer due to 
 
         injury and had a 20-pound lifting restriction due to work-related 
 
         instability of L-4, was awarded 25% permanent partial 
 
         disability.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE C. HOFFMAN,           :
 
                                          :         File Nos. 831136
 
                 Claimant,                :                   869798
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :         D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Suzanne 
 
            C. Hoffman against Fox River Mills, Inc., her former 
 
            employer, Hartford Insurance Company, the employer's 
 
            insurance carrier, and the Second Injury Fund of Iowa.
 
            
 
                 At this time, the only claim is against the Second 
 
            Injury Fund of Iowa as both claims against the employer have 
 
            been settled and the settlements approved by the Division of 
 
            Industrial Services.  File number 831136, which alleged an 
 
            injury of August 15, 1986 resulting from cumulative trauma 
 
            to claimant's left arm, shoulder and neck, was settled 
 
            through an agreement for settlement under Iowa Code section 
 
            86.13(3).  Under the settlement, claimant received 
 
            compensation for a 9 percent permanent partial disability of 
 
            her left arm.  The agreement for settlement included 
 
            statements that the claimant has sustained a permanent 
 
            impairment at 9 percent of the left arm and that she has not 
 
            suffered any impairment to the body as a whole as a result 
 
            of the August 15, 1986 injury.  The settlement was approved 
 
            by a deputy industrial commissioner on March 30, 1990.
 
            
 
                 File number 869798 alleges an injury resulting from 
 
            cumulative trauma occurring on November 23, 1987 affecting 
 
            claimant's right arm, shoulder and neck.  An agreement for 
 
            settlement was entered into which provided claimant with 
 
            compensation for a 15.5 percent permanent impairment of the 
 
            right arm.  The settlement documents also contain a 
 
            stipulation that claimant agrees that her injury of November 
 
            23, 1987 did not result in impairment to the body as a 
 
            whole.  That settlement was also approved by a deputy 
 
            industrial commissioner on March 30, 1990.
 
            
 
                 The only issues in this case deal with the claim 
 
            against the Second Injury Fund of Iowa.  Claimant seeks to 
 
            have her disability compensated industrially based upon two 
 
            successive injuries under Iowa Code section 85.64.  The 
 
            Second Injury Fund contends that it is not bound by the 
 
            settlements with regard to whether or not there was an 
 
            injury which arose out of and in the course of employment, 
 
            causation or the extent of permanent disability resulting 
 
            from any injury.  The Second Injury Fund contends that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's condition is an occupational disease which is 
 
            covered by Chapter 85A of The Code of Iowa and that claimant 
 
            has no entitlement to benefits from the Second Injury Fund.  
 
            The Second Injury Fund also contended that, in the event the 
 
            condition is the result of injury, it is actually one 
 
            injury, rather than two separate, distinct traumatic 
 
            occurrences, namely one general overuse syndrome injury, and 
 
            that therefore the Second Injury Fund has no liability.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa on February 26, 1990.  The evidence in the case 
 
            consists of testimony from Suzanne C. Hoffman, Larry 
 
            Hoffman, DeAnna Tischer, claimant's exhibits 1 through 13, 
 
            claimant's exhibit 15 and defendants' exhibits A and B.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Suzanne C. Hoffman is a 40-year-old married woman who 
 
            is a high school graduate with some cosmetology training.  
 
            Hoffman's past work experience includes work as a secretary 
 
            while in high school, work in grocery stores and her work 
 
            with Fox River Mills which began in July or August of 1982.
 
            
 
                 Fox River Mills is in the business of manufacturing 
 
            socks and gloves.  Shortly after being hired, claimant moved 
 
            to a job referred to as "seaming" in which she sewed seams 
 
            into the toes of socks.  The job required repetitive use of 
 
            her hands and arms.  Claimant's pay was determined on a 
 
            piece rate basis.  The normal activity of the work was to 
 
            put the hand into a sock, fold it, pull it out and sew.
 
            
 
                 Suzanne had no problems with her hands or arms prior to 
 
            commencing work at Fox River Mills.  Eventually, however, 
 
            her right hand began swelling.  Initially, the swelling 
 
            would resolve overnight, but by January, 1986, the swelling 
 
            became evident early in the work day.  Claimant sought 
 
            treatment from Mark B. Johnson, M.D., an Osage, Iowa family 
 
            practitioner.  Claimant was taken off work from January 31, 
 
            1986 and referred to orthopaedic surgeon Thomas F. 
 
