BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORRANCE J. DEAN,
 
         
 
              Claimant,                          File No. 832035
 
         
 
         vs.                                       A P P E A L
 
         
 
         FDL FOODS, INC.,                        D E C I S I O N
 
         
 
              Employer,                              F I L E D
 
              Self-Insured,
 
              Defendant.                            DEC 29 1989
 
         
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                 STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding permanent 
 
         partial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits A through P; and defendant's 
 
         exhibits 1 through 6.  Both parties filed briefs on appeal.
 
         
 
                                         ISSUES
 
         
 
              Defendant states the issues on appeal are:
 
         
 
              I.  The Hearing Officer abused his discretion in finding that 
 
              Claimant sustained his burden of proof that his injury arose out 
 
              of and in the course of employment because the only evidence of 
 
              the occurrence of a work-related injury is Claimant's testimony 
 
              and Claimant is not a credible witness.
 
         
 
              II.  The Hearing Officer abused his discretion in finding that 
 
              Claimant sustained his burden of proof that his injury arose out 
 
              of and in the course of employment because the opinion testimony 
 
              on causation by Dr. Field is insufficient to make a prima facie 
 
              case.
 
         
 
                                 REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed September 27, 1988 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                    APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are appropriate 
 
         to the issues and evidence.
 
                                                   
 
                                                            
 
         
 
                                  ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in the 
 
         arbitration decision is adopted.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant sustained a herniated L2-3 lumbar disc as a result 
 
         of lifting a stand that was stuck in a floor drain grate as part of 
 
         the duties of his employment at FDL Foods, Inc.
 
         
 
              2.  The injury occurred at Dubuque, Iowa on May 1, 1986.
 
         
 
              3.  Although defendant raised questions regarding claimant's 
 
         credibility, the undersigned finds claimant to be credible in all 
 
         relevant facts material to this action.
 
         
 
              4.  At the time of the hearing claimant was 39 years of age, 
 
         married and was entitled to three exemptions for income tax purposes.
 
         
 
              5.  Claimant's gross average weekly wage at the time of the 
 
         injury was $343.00.
 
         
 
              6.  All medical care that claimant received for his back was 
 
         proximately caused by the May 1, 1986 injury.
 
         
 
              7.  Claimant has a 15 percent permanent functional impairment.  
 
         He continues to experience pain, numbness and tingling as a result of 
 
         the injury.  He is restricted to a 20 pound lifting limit.
 
         
 
              8.  Most of claimant's work experience is in packinghouse work.
 
         
 
              9.  Claimant's level of intellectual functioning cannot be 
 
         accurately determined from the evidence presented, but based upon his 
 
         appearance and demeanor and in light of all the evidence in the 
 
         record, he does not appear to be well suited for academic pursuits or 
 
         intellectual activity.
 
         
 
              10.  The herniation of claimant's L2-3 disc is a new injury and 
 
         is not a direct outgrowth of his prior spinal fusion surgery.
 
         
 
              11.  Claimant has experienced a 20 percent loss of earning 
 
         capacity as a result of the May 1, 1986 injury.
 
         
 
                                   CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              Claimant sustained an injury to his back on May 1, 1986 which 
 
         arose out of and in the course of his employment with FDL Foods, Inc.
 
         
 
              The injury was a proximate cause of the permanent disability with 
 
         which claimant is presently afflicted.
 
                                                   
 
                                                            
 
         
 
              Claimant has a 20 percent permanent partial disability, in 
 
         industrial terms, as a result of the injury of May 1, 1986.
 
         
 
              Claimant is entitled to exemptions only for those persons who 
 
         were his dependents for purposes of income tax exemptions at the time 
 
         of the injury.  Accordingly, his exemptions are himself, his spouse 
 
         and his son.  They do not include his adult daughter and his 
 
         grandchild who resided with him, even though he contributed to their 
 
         support.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                         ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant one hundred (100) weeks of 
 
         compensation for permanent partial disability at the rate of two 
 
         hundred nineteen and 33/100 dollars ($219.33) per week commencing 
 
         February 23, 1987.
 
         
 
              That defendant receive credit for the overpayment of healing 
 
         period compensation, which amounts to two and 79/100 dollars ($2.79) 
 
         per week for the thirty-seven point eight (37.8) weeks which have been 
 
         paid, resulting in a total credit of one hundred five and 46/100 
 
         dollars ($105.46).
 
         
 
              That defendant pay all accrued amounts in a lump sum, together 
 
         with interest at the rate of ten percent (10%) per annum pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              That defendant pay claimant two hundred thirty-two and 00/100 
 
         dollars ($232.00) in section 85.27 benefits.
 
         
 
              That defendant pay the costs of this action including the 
 
         transcription of the hearing proceeding pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph P. Zwack
 
                                                   
 
                                                            
 
         Attorney at Law
 
         1890 John F. Kennedy Rd.
 
         Dubuque, Iowa. 52001
 
         
 
         Mr. James M. Heckmann
 
         Attorney at Law
 
         One Cycare Plaza, Ste. 216
 
         Dubuque, Iowa  52001
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                       
 
         DORRANCE J. DEAN,
 
         
 
              Claimant,                          File No. 832035
 
         
 
         vs.                                       A P P E A L
 
         
 
         FDL FOODS, INC.,                       D E C I S I O N
 
         
 
              Employer,                              F I L E D
 
              Self-Insured,
 
              Defendant.                            DEC 29 1989
 
         
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits A through P; and 
 
         defendant's exhibits 1 through 6.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the issues on appeal are:
 
         
 
              I.  The Hearing Officer abused his discretion in finding 
 
              that Claimant sustained his burden of proof that his injury 
 
              arose out of and in the course of employment because the 
 
              only evidence of the occurrence of a work-related injury is 
 
              Claimant's testimony and Claimant is not a credible witness.
 
              
 
              II.  The Hearing Officer abused his discretion in finding 
 
              that Claimant sustained his burden of proof that his injury 
 
              arose out of and in the course of employment because the 
 
              opinion testimony on causation by Dr. Field is insufficient 
 
              to make a prima facie case.
 
              
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed September 27, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained a herniated L2-3 lumbar disc as a 
 
         result of lifting a stand that was stuck in a floor drain grate 
 
         as part of the duties of his employment at FDL Foods, Inc.
 
         
 
              2.  The injury occurred at Dubuque, Iowa on May 1, 1986.
 
              
 
              3.  Although defendant raised questions regarding claimant's 
 
         credibility, the undersigned finds claimant to be credible in all 
 
         relevant facts material to this action.
 
         
 
              4.  At the time of the hearing claimant was 39 years of age, 
 
         married and was entitled to three exemptions for income tax 
 
         purposes.
 
              
 
              5.  Claimant's gross average weekly wage at the time of the 
 
         injury was $343.00.
 
              
 
              6.  All medical care that claimant received for his back was 
 
         proximately caused by the May 1, 1986 injury.
 