            DeBartolo, M.D.  Dr. DeBartolo diagnosed what he considered 
 
            to be minor problems affecting each of claimant's upper 
 
            extremities (defendants' exhibit B, pages 4-7, 51 and 52).  
 
            Dr. DeBartolo authorized her to return to work on February 
 
            27, 1986 with a four-week period of gradually restoring her 
 
            to full-time work (claimant's exhibit 1).
 
            
 
                 Claimant returned to Dr. DeBartolo on September 17, 
 
            1986 with left forearm discomfort.  He diagnosed claimant as 
 
            having a compression of the radial nerve.  Conservative 
 
            treatment proved ineffective at resolving her symptoms and 
 
            on December 9, 1986 Dr. DeBartolo performed a surgical 
 
            release of the radial nerve.  By March 8, 1987, claimant had 
 
            returned to work at full duty.  On follow-up visits, 
 
            claimant's result from the left arm surgery appeared quite 
 
            good.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant saw Dr. DeBartolo again on November 23, 1987 
 
            at which time she exhibited symptoms similar to those which 
 
            had previously affected her left arm (defendants' exhibit B, 
 
            pages 27 and 28).  Surgery on the right arm to release the 
 
            radial nerve was performed on February 15, 1988.  Recovery 
 
            from the right arm surgery was more extended than from the 
 
            left arm surgery.  Claimant was released to return to work 
 
            with restrictions on May 11, 1988, but no suitable work was 
 
            available.  Through work with vocational consultant Cecilia 
 
            O'Brien, claimant did return to part-time work, working four 
 
            hours per day in approximately October, 1988.  A supervisory 
 
            position for claimant was discussed, but was never offered 
 
            to her.  On November 15, 1988, her employment was 
 
            terminated.
 
            
 
                 Since that time, claimant has sought work in department 
 
            stores and grocery stores.  She has applied for secretarial 
 
            positions, sales clerk positions, a bank teller position and 
 
            a post office position.  She has now started her own 
 
            business cleaning houses.  She earns $6.00 per hour, but is 
 
            only able to work approximately 24 hours per week due to her 
 
            problems with her hands and arms.
 
            
 
                 Claimant agreed that the surgery on her left arm was 
 
            relatively successful, but she still experiences a recurring 
 
            ache in the arm.  She stated that her right arm is similar, 
 
            but that the pain is more constant and runs through her 
 
            entire arm into her shoulder and fingers.  She stated that 
 
            she has swelling and loss of grip in her right hand.  She 
 
            voiced other complaints.
 
            
 
                 Claimant's permanent impairment has been rated by Dr. 
 
            DeBartolo as a 13 percent impairment of her right upper 
 
            extremity (defendants' exhibit B, pages 36-38).  He rated 
 
            claimant as having zero impairment of her left arm, although 
 
            he acknowledged that with some sophisticated biomedical 
 
            equipment, there would probably be some detectable loss or 
 
            impairment affecting claimant's left arm (defendants' 
 
            exhibit B, pages 29, 30 and 76-78).
 
            
 
                 Dr. DeBartolo was clearly of the opinion that the 
 
            repetitive work claimant performed at Fox River Mills had 
 
            caused her radial nerve compression conditions, the need for 
 
            surgery and the resulting permanent problems (defendants' 
 
            exhibit B, pages 20, 37, 55, 56, 65 and 66).
 
            
 
                 As early as November of 1987, Dr. DeBartolo had 
 
            recommended that claimant change occupations (defendants' 
 
            exhibit B, page 28, lines 15 and 16).  He related that she 
 
            is unable to perform repetitive hand and arm motions 
 
            (defendants' exhibit B, page 80).
 
            
 
                 Claimant was also evaluated by Waterloo orthopaedic 
 
            surgeon John R. Walker, M.D.  Dr. Walker, after examining 
 
            claimant, concluded that she has the residuals of an 
 
            over-use stress type of syndrome affecting her left and 
 
            right upper extremities, which conditions have been treated 
 
            fairly successfully by Dr. DeBartolo.  He found her to have 
 
            a bilateral loss of grip strength due to the syndrome.  He 
 
            rated claimant as having an 18 percent permanent partial 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            impairment of the left upper extremity and a 22 percent 
 
            permanent partial impairment of the right upper extremity 
 
            due to the syndrome and residuals following treatment.  Dr. 
 