              
 
              7.  Claimant has a 15 percent permanent functional 
 
         impairment.  He continues to experience pain, numbness and 
 
         tingling as a result of the injury.  He is restricted to a 20 
 
         pound lifting limit.
 
         
 
              8.  Most of claimant's work experience is in packinghouse 
 
         work.
 
              
 
              9.  Claimant's level of intellectual functioning cannot be 
 
         accurately determined from the evidence presented, but based upon 
 
         his appearance and demeanor and in light of all the evidence in 
 
         the record, he does not appear to be well suited for academic 
 
         pursuits or intellectual activity.
 
              
 
              10.  The herniation of claimant's L2-3 disc is a new injury 
 
         and is not a direct outgrowth of his prior spinal fusion surgery.
 
         
 
              11.  Claimant has experienced a 20 percent loss of earning 
 
         capacity as a result of the May 1, 1986 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              Claimant sustained an injury to his back on May 1, 1986 
 
         which arose out of and in the course of his employment with FDL 
 
         Foods, Inc.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The injury was a proximate cause of the permanent disability 
 
         with which claimant is presently afflicted.
 
              
 
              Claimant has a 20 percent permanent partial disability, in 
 
         industrial terms, as a result of the injury of May 1, 1986.
 
              
 
              Claimant is entitled to exemptions only for those persons 
 
         who were his dependents for purposes of income tax exemptions at 
 
         the time of the injury.  Accordingly, his exemptions are himself, 
 
         his spouse and his son.  They do not include his adult daughter 
 
         and his grandchild who resided with him, even though he 
 
         contributed to their support.
 
              
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant one hundred (100) weeks of 
 
         compensation for permanent partial disability at the rate of two 
 
         hundred nineteen and 33/100 dollars ($219.33) per week commencing 
 
         February 23, 1987.
 
              
 
              That defendant receive credit for the overpayment of healing 
 
         period compensation, which amounts to two and 79/100 dollars 
 
         ($2.79) per week for the thirty-seven point eight (37.8) weeks 
 
         which have been paid, resulting in a total credit of one hundred 
 
         five and 46/100 dollars ($105.46).
 
              
 
              That defendant pay all accrued amounts in a lump sum, 
 
         together with interest at the rate of ten percent (10%) per annum 
 
         pursuant to Iowa Code section 85.30.
 
              
 
              That defendant pay claimant two hundred thirty-two and 
 
         00/100 dollars ($232.00) in section 85.27 benefits.
 
              
 
              That defendant pay the costs of this action including the 
 
         transcription of the hearing proceeding pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Copies To:
 
         
 
         Mr. Joseph P. Zwack
 
         Attorney at Law
 
         1890 John F. Kennedy Rd.
 
         Dubuque, Iowa. 52001
 
         
 
         Mr. James M. Heckmann
 
         Attorney at Law
 
         One Cycare Plaza, Ste. 216
 
         Dubuque, Iowa  52001
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
             
 
                  
 
                   
 
         
 
                                             5-2901
 
                                             Filed December 29, 1989
 
                                             David E. Linquist
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORRANCE J. DEAN,
 
         
 
              Claimant,                         File No. 832035
 
         
 
         vs.                                      A P P E A L
 
         
 
         FDL FOODS, INC.,                      D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         5-2901
 
         
 
              Affirmed deputy's award of benefits.  Defendant's arguments on 
 
         appeal that claimant's testimony concerning the injury was not 
 
         corroborated and that claimant was not credible, and that medical 
 
         testimony on causal connection was insufficient, were rejected.
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
                                             5-2901
 
                                             Filed December 29, 1989
 
                                             David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                       
 
         DORRANCE J. DEAN,
 
         
 
              Claimant,                         File No. 832035
 
         
 
         vs.                                      A P P E A L
 
         
 
         FDL FOODS, INC.,                       D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
              
 
              
 
              
 
         5-2901
 
         
 
              Affirmed deputy's award of benefits.  Defendant's arguments 
 
         on appeal that claimant's testimony concerning the injury was not 
 
         corroborated and that claimant was not credible, and that medical 
 
         testimony on causal connection was insufficient, were rejected.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORRANCE J. DEAN,
 
         
 
              Claimant,
 
                                                      File No. 832035
 
         vs.
 
                                                  A R B I T R A T I 0 N
 
         FDL FOODS, INC.,
 
                                                     D E C I S I 0 N
 
             Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Dorrance J. 
 
         Dean against FDL Foods, Inc., his self-insured employer.  The 
 
         case was heard and fully submitted on December 15, 1987 at 
 
         Dubuque, Iowa.  The record in the proceeding consists of 
 
         testimony from Dorrance J. Dean, Ed Furry, Sherry Dean and Thomas 
 
         Osterholz.  The record also contains claimant's exhibits A 
 
         through P and defendantOs exhibits 1 through 6.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he sustained an injury to his back on 
 
         May 1, 1986 and seeks compensation for healing period, permanent 
 
         partial disability and payment of medical expenses under Iowa 
 
         Code section 85.27.  The issues presented by the parties for 
 
         determination are whether claimant sustained an injury on May 1, 
 
         1986 which arose out of and in the course of employment; whether 
 
         any alleged injury is a cause of any temporary or permanent 
 
         disability; determination of the claimant's entitlement to 
 
         compensation for healing period; determination of the claimant's 
 
         entitlement to compensation for permanent partial disability; 
 
         and, determination of the claimant's entitlement to section 85.27 
 
         benefits.  The employer asserts that the claim is barred by lack 
 
         of notice under the provisions of section 85.23 of The Code.  It 
 
         was stipulated that the claimant had been paid 37.8 weeks of 
 
         compensation at the rate of $222.12 prior to hearing.  It was 
 
         further stipulated that the defendant is entitled to,credit under 
 
         section 85.38(2) for $1,800.00 of -sick pay and $10,806.45 in 
 
         medical/hospitalization expenses and that the $1,800.00 sick pay 
 
         credit has already been taken.  Defendant seeks to recover 
 
         $283.70 plus court reporter fees as costs.  It was further 
 
         stipulated that the rate of $222.12 per week is correct based 
 
         upon four exemptions, but that an issue exists as to whether 
 
         claimant was entitled to three or four exemptions and that, if 
 
         three is the correct number, the rate should be reduced 
 
         accordingly.  The claimant seeks $232.00 in section 85.27 
 
         benefits.  The employer defends the claim on the basis of 
 
         liability and proximate cause.
 
         
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   2
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Dorrance J. Dean is a 39-year-old, married man who lives at 
 
         Keeler, Wisconsin and has been employed at FDL Foods, Inc., in 
 
         Dubuque, Iowa since May, 1982.  He had previously worked for 
 
         Dubuque Pack, the predecessor of FDL Foods, since 1966.  Claimant 
 
         testified that, in May of 1986, he had a 5-year-old son who lived 
 
         with him.  He testified that a 19-year-old daughter and her child 
 
         also resided with him.  Claimant testified that he supported the 
 
         daughter and grandchild, but did not claim them as dependents on 
 
         his income tax returns.
 
         
 
              Dorrance J. Dean testified that he had spinal fusion of the 
 
         L4 through Sl levels in 1975 from which he had a good recovery, 
 
         but that he had had no back problems and was in good physical 
 
         condition immediately prior to May 1, 1986.  Claimant stated that 
 
         he had been examined by the company physician, L. C. Faber, M.D., 
 
         when he commenced employment with FDL Foods in 1982 (exhibit K).
 
         
 
              Claimant testified that, on May 1, 1986, he had come in 
 
         early in order to set up the injector machine for the day's 
 
         production run.  Claimant testified that, while moving a stand in 
 
         order to be able to reach into the machine, one of the legs of 
 
         the stand caught in a drain grate and that, as he lifted it, he 
 
         felt a sharp pain in his back.  Claimant estimated the stand 
 
         itself to weigh approximately 100 pounds.  Claimant testified 
 
         that his back was hurting like crazy, but that no one else was 
 
         available to set up the machine so he completed the task.  
 
         Claimant testified that when production started he worked on the 
 
         line next to a co-worker, Ed Furry, that he mentioned his pain to 
 
         Furry, that he reported it to his foreman, Mike Rooney, and that 
 
         Rooney took his place on the line while claimant went to the 
 
         nurse at the first aid department.
 
         
 
              Claimant testified that he told hie nurse what had happened 
 
         and that exhibit C, the nurse's notes, accurately reflect the 
 
         events of that morning.  Claimant testified that Dr. Faber came 
 
         to the medical office, examined him, told him he had some pulled 
 
         muscles, gave him medications and had him rest on a cot for a 
 
         couple of hours with crushed ice on his back.  Claimant stated 
 
         that he tried to go back to work after lunch.
 
         
 
              Claimant testified that he worked the following day with 
 
         pain, but that, on the second day, he again went to first aid for 
 
         pain pills (exhibit C).  Claimant related that, on the following 
 
         days, he made repeated visits to see the nurse, but continued to 
 
         report for work until the time of his scheduled vacation.  
 
         Claimant related that, while he was on vacation, his back 
 
         bothered so much that he was unable to fish from a boat and that 
 
         he simply laid around a lot.  Claimant stated that he returned to 
 
         work from vacation on the Tuesday following Memorial Day and 
 
         that, a day or two later, he again went to first aid for pain 
 

 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   3
 
         
 
         pills, was seen by Dr. Faber and was sent to Finley Hospital for 
 
         a CT scan on May 29.  Exhibit I is the report from that test.  
 
         The history on the report indicates that an injury occurred while 
 
         lifting at work one month earlier.  The report addresses the 
 
         spinal levels of L3-4 through L5-Sl and found mild to moderate 
 
         stenosis at L3 through L5 (exhibit I).  Claimant testified that, 
 
         when at the hospital, the nurse explained to him that Dr. Faber 
 
         had directed them to concentrate the test in the area of his 
 
         prior injury.  Claimant stated that while at work the following 
 
         day he was informed that the results of the test showed.narrowing 
 
         at the area of his prior surgery, that.it was not work-related 
 
         and that he would have to seek treatment from his own physician.
 
         
 
              Claimant testified that, on May 30, 1986, he saw David S. 
 
         Field, M.D., an orthopaedic surgeon.  Claimant testified that he 
 
         gave the doctorOs nurse a history of what had happened and that 
 
         Dr. Field examined him and reviewed the CT scan reports.  
 
         Claimant related that he was treated with physical therapy, but 
 
         did not improve and that, when he returned, Dr. Field arranged 
 
         for a myelogram and CT scan to be performed at Mercy Hospital in 
 
         mid-June.  Claimant testified that, up to the time he entered 
 
         Mercy Hospital, he assumed that his condition was not 
 
         work-related and that it was not covered by workers' compensation 
 
         because Dr. Faber had told him it was not work-related.
 
         
 
              Dr. Field's office notes of May 31, 1986 indicate that 
 
         claimant began experiencing back pain four or five months prior 
 
         to the date of the appointment (exhibit H, page 3).  Dr. Field 
 
         indicated that the history contained in his office notes could be 
 
         inaccurate (exhibit 0, page 12).  Dr. Field also indicated, 
 
         however, that it is his custom to ask a patient if they can 
 
         relate the problem to a specific incident and claimant did not 
 
         (exhibit 0, pages 27-33).
 
         
 
              Claimant stated that he told Dr. Field's nurse he had hurt 
 
         his back tour or five weeks ago.   Claimant specifically denied 
 
         telling anyone that he had injured his back four or five months 
 
         prior to the day he saw Dr. Field.
 
         
 
              Claimant testified that, while he was in Mercy Hospital in 
 
         June, a neurologist consulted and that, in July, he had 
 
         additional myelogram and CT scan tests.  The tests indicated that 
 
         claimant had a herniated lumbar disc at the L2-3 level (exhibit 
 
         E, pages 3, 10 and 11; exhibit F, pages 13-16).
 
         
 
              At claimant's request, Dr. Field issued a letter to FDL 
 
         Foods explaining that claimant's current herniated disc is a new 
 
         injury (exhibit B).  Claimant testified that he delivered the 
 
         letter to Tom, at FDL Foods, and was told that his injury was not 
 
         covered by workers' compensation.
 
         
 
              Claimant was again admitted to Mercy Hospital on August 2, 
 
         1986, underwent a lumbar laminectomy with removal of the L2 
 
         lamina and the L2-3 herniated disc (exhibit G, page 2).
 
         
 
              Claimant testified that, following surgery, he was released 
 
         to attempt,a return to work in November with a 20-pound lifting 
 
         restriction.  He stated that he worked for two and one-half days, 
 
         but experienced pain and numbness in his thigh and was sent home. 
 
          Claimant finally returned to work in February, 1987 with a 
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   4
 
         
 
         20-pound lifting restriction.  Dr. Field made the restriction 
 
         permanent (exhibit N).
 
         
 
              Claimant testified that his back still bothers.  He stated 
 
         that he has no leg pain, but does experience numbness and 
 
         tingling in his thigh.  Claimant stated that he has lost a lot of 
 
         overtime due to the restrictions that have been placed upon him.  
 
         He stated that he has inquired about getting the restrictions 
 
         removed since he had at times been assigned to perform work that 
 
         exceeded the restrictions.  Claimant stated that he currently has 
 
         a job referred to as "power jeeping" in which he hauls loads away 
 
         from the cut floor.   Claimant stated that he bid on it when it 
 
         became vacant because he felt that it would be easier.  He stated 
 
         that it pays less per hour than his former job and that he is 
 
         still in the qualifying process.
 
         
 
              Claimant stated that, since this injury, he has been unable 
 
         to shovel snow, play catch with a football, bend and twist, bowl, 
 
         remodel his home or go backpacking with the Boy Scouts, all of 
 
         which are things he was able to do after the 1975 surgery and 
 
         prior to the 1986 injury.
 