            Walker also found claimant to have permanent partial 
 
            impairment of her cervical spine.
 
            
 
                 Dr. Walker recommended that claimant avoid repetitive 
 
            motions which require pinching, squeezing, pronation and 
 
            supination of the forearms or flexion or extension of the 
 
            wrists, any type of gripping or knife handling jobs or 
 
            repetitive work (claimant's exhibit 12).
 
            
 
                 In Dr. DeBartolo's deposition, the following 
 
            conversation appears:
 
            
 
                 Q.  Now, I've heard you use the term overuse 
 
                 syndrome, and I've read it also in a report by 
 
                 Doctor Johnson that Mr. Kinsey referred to.  Could 
 
                 you tell us what you mean by overuse syndrome?
 
            
 
                 A.  Umm, there is good reproducible data that 
 
                 demonstrates that tendon structures undergo a 
 
                 process of injury manifest clinically by the 
 
                 development of inflammation, scarring, altered 
 
                 circulation, so forth, by repetitive loads, and 
 
                 the factors are -- can be best summarized from a 
 
                 simplicity standpoint in terms of the frequency 
 
                 with which the load is applied and the amount or 
 
                 the force of loading.  The worst combination is a 
 
                 high force and a high frequency.  The least 
 
                 stressful is a low force and a low frequency.  How 
 
                 a particular individual is going to respond, 
 
                 there's -- there's a great -- there's a great 
 
                 variation from individual to individual, so when 
 
                 we talk about cumulative trauma, we talk about 
 
                 some type of force being applied in a repetitive 
 
                 manner to a localized area of the body that then 
 
                 becomes manifest in terms of inflammation causing 
 
                 pain or the side effects of inflammation such as 
 
                 nerve compression or the side effects of altered 
 
                 circulation such as cumulative vibratory trauma 
 
                 that leads to altered circulation, so those are 
 
                 the types of problems that we're dealing with.
 
            
 
                 Q.  All right.  Would you agree then that the 
 
                 bilateral problems and conditions of Mrs. Hoffman 
 
                 that you diagnosed as a bilateral radial nerve 
 
                 compression would fit under that broad category of 
 
                 overuse syndrome?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Would you also agree that the bilateral 
 
                 problems that were reported to you and which 
 
                 necessitated surgery were a result of the 
 
                 repetitive use of both her hands, wrists and arms?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Would you also agree that the bilateral 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 problems that we have discussed as an overuse 
 
                 syndrome manifest themselves on separate occasions 
 
                 when the patient is subjected to the repetitive 
 
                 type of work activities?
 
            
 
                 * * *
 
            
 
                 A.  I don't understand because are you talking 
 
                 about right now or are you talking about on 
 
                 presentation or how it presented in her situation?
 
            
 
                 Q.  Well, let me -- let me ask you this.  Would 
 
                 you agree that there -- with an overuse syndrome 
 
                 such as we're talking about in this case, that 
 
                 there would be no separate and distinct injury or 
 
                 no actual trauma that was a cause of Mrs. 
 
                 Hoffman's bilateral problems?
 
            
 
                 A.  Yes, I would agree with that.
 
            
 
                 Q.  Okay.  Would you agree that given what you 
 
                 know about Mrs. Hoffman's job activities that she 
 
                 had bilateral problems that were developing 
 
                 simultaneously but yet would or may manifest 
 
                 themselves on different occasions?
 
            
 
                 A.  I would agree with that.
 
            
 
                 Q.  Would you agree that given what Mrs. Hoffman 
 
                 described to you as her work activities that she 
 
                 used both her hands and arms more so than would an 
 
                 individual in the general population?
 
            
 
                 A.  Yes.  I feel that she -- she would.
 
            
 
                 Q.  And it's my understanding that you have 
 
                 testified that Mrs. Hoffman's bilateral conditions 
 
                 or problems for which she sought your treatment 
 
                 and care had a direct causal connection with her 
 
                 employment at Fox River?
 
            
 
                 A.  Yes, I have testified to that.
 
            
 
                 Q.  All right.  And would you also agree that the 
 
                 bilateral conditions or problems of Mrs. Hoffman 
 
                 followed as a natural incident of her employment 
 
                 and not something not related to her employment?
 