         
 
              Claimant testified that he had an appointment with Dr. Field 
 
         which had originally been scheduled for March 9, 1987 at 1:00 or 
 
         1;30, but that it was rescheduled to March 16 at 3:30 p.m.  
 
         Claimant testified that he mistakenly thought the March 16 
 
         appointment was at 1:30 p.m. as had been his prior appointments 
 
         and that he accordingly left work at approximately 11:30 a.m. in 
 
         order to attend the appointment.  Claimant testified the he 
 
         initially tried to conceal his mistake from the employer out of a 
 
         fear of receiving disciplinary action, but that, during the 
 
         course of the employer's investigation of the incident, he 
 
         admitted his attempt to conceal the mistake.  Tom Osterholz 
 
         testified that claimant was disciplined for making the mistake 
 
         and also for making false statements in an attempt to conceal the 
 
         mistake.  Claimant was initially suspended indefinitely, but this 
 
         was changed to a 33-day unpaid suspension with a one-year 
 
         probation.
 
         
 
              Ed Furry, presently a foreman at FDL Foods, Inc., recalled a 
 
         day when claimant mentioned that he had hurt his back, went to 
 
         first aid and was gone for most of the morning while foreman, 
 
         Mike Rooney, filled in.  Furry testified that he had bowled with 
 
         claimant on the same team until the 1985-86 season and that, 
 
         prior to that time, he had never noticed claimant to have any 
 
         physical problems, either at bowling or at work.
 
         
 
              Sherry Dean, claimant's wife, testified that claimant had no 
 
         back problems following his recovery from the 1975 surgery until 
 
         May 1, 1986 when claimant came to the place where she was 
 
         working, appeared to be in pain, complained of pain and told her 
 
         about experiencing sharp pain when pulling on a stand at work.  
 
         Mrs. Dean denied the occurrence of any injury to claimant four 
 
         months prior to May 1, 1986.
 
         
 
              Mrs. Dean testified that claimant now has problems doing 
 
         things and has restricted many of his activities.  She stated 
 
         that he is stiff when he gets up in the mornings, does little 
 
         after supper at night and takes aspirin frequently.
 
         
 

 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   5
 
         
 
              Thomas Osterholz, the safety, security and workers' 
 
         compensation manager at FDL Foods, testified in detail about the 
 
         disciplinary action against claimant reflected in exhibit 1. 
 
         Osterholz testified that claimant's current job is in "service 
 
         and supply" and is within the restrictions imposed by Dr. Field.  
 
         Osterholz stated that claimant's prior job and current job are 
 
         both grade 2, but that there is a 10-cent per hour difference in 
 
         pay.
 
         
 
              Osterholz testified that he is familiar with the jobs in the 
 
         plant and that there are 220 or 230 different job 
 
         classifications, of which 150 or 160 tall within the 20-pound 
 
         weight restriction.  Osterholz stated that jobs at the plant are 
 
         filled on the basis of seniority, that claimant is number 674 and 
 
         that he is in the upper half of the seniority list.
 
         
 
              David S. Field, M.D., an orthopaedic-surgeon, testified by 
 
         way of deposition, exhibit 0.  Dr. Field stated that he diagnosed 
 
         claimant as having a herniated disc space between the second and 
 
         third lumbar discs. he stated that claimant also has minimal 
 
         spinal stenosis which is from the 1975 fusion surgery which still 
 
         presents a potential problem (exhibit 0, pages 7 and 8).
 
         
 
              Dr. Field stated that a history of lifting a stand that was 
 
         in a grate accompanied by the onset of pain, as shown in the FDL 
 
         records, could cause the problem for which he treated the 
 
         claimant (exhibit 0, pages 26 and 27).  Dr. Field further stated 
 
         that, if claimant had no back pain prior to May 1, 1986 and then 
 
         experienced leg pain while lifting, it is probable that the disc 
 
         problem and the pain are related (exhibit 0, pages 35 and 36).  
 
         Dr. Field stated that, if claimant had the disc problem three or 
 
         four months prior to May, 1986, claimant would have had pain 
 
         during that time (exhibit 0, page 28).
 
         
 
              Dr. Field has rated claimant as having a 15% permanent 
 
         partial impairment of the whole body based upon the recent injury 
 
         and L2-3 lumbar disc surgery (exhibit A; exhibit 0, pages 13-16). 
 
         He indicated that he has placed a 20-pound restriction upon 
 
         claimant in order to reduce the stress and potential for further 
 
         injury to his back (exhibit 0, pages 18 and 19).
 
         
 
              On November 14, 1986, claimant was convicted, by default for 
 
         lack of appearance, of theft by writing a check on an account 
 
         which had been closed.  He was sentenced to a fine and fees in 
 
         the amount of $130.00, an amount equal to the bond he had posted. 
 
          The date of the offense was February 7, 1985 and his court 
 
         appearance had been scheduled for May 13, 1985 (exhibit 4).
 
         
 
              On June 13, 1986, claimant made claim for accident and 
 
         sickness benefits and indicated that his sickness or injury did 
 
         not arise out of his employment (exhibit 5).
 
         
 
              Exhibits 2 and 3 corroborate the payment of compensation 
 
         stipulated to by the parties in the pre-hearing report.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 1, 1986 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   6
 
         
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              ClaimantOs appearance and demeanor were observed as he 
 
         testified as was the appearance and demeanor of the other 
 
         witnesses.  Claimant's testimony was considered in light of the 
 
         other evidence in the record, including his theft conviction, the 
 
         accident and sickness benefit claim, the misrepresentation 
 
         concerning the missed scheduled appointment, claimantOs denial of 
 
         criminal charges, other than traffic, at the time of his 
 
         deposition and also of claimantOs conviction for unlawful receipt 
 
         of two weeks of unemployment benefits.  Claimant's claim of 
 
         injury on May 1, 1986 is, however, corroborated by his report of 
 
         the incident to the plant nurse, his co-worker, Ed Furry, the 
 
         reports issued by Dr. Faber (exhibit J) aria the Finley hospital 
 
         records.  Claimant is found to be a fully credible witness.
 
         
 
              Claimant did not appear to be adept at intellectual 
 
         pursuits.  All three incidents which have been used as the basis 
 
         for discrediting his testimony are matters which could easily 
 
         have started as an honest mistake followed by a lack of knowledge 
 
         or judgment with regard to correcting the mistake.  Claimant's 
 
         fear of disciplinary action for the mistake regarding the 
 
         scheduled time for his medical appointment certainly appears to 
 
         have been warranted since Osterholz testified that the mistake 
 
         itself was part of the basis for the suspension that was imposed.  
 
         In view of the seemingly insignificant consequences of the 
 
         unemployment and dishonored check convictions, it is easily 
 
         conceivable that claimant would not have recalled them at the 
 
         time of his deposition.  Accordingly, it is found that Dorrance 
 
         J. Dean injured his back on May 1, 1986 while lifting a stand 
 
         which was caught in a floor drain grate.
 
         
 
              Based on the evidence from Dr. Field, it is found that the 
 
         injury was herniation of the claimant's L2-3 lumbar disc and that 
 
         it was successfully treated by a lumbar laminectomy and disc 
 
         excision surgery.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 1, 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. 0. 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).
 
         
 
              Dr. Field testified that the herniated disc could possibly 
 
         result from an activity such as lifting of the type that has been 
 
         found to have occurred.  He further stated it is probable that, 
 
         if claimant had no pain prior to that incident, that incident 
 
         caused the pain and the ruptured disc.  Dr. Field's testimony in 
 
         this regard is accepted as correct.  Any evidence of diagnosis or 
 
         causation from Dr. Faber in the record of this case is rejected 
 
         since he had no involvement in the claimant's evaluation or 
 
         treatment subsequent to the time the actual injury, the L2-3 disc 
 
         herniation, was diagnosed.  Dr. Faber's assessment of the case 
 
         relating claimant's condition as simply an outgrowth of his 1975 
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   7
 
         
 
         fusion surgery is rejected.
 
         
 
              The entry of onset of claimant's symptoms four to five 
 
         months prior to the time he saw Dr. Field is specifically found 
 
         to be an error and the correct time sequence is four to five 
 
         weeks.
 
         
 
              The parties stipulated to the extent of claimant's healing 
 
         period entitlement as running from June 26, 1986 through February 
 
         22, 1987 and that it had been fully paid.
 
         
 
              The only issue with regard to the medical expenses which 
 
         claimant seeks to recover is identified as causal connection.  
 
         Since claimant's back condition has been found to be 
 
         work-related, the expenses of $232.00 which are unpaid are 
 
         determined to be the responsibility of the employer.
 
         
 
              The records clearly show that the claimant notified the 
 
         plant nurse of his injury on May 1, 1986, the day it occurred.  
 
         Accordingly, the defense of lack of notice under section 85.23 
 
         fails.
 
         
 
              If 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 
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   8
 
         
 
         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, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              With a preexisting fusion and the current injury, Dorrance 
 
         J. Dean has a very substantial impairment of his spine.  If he 
 
         were forced to seek employment with a new employer, his loss of 
 
         earnings and earning capacity would be fully manifested and it 
 
         would probably be well in excess of the 30% permanent partial 
 
         disability rating which claimant seeks to recover in this case.  
 
         Claimant has not suffered any major reduction in actual earnings, 
 
         however, due to the employerOs retention of his employment.  
 
         Actual earnings, though not synonymous with earning capacity, are 
 
         presumptive evidence of earning capacity.  Impairment of physical 
 
         capacity raises an inference of lessened earning capacity.  The 
 
         basic element, however, is the reduction in value of the general 
 
         earning capacity of the person rather than the loss of wages or 
 
         earnings in any specific job or occupation.  Holmquist v. 
 
         Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) 100 
 
         A.L.R.3d 143; 2 Larson Workmen's Compensation Law, sections 57.21 
 
         and 57.31; Hankins v. Phil Hunget d/ a Friends and Neighbors 
 
         Supper Club, II Iowa Industrial Commissioner Report, 181 (1981); 
 
         Michael v. Harrison County, 34th Biennial Report, Iowa Industrial 
 
         Commissioner, 218 (1979).  Assessment of disability must be made 
 
         in this case without a detailed knowledge of claimant's 
 
         educational background or work history other than with this 
 
         employer and its predecessor.  Based upon claimant's age and the 
 
         fact that he commenced employment with Dubuque Pack in 1966, 
 
         packinghouse work apparently constitutes the major part of his 
 
         employment history.  It is determined that claimant has sustained 
 
         a 20% permanent partial disability, when evaluated industrially, 
 
         as a result of the injuries he sustained on May 1, 1986.
 
         
 
              The rate of compensation is based upon spendable weekly 
 
         earnings, the amount that remains after payroll taxes are 
 
         deducted from gross earnings.  Payroll taxes are an amount equal 
 
         to the amount which would be withheld pursuant to withholding 
 
         tables in effect as though the employee had elected to claim the 
 
         maximum number of exemptions for actual dependency to which the 
 
         employee.is entitled on the date on which the employee was 
 
         injured. Iowa Code sections 85.61(10) and (11).  He did not claim 
 
         his daughter and grandchild as dependents for income tax 
 
         purposes.  Accordingly, claimant is entitled to only three 
 
         exemptions rather than four.  Based upon four exemptions, a 
 
         compensation rate of $222.12 per week reflects an average gross 
 
         weekly wage of $343.00. Based upon three exemptions and a gross 
 
         weekly wage of $343.00, claimant's compensation rate is 
 
         determined to be $219.33 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Dorrance J. Dean sustained a herniated L2-3 lumbar disc 
 
         as a result of lifting a stand that was stuck in a floor drain 
 
         grate as part of the duties of his employment at FDL Foods, Inc.
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE   9
 
         
 
         
 
              2.  The injury occurred at Dubuque, Iowa on May 1, 1986.
 
         
 
              3.  Claimant is a fully credible witness.
 
         
 
              4.  Claimant is 39 years of age, married and was entitled to 
 
         three exemptions for income tax purposes at the time of injury.
 
         
 
              5.  Claimant's gross average weekly wage at the time of 
 
         injury was $343.00.
 
         
 
              6.  All medical care that claimant received for his back was 
 
         proximately caused by the May 1, 1986 injury.
 
         
 
              7.  Claimant has a 15% permanent functional impairment.  He 
 
         continues to experience pain, numbness and tingling as a result 
 
         of the injury.  He is restricted to a 20 pound lifting limit.
 
         
 
              8.  Most of claimant's work experience is in packinghouse 
 
         work.
 
         
 
              9.  Claimant's level of intellectual functioning cannot be 
 
         accurately determined from the evidence presented, but based upon 
 
         his appearance and demeanor and in light of all the evidence in 
 
         the record, he aces not appear to be well suited for academic 
 
         pursuits or intellectual activity.
 
         
 
             10.  The herniation of claimant's L2-3 disc is a new injury 
 
         and is not a direct outgrowth of his prior spinal fusion 
 
         surgery.
 
         
 
              11.  Claimant has experienced a 20% loss of earning capacity 
 
         as a result of the May 1, 1986 injury.
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant sustained an injury to his back on May 1, 1986 
 
         which arose out of and in the course of his employment with FDL 
 
         Foods, Inc.
 
         
 
              3.  The injury was a proximate cause of the permanent 
 
         disability with which claimant is presently afflicted.
 
         
 
              4.  Claimant has a 20% permanent partial disability, in 
 
         industrial terms, as a result of the injury of May 1, 1986.
 
         
 
              5.  Claimant is entitled to exemptions only for those 
 
         persons who were his dependents for purposes of income tax 
 
         exemptions at the time of injury.  Accordingly, his exemptions 
 
         are himself, his spouse and his son.  They do not include his 
 
         adult daughter and his grandchild who resided with him, even 
 
         though he contributed to their support.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant one 
 
         hundred (100) weeks of compensation for permanent partial 
 

 
         
 
         
 
         
 
         DEAN V. FDL FOODS, INC.
 