            
 
                 A.  It's my feeling that that is the case.  That 
 
                 is one of the most difficult issues in cumulative 
 
                 trauma and separating out the epidemiology of 
 
                 people who develop compression of their radial 
 
                 nerve in the forearm that don't do the types of 
 
                 repetitive work that Mrs. Hoffman does.  It's my 
 
                 feeling that if she did not do the type of -- the 
 
                 rapid repetition of her forearms, that these 
 
                 symptoms would not have developed.
 
            
 
            (Dr. DeBartolo deposition, page 85, line 11 through page 88, 
 
            line 20)
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 It is specifically found that the assessment of the 
 
            case made by Dr. DeBartolo at pages 85 through 88 of exhibit 
 
            B is correct.  It is further found that the claimant has a 
 
            15.5 percent permanent impairment of her right arm and a 9 
 
            percent permanent impairment of her left arm due to the 
 
            residuals of her condition.
 
            
 
                 It is specifically found that Suzanne C. Hoffman is 
 
            afflicted with the occupational disease of overuse syndrome 
 
            which affects her arms.
 
            
 
                 It is further found that as a result of the 
 
            occupational disease, Suzanne Hoffman is actually 
 
            incapacitated from performing her work at Fox River Mills, 
 
            Inc., and also from earning equal wages in other suitable 
 
            employment.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be addressed is whether the 
 
            settlements are binding on the Second Injury Fund.  That 
 
            issue was determined consistent with the Fund's contention 
 
            in the case Northrup v. Tama Meat Packing, file number 
 
            724196 (App. Decn., March 19, 1990).  Deference should be 
 
            given to bona fide good faith settlements, however, rather 
 
            than to simply relitigate all issues in every case which 
 
            involves the Fund.  To do otherwise would be contrary to 
 
            judicial and administrative efficiency.  Since the Fund is 
 
            not a party, however, to settlements, all settlements should 
 
            be reviewable where the terms affect the Second Injury Fund.  
 
            The Fund introduced no new evidence on claimant's functional 
 
            impairment.  In this case, the agreed impairments from the 
 
            settlements are well supported by the evidence introduced 
 
            and those permanent partial disabilities of each of 
 
            claimant's arms are accepted as being correct.  To adopt a 
 
            policy of relitigating every issue of fact, even where the 
 
            original result is fully consistent with the evidence which 
 
            exists, and whri  thme, day after day.  It is common knowledge that many 
 
            occupations do not require or involve repetitive use of the 
 
            hands and arms.  There is a direct causal connection with 
 
            the employment and the overuse syndrome followed as a 
 
            natural incident from the injurious exposure in the nature 
 
            of repetitive activity occasioned by the nature of the 
 
            employment.  Claimant's overuse syndrome disease was 
 
            incidental to the character of the business, in particular 
 
            the process in which she was employed, and it did not arise 
 
            independent of that employment.  The condition clearly had 
 
            its origin in a risk connected with the repetitive activity 
 
            of the employment.  The hazard of repetitive activity is not 
 
            one to which the claimant would have been equally exposed 
 
            outside of her occupation.
 
            
 
                 The distinction between injury resulting from 
 
            cumulative trauma which can be compensable, an occupational 
 
            disease which can be compensable, and the normal wear and 
 
            tear incident to a life devoted to hard work which is not 
 
            compensable is not easily made.  If carried to its logical 
 
            extreme, it can be asserted that every step, motion or 
 
            impact a person experiences is a single incident of 
 
            cumulative trauma which plays a part in the breakdown of the 
 
            person's body.  The aging process itself also commonly 
 
            results in a breakdown of the body.  It is only when there 
 
            is some clearly identifiable stress or cumulative trauma 
 
            which produces a premature breakdown of the body that there 
 
            is a right to recover under either the injury or 
 
            occupational disease law.  That situation exists in this 
 
            case.
 
            
 
                 The proper analysis to be used when determining whether 
 
            a condition should be treated as an occupational disease or 
 
            a cumulative trauma injury is to first analyze whether the 
 
            condition falls within the definition of occupational 
 
            disease as established by the facts entered into evidence 
 
            and proven in the particular case.  There are some ailments 
 
            or conditions which can be a result of either an injury or 
 
            an occupational disease, depending upon the causative 
 
            factors in the particular case.  If the condition falls 
 
            within the definition of an occupational disease, then Code 
 
            section 85.61(5)(b) excludes the condition from being 
 
            treated as an injury.  If it is excluded, then no payments 
 
            are recoverable on account of injury under the workers' 
 
            compensation law and, therefore, the restriction on 
 
            liability found in Code section 85A.14 does not become 
 
            applicable.  It should be noted in making the legal analysis 
 
            that the definition of injury specifically excludes 
 
            occupational disease while the definition of occupational 
 
            disease contains no corresponding specific exclusion of 
 
            injury.  The only exclusion is found in section 85A.14 for 
 
            those cases where workers' compensation benefits are payable 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            on account of injury.  The erroneous payment of benefits 
 
            which results from treating a condition as an injury, when 
 
            it is actually an occupational disease, should not prohibit 
 
            a recovery under the occupational disease law.
 