         PAGE  10
 
         
 
         disability at the rate of two hundred nineteen and 33/100 dollars 
 
         ($219.33) per week commencing February 23, 1987.
 
         
 
              IT IS FURTHER ORDERED that defendant receive credit for the 
 
         overpayment of healing period compensation, which amounts to two 
 
         and 79/100 dollars ($2.79) per week for the thirty-seven point 
 
         eight (37.8) weeks which have been paid, resulting in.a total 
 
         credit of one hundred five and 46/100 dollars ($105.46).
 
         
 
              IT IS FURTHER ORDERED that defendant pay ail accrued amounts 
 
         in a lump sum, together with interest at the rate of ten percent 
 
         (10%) per annum pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant two 
 
         hundred thirty-two and 00/100 dollars ($232.00) in section 85.27 
 
         benefits.
 
         
 
              IT IS FURTHER ORDERED that defendant pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendant file Claim, Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 27th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Joseph P. Zwack
 
         Attorney at Law
 
         1890 John F. Kennedy Road
 
         Dubuque, Iowa 52001
 
         
 
         Mr. James M.. Heckmann
 
         Attorney at Law
 
         One CyCare Plaza
 
         Suite 216
 
         Dubuque, Iowa 52001
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1402.30, 1803, 3002
 
                                              Filed September 27, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORRANCE J. DEAN,
 
         
 
              Claimant,
 
                                                  File No. 832035
 
         vs.
 
                                               A R B I T R A T I O N
 
         FDL FOODS, INC.,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.30, 1803, 3002
 
         
 
              The controlling issue in the case was claimant's 
 
         credibility.  He was found to be a fully credible witness based 
 
         upon his appearance and demeanor when his criminal convictions 
 
         and misrepresentation to the employer were considered in light of 
 
         all the other evidence in the case.  It was determined that he 
 
         did sustain an injury which arose out of and in the course of his 
 
         employment as he alleged.  Claimant, with a preexisting spinal 
 
         fusion at the L4-Sl levels was awarded 20% permanent partial 
 
         disability as a result of a herniated disc at the L2-3 level 
 
         which was surgically excised with a reasonably good result.  
 
         Claimant has some residual symptoms of pain in his back and 
 
         numbness and tingling in his leg.  He remained employed by the 
 
         employer, but had a 20-pound restriction which caused him to bid 
 
         into a job which paid slightly less than his prior job and which 
 
         also reduced the amount of overtime he could work.  Claimant 
 
         awarded 20% permanent partial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN A COOPER,
 
         
 
              Claimant,
 
         
 
         vs.                                      File No. 832043
 
         
 
         IOWA MEAT PROCESSING,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         JOHN MORRELL & COMPANY,
 
         
 
              Employer,                            File No. 832042
 
         
 
         and                                    A R B I T R A T I O N
 
         
 
         NATIONAL UNION FIRE INSURANCE             D E C I S I O N
 
         COMPANY
 
         
 
              Insurance Carrier,                      F I L E D
 
         
 
         and                                         MAY 19 1988
 
         
 
         SECOND INJURY FUND OF IOWA,         IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Steven A. 
 
         Cooper, claimant, against (1) Iowa Meat Processing Company, 
 
         employer, and Chubb Group of Insurance Companies, insurance 
 
         carrier, for benefits as a result of an injury which occurred on 
 
         October 4, 1985 (file no. 832043); (2) also against John Morrell 
 
         and Company, employer, and National Union Fire Insurance Company, 
 
         insurance carrier, for benefits as a result of an injury that 
 
         occurred on August 3, 1986 (file no. 832042) and (3) also against 
 
         the Second Injury Fund of Iowa.  A hearing was held in Sioux 
 
         City, Iowa on January 27, 1988 and the case was fully submitted 
 
         at the close of the hearing.  The record consists of the 
 
         testimony of Steven A. Cooper and Joint Exhibits A through E.  
 
         All four attorneys submitted excellent briefs.
 
                                                
 
                                                         
 
         
 
                          PRELIMINARY INFORMATION
 
         
 
              Claimant performed the same job at the same location at all 
 
         times in this case.  At the time of the injury on October 4, 1985 
 
         (file no. 832043),claimant was employed by Iowa Meat Processing 
 
         (Iowa Meat) and this employer was insured by Chubb Group of 
 
         Insurance Companies (Chubb Group).  On February 1, 1986, the 
 
         insurance coverage changed to National Union Fire Insurance 
 
         Company from Chubb Group of Insurance Companies.  On March 1, 
 
         1986, the employer changed to John Morrell and Company (John 
 
         Morrell) from Iowa Meat Processing.  Therefore, at the time of 
 
         the injury on August 3, 1986 (file no. 832042), claimant was 
 
         employed by John Morrell and Company who was then insured by 
 
         National Union Fire Insurance Company.
 
         
 
                               STIPULATIONS I
 
         
 
              All of the parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of each of these respective 
 
         injuries; and
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $244.22 for the injury of October 4, 1985 and $243.28 for the 
 
         injury of August 3, 1986.
 
         
 
                               STIPULATIONS II
 
         
 
              Claimant, Iowa Meat, Chubb Group, John Morrell and National 
 
         Union Fire stipulated to the following matters:
 
         
 
              That claimant sustained injuries on October 4, 1985 and on 
 
         August 3, 1986 which arose out of and in the course of his 
 
         employment with the respective employers;
 
         
 
              That claimant missed three days of work due to the injury of 
 
         October 4, 1985 and that claimant was not entitled to any 
 
         disability benefits for this period of time;
 
         
 
              That claimant missed seven days of work due to the injury of 
 
         August 3, 1986 and was paid 4/7 weeks of workers' compensation 
 
         benefits for this period of time;
 
         
 
              That claimant's entitlement to temporary disability benefits 
 
         is not an issue in dispute in this case at this time with respect 
 
         to either injury;
 
         
 
              That the type of permanent disability due to the injury of 
 
         October 4, 1985, if the injury is found to be a cause of 
 
         permanent disability, is scheduled member disability to the right 
 
         hand;
 
         
 
              That the injury of August 3, 1986 was the cause of some 
 
                                                
 
                                                         
 
         permanent disability;
 
         
 
              That the type of permanent disability due to the injury of 
 
         August 3, 1986 is scheduled member disability to the right and 
 
         left hands;
 
         
 
              That with respect to both injury dates, claimant's 
 
         entitlement to medical benefits has been paid and medical 
 
         benefits are no longer in dispute;
 
         
 
              That neither employer nor insurance carrier claim a credit 
 
         under Iowa Code section 85.38(2) for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan;
 
         
 
              That defendants, Iowa Meat and Chubb Group, make no claim 
 
         for credit for workers' compensation benefits paid prior to 
 
         hearing;
 
         
 
              That defendants, John Morrell and National Union Fire, have 
 
         paid 4/7 weeks of temporary disability benefits and 25 weeks of 
 
         permanent partial disability benefits at the rate of $243.28 per 
 
         week prior to hearing and are entitled to a credit for the amount 
 
         of permanent partial disability benefits which have already been 
 
         paid; and
 
         
 
              That there are no bifurcated claims.
 
                                        
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury of October 4, 1985 was the cause of any 
 
         permanent disability;
 
         
 
              Whether claimant is entitled to any permanent disability 
 
         benefits as the result of the injury of October 4, 1985;
 
         
 
              Determination of claimant's entitlement to permanent 
 
         disability benefits as the result of the injury of August 3, 
 
         1986;
 
         
 
              Whether claimant is entitled to recover any benefits from 
 
         the Second Injury Fund of Iowa.  In order to find liability 
 
         against Second Injury Fund of Iowa it would require a 
 
         determination that claimant sustained an injury on October 4, 
 
         1985 and August 3, 1986 and that each of these injuries was the 
 
         cause of permanent disability, because the Second Injury Fund did 
 
         not join in these stipulations as the other defendants have 
 
         done;
 
         
 
              Whether defendants John Morrell and Company and National 
 
         Union Fire Insurance Company have over paid claimant for the 
 
         injury of August 3, 1986; and
 
         
 
                                                
 
                                                         
 
              Whether defendants John Morrell and Company and National 
 
         Union Fire Insurance Company are entitled to a contribution from 
 
         Iowa Beef Processing and Chubb Group of Insurance Companies.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence:
 
         
 
              Claimant was born on January 9, 1955 and is a life-long 
 
         resident of Sioux City, Iowa.  He was 33 years old at the time of 
 
         the hearing, divorced and the father of three dependant children 
 
         that he supports.  Claimant graduated from high school in 1973 as 
 
         a D student.  He studied auto mechanics and welding in the 
 
         eleventh grade but never used these skills.  He has not acquired 
 
         any additional education or training after high school.
 
         
 
              Claimant started to work at this meat packing plant when it 
 
         was Iowa Meat Processing on September 1, 1981.  He had worked 
 
         there continuously until the strike,which occurred on March 9, 
 
         1987, against the current employer, John Morrell and Company. 
 
         After the strike, claimant worked one day dumping garbage into a 
 
         truck for a waste products company in the middle of the summer 
 
         (1987) at $3.35 per hour but was unable to continue to do this 
 
         job longer than one day because it hurt his hands.  He has also 
 
 
 
                            
 
                                                         
 
         worked part-time since August of 1987, when work has been 
 
         available, for a tire company, ten to 25 hours per week at $5.00 
 
         per hour unloading and stacking tractor and truck tires.
 
         
 
              Claimant's past employments were manual labor jobs such as 
 
         washing dishes, picking bricks out of an oven, stacking lumber 
 
         and janitor work.  After graduation from high school in 1973, 
 
         claimant performed general labor jobs assigned to him through the 
 
         labor union hall until he started to work in the packing house in 
 
         1981. Typical general labor jobs performed included digging 
 
         ditches, puddling concrete, pouring concrete, sweeping floors, 
 
         operating a jack hammer or ground pounder and other general labor 
 
         work.
 
         
 
              After claimant began employment for employer, Iowa Meat, on 
 
         September 1, 1981, he worked two weeks feeding the fire, working 
 
         in offal and working in the cooler.  After that he worked five 
 
         years separating the black gut from the small gut.  This job is 
 
         also described as the chitterling job.  This job requires 
 
         repetitive use of his hands.  His right hand is his dominant 
 
         hand. He wore cotton and nylon gloves furnished by employer.  
 
         This is a standing up job.  The guts come down the line in a 
 
         tray.  They weigh about five pounds.  They are difficult to 
 
         handle because they are wet and mixed with blood and manure.  His 
 
         job was to pick up the black gut, which is the large gut, with 
 
         the right hand and the small gut in the left hand; break the cord 
 
         that binds them together by a pulling action with his right hand; 
 
         pull them apart; and then send the parts in different directions.  
 
         The large gut or black gut is thrown into a shute approximately 
 
         two feet away.  The small gut is placed back into the tray and 
 
         sent down the conveyor line.  Claimant testified that it requires 
 
         a hard pulling action to separate the guts and it usually 
 
         required at least two pulls to pull them apart completely.
 
         
 
              On October 4, 1985, claimant felt a tingling and burning 
 
         sensation in his right hand, aching in his right wrist and the 
 
         ends of his fingers were numb.  He testified that it had been 
 
         gradually coming on for some time but that this was the first 
 
         time that he went to the nurse.  Claimant denied that he had any 
 
         symptoms or problems with his left hand on October 4, 1985.  He 
 
         stated that he had pain in his right hand when he worked during 
 
         the day.  At night his right hand would burn, swell up and ache.
 
         
 
              Claimant was sent to see Daniel M. Rhodes, M.D., at 
 
         Morningside Clinic.  Claimant was given medications, a wrist 
 
         splint and told to soak his hand in ice at night.  The doctor 
 
         prescribed light duty.  Claimant testified that there are no 
 
         light duty jobs in the packing house.  Claimant stated that he 
 
         always returned to doing his regular job when the doctor 
 
         prescribed light duty.  Claimant maintained that if he 
 
         complained, he might get off for a few hours or so.  Sometimes he 
 
         would call in sick if he could not stand another day of 
 
         suffering.  He received no more medical treatment for the right 
 
         hand after March of 1986 because the plant nurse said he did not 
 
         need it.  Claimant alleged however, that the right hand did not 
 
                                                
 
                                                         
 
         clear up but to the contrary, it only continues to get worse.  
 
         Claimant emphasized that the pain in his right hand has never 
 
         lessened since it began.  He stressed several times that it has 
 
         only become progressively worse. Claimant stated that the metal 
 
         wrist splint cut into his hand and so he did not use it very 
 
         much.
 
         
 
              In the spring of 1986, claimant said that he began to use 
 
         his left hand to do the jobs that he usually did with his right 
 
         hand in order to reduce the pain in his right hand.  Claimant 
 
         said that approximately six months after his last visit to the 
 
         Morningside Clinic for his right hand, which was in March of 
 
         1986, he then began to experience problems with his left hand.  
 
         He had the same problems in the left hand that he had in the 
 
         right hand of burning, tingling, numbness and the wrist ached.  
 
         This time claimant was sent to see Milton D. Grossman, M.D., and 
 
         William M. Krigsten, M.D.  Claimant stated that he had pain in 
 
         both his right hand and his left hand in August of 1986.
 