            
 
                 The distinction between injury and occupational disease 
 
            can have a very significant impact upon the benefits that 
 
            are payable.  Injuries which affect only scheduled members 
 
            entitle the employee to recover benefits under the scheduled 
 
            member system provided in section 85.34(2)(a) through (t).  
 
            The compensation for permanent partial disability is payable 
 
            without regard to the actual impact of the injury on the 
 
            individual's actual earnings or earning capacity.  The 
 
            disability compensation is paid regardless of whether there 
 
            is any reduction of actual earnings or earning capacity and 
 
            also without regard to the extent of any reduction in 
 
            earnings or earning capacity.
 
            
 
                 Under the occupational disease law, no compensation for 
 
            permanent disability, partial or total, is paid until such 
 
            time as the threshold of disablement is reached as defined 
 
            in Code section 85A.4.  That occurs only when the employee 
 
            is actually incapacitated from performing the employee's 
 
            work or from earning equal wages in other suitable 
 
            employment because of the occupational disease.  The 
 
            standard is clearly an industrial disability standard.  It 
 
            is not based upon functional physical impairment.  The Iowa 
 
            Supreme Court has stated, "Disability under Iowa Code 
 
            chapter 85A is determined by a consideration of age, 
 
            education, qualification, experience and inability, due to 
 
            injury, to engage in the employment for which the claimant 
 
            is fitted."  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 
 
            438 (Iowa 1984).  In the case McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181, 190 (Iowa 1980), the Iowa Supreme Court also 
 
            stated that the disability from occupational disease is to 
 
            be determined industrially.  In doing so, the Court stated, 
 
            "These reasons may not always be directly related to 
 
            functional impairment.  For example, a defendant-employer's 
 
            refusal to give any sort of work to a claimant after he 
 
            suffers his affliction may justify an award of disability.  
 
            . . . Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief should be granted."  The first 
 
            paragraph of Code section 85A.5 states, "All employees 
 
            subject to the provisions of this chapter who shall become 
 
            disabled from injurious exposure to an occupational disease 
 
            . . . shall receive compensation, reasonable surgical, 
 
            medical . . . as provided in the workers' compensation law 
 
            of Iowa except as otherwise provided in this chapter."  That 
 
            statutory provision has been relied upon in some agency 
 
            cases to state that the scheduled member system found in 
 
            section 85.34(2)(a) through (t) should be used to compensate 
 
            permanent partial disabilities which result from 
 
            occupational disease.  Those decisions, however, ignore the 
 
            last seven words in that first paragraph.  The second 
 
            paragraph of section 85A.5 and section 85A.4 clearly provide 
 
            the exceptions referred to.  The exception is that, if the 
 
            individual is able to continue working in the employment, 
 
            compensation for permanent partial disability is not paid 
 
            since the point of disablement has not been reached.  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Disablement, as found in section 85A.4 is clearly an 
 
            industrial disability standard.  If the scheduled member 
 
            system were to be applied, there would be cases where 
 
            permanent partial disability compensation was payable even 
 
            though the employee had not reached the point of 
 
            disablement.  It is totally illogical and contrary to the 
 
            beneficent purpose of the workers' compensation statutes to 
 
            impose a standard of requiring proof of industrial 
 
            disability through disablement before any recovery for 
 
            permanent partial disability can be obtained and then 
 
            compensate the disability according to the amount of 
 
            functional impairment under the scheduled member system.  
 
            The industrial disability standard for compensating 
 
            permanent disabilities clearly provides a recovery which is 
 
            more consistent with the loss that was actually sustained 
 
            than does the scheduled member system.  The scheduled member 
 
            system exists only for its simplicity.  If avoids the need 
 
            for determining the loss of earning capacity.  In a case 
 
            dealing with injury, the entire matter can be concluded 
 
            without determining loss of earning capacity.  In an 
 
            occupational disease case, however, it is necessary to prove 
 
            loss of earning capacity in order to establish disablement 
 
            under section 85A.4 before there can be a recovery.
 