         
 
              Claimant testified that in December of 1986, he finally had 
 
         sufficient seniority to bid a different job and get it.  The new 
 
         job was pulling lace fat or gall fat from the stomach.  Claimant 
 
         testified that pulling lace fat is much easier than the 
 
         chitterling job of separating guts.  Lace lard does not require a 
 
         hard grip.  Instead you can work the fat off easily.  Claimant 
 
         added that it was necessary to take a ten cent per hour cut in 
 
         pay in order to do the lace fat job.  He said that it can be done 
 
         with either hand.  He performed this job until a strike occurred 
 
         on March 9, 1987.  Claimant testified that he nevertheless, still 
 
         had pain in his right hand.
 
         
 
              Claimant said that pain in his right hand makes if difficult 
 
         to paint, rake the yard or grip the wheel of a car.  The left hand 
 
         still hurts some, but it is not as bad as the right hand.  
 
         Claimant testified that the right hand is worse now than it was at 
 
         the end of 1985.  Claimant testified that he can feel his loss of 
 
         grip when putting torque on a wrench.  Sometimes a coffee cup will 
 
         slip out of his right hand, fall and break.  Claimant said that he 
 
         probably could do some of his old laboring jobs, such as digging 
 
         ditches and puddling concrete, but that it would cause him a lot 
 
         of discomfort. Claimant stated that he was taking no medication 
 
         now and he is not under a doctor's care now.  Claimant testified 
 
         that he plans to return to the job of pulling lace fat when the 
 
         strike is over.
 
         
 
              Claimant reiterated that he had no problems with his left 
 
         hand until the fall of 1986.  He also reaffirmed more than once 
 
         that his right hand has never shown any improvement, but in his 
 
         opinion it has only become worse since the very beginning of his 
 
         problem with his right hand in October of 1985.  Claimant 
 
         disagreed with several notes made by a number of doctors to the 
 
         effect that his right hand was "improved" or "better".  Claimant 
 
         countered that the doctors write down what they want to write. 
 
         Claimant stated that he always said that his right hand was 
 
         becoming worse.  He denied that he ever told the doctors that it 
 
                                                
 
                                                         
 
         was the same or better.  Claimant further testified that his 
 
         right or left hand might be better or worse on any given day, 
 
         depending on usage of that hand, but overall his right hand has 
 
         always gotten worse.  The problems with his left hand are minor 
 
         by comparison to the right hand.
 
         
 
              Claimant agreed that he did continue to do the job of 
 
         separating guts or lace fat after both injury dates.  Claimant 
 
         acknowledged that he had not received any surgery for the carpal 
 
         tunnel condition of either his right hand or his left hand.
 
         
 
              On October 4, 1985, the plant nurse noted that claimant 
 
         complained of right arm pain and that his arm falls asleep (Ex. 
 
         A, p. 8).
 
         
 
              The medical records of Morningside Clinic show that claimant 
 
         was treated there by Daniel M. Rhodes, M.D., John N. Redwine, 
 
         D.O. and Michael A. Jennings, M.D., for the injury that was 
 
         stipulated to have occurred on October 4, 1985.
 
         
 
              On October 10, 1985, Dr. Rhodes' initial diagnosis was 
 
         myotenositis of the right arm and wrist (Ex. A, pp. 48 & 49).  On 
 
         October 15, 1985, Dr. Rhodes also added that the left arm was 
 
         mildly tender but stated that his diagnosis was clinical carpal 
 
         tunnel syndrome, right (Ex. A, pp. 46 & 47).  On October 21, 
 
         1985, Dr. Redwine repeated that exact same diagnosis (Ex. A, pp. 
 
         44 & 45).  On October 24, 1985, Dr. Jennings diagnosed mild 
 
         tendonitis of the extensor tendon of the right hand, carpal 
 
         tunnel syndrome-mild right (Ex. A, pp. 42 & 43).   On October 31, 
 
         1985, Dr. Jennings noted slight improvement (Ex. A, pp. 40 & 41).  
 
         On November 7, 1985, Dr. Jennings stated that patient says that 
 
         he feels much better (Ex. A, pp. 38 & 39).  On November 14, 1985, 
 
         the doctor recorded that patient feels somewhat better and was 
 
         working full time at his usual job (Exs. 36 & 37).  On February 
 
         27, 1986, Dr. Jennings stated that claimant's pain had been 
 
         coming back gradually since his last visit and that it was 
 
         greater on the right than the left (Ex. A, pp. 30 & 31).  On 
 
         March 4, 1986, Dr. Jennings reported that claimant had used a 
 
         pitchfork and shovel and that his pain was worse (Ex. A, pp. 28 & 
 
         29).  On March 10, 1986, Dr. Jennings said that patient feels 
 
         somewhat better (Ex. A, pp, 26 & 27).  On March 17, 1986, Dr. 
 
         Jennings recorded carpal tunnel syndrome better (Exs. 25 & 26).
 
         
 
              At the time of all of these examinations the written recorded 
 
         diagnosis was right carpal tunnel syndrome (Ex. A, pp. 24-48).  
 
         The left upper extremity is only mentioned slightly on two 
 
         occasions in passing (Ex. A, pp. 46 & 30).
 
         
 
              Dr. Jennings wrote a letter to the insurance carrier (Chubb 
 
         Group) on May 1, 1986 which reads as follows:
 
         
 
              I last saw Steve Cooper on March 17, 1986.  He just received 
 
              conservative management for carpal tunnel syndrome.  I do 
 
              not believe we got a nerve conduction study on him as he 
 
              improved without the need for surgery or injections.  The 
 
                                                
 
                                                         
 
                   last time I saw him he was better.
 
         
 
         (Ex. A, p. 20)
 
         
 
              Next, the medical records show that claimant saw Milton D. 
 
         Grossman, M.D., on September 26, 1986 for the injury that was 
 
         stipulated to have occurred on August 3, 1986 to both the right 
 
         hand and the left hand at the same time (Ex. A, pp. 6 & 11).  Dr. 
 
         Grossman said claimant described right hand pain and numbness and 
 
         that his left hand bothered him also.  Dr. Grossman's recorded 
 
         diagnosis was tendonitis - right hand and fingers (Ex. A, p. 
 
         19).
 
         
 
              Claimant was seen in the same office by William M. Krigsten, 
 
         M.D., on October 8, 1986 for a recheck of his hands and Dr. 
 
         Krigsten diagnosed possible carpal tunnel syndrome (Ex. A, P. 18). 
 
         Dr. Krigsten ordered an EMG and nerve conduction test on October 
 
         13, 1986 from Dennis Nitz, M.D., (Exs. 14 & 17).  On October 16, 
 
         1986, Dr. Krigsten diagnosed carpal tunnel syndrome, mild, 
 
         bilateral. he recommended a week off work and concurrently a week 
 
         of physical therapy at the Marion Health Center (Exs. 15 & 16).  
 
         On October 23, 1986, Dr. Krigsten's diagnosis was the same.  He 
 
         recommended that claimant be allowed to perform the lace lard job 
 
         for three weeks (Ex. A. pp. 11-13).  On,November 4, 1986, Dr. 
 
         Krigsten wrote to Chubb Group that he had proposed carpal tunnel 
 
         surgery to claimant