            
 
                 It is therefore concluded that compensation for all 
 
            occupational diseases is determined industrially under Code 
 
            section 85.34(2)(u), rather than under the scheduled member 
 
            system found in Code section 85.34(2)(a) through (t).
 
            
 
                 In this case, it is determined that Suzanne Hoffman 
 
            suffers from one occupational disease, that being bilateral 
 
            overuse syndrome affecting her arms.  The first period of 
 
            disability which commenced August 15, 1986 did not result in 
 
            disablement as defined in section 85A.4 because she was able 
 
            to resume her employment without any loss of earnings.  The 
 
            second period of disability which commenced November 23, 
 
            1987 did result in disablement as defined in section 85A.4 
 
            because following recovery from the surgery, claimant was 
 
            actually incapacitated from performing her work and also 
 
            from earning equal wages in other employment because of the 
 
            occupational disease.  It was at that point that 
 
            compensation for permanent partial disability became 
 
            payable.
 
            
 
                 If claimant's condition had been treated as two 
 
            successive injuries, then she would have been entitled to 
 
            recover weekly compensation from the Second Injury Fund 
 
            based upon her loss of earning capacity, with some reduction 
 
            for scheduled member disability payments paid by the 
 
            employer and the compensable value of any previously 
 
            existing scheduled member disability.  When the "injury" 
 
            approach is used, the net effect is that the Second Injury 
 
            Fund of Iowa, rather than the employer, pays compensation 
 
            for the loss of earning capacity, despite the fact that the 
 
            entire loss was proximately caused by the employer.  It has 
 
            often been held that the intent of the Second Injury 
 
            Compensation Act is to encourage the hiring of the 
 
            handicapped.  Holding the Fund financially responsible for 
 
            occupational diseases contracted by a previously unimpaired 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            employee as a result of work performed for an employer has 
 
            no bearing whatsoever upon hiring the handicapped.  It 
 
            merely shifts the liability for paying for the results of 
 
            the occupational disease from the employer in whose employ 
 
            the disease was contracted to the Second Injury Fund of 
 
            Iowa.  It is also illogical to hold the Fund responsible for 
 
            paying benefits where the condition is actually an 
 
            occupational disease rather than an injury.  The Fund's 
 
            liability is conditioned upon the occurrence of an injury.  
 
            Iowa Code section 85.64.
 
            
 
                 The Second Injury Fund of Iowa pays benefits only in 
 
            cases which result from injury.  It has no liability to pay 
 
            benefits where the employee's loss of use of one of the 
 
            specified members is the result of an occupational disease, 
 
            rather than an injury.
 
            
 
                 The Second Injury Fund of Iowa has no liability to 
 
            Suzanne C. Hoffman in either of the cases now under 
 
            consideration.
 
            
 
                                      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 claimant including seventy-nine and 
 
            95/100 dollars ($79.95) for the deposition of Dr. DeBartolo 
 
            and the charges for the attendance of the court reporter at 
 
            the hearing conducted in this case, all pursuant to Division 
 
            of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            P.O. Box 679
 
            Mason City, Iowa  50401
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.40, 2203, 2209
 
                                               3202
 
                                               Filed August 10, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE C. HOFFMAN,           :
 
                                          :         File Nos. 831136
 
                 Claimant,                :                   869798
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :         D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1108.40, 2203, 2209, 3202
 
            The evidence introduced showed claimant's condition to be an 
 
            occupational disease under Chapter 85A and that the Second 
 
            Injury Fund has no liability to pay benefits for losses 
 
            resulting from occupational disease.  The claimant's 
 
            condition was an overuse syndrome which caused bilateral 
 
            radial nerve compression in her arms and left her with 
 
            permanent impairment affecting each arm.
 
            Analysis for determining whether a condition is an 
 
            occupational disease versus injury is to first determine if 
 
            it meets the definition of occupational disease.  If it 
 
            does, it is then excluded from injury under section 
 
            85.61(5)(b).  Since it is excluded, no benefits are payable 
 
            under the workers' compensation laws and the matter must 
 
            then be treated as an occupational disease.
 
            In making the analysis, it was pointed out that permanent 
 
            partial disability recovery for occupational disease is 
 
            always based upon loss of earning capacity or industrial 
 
            disability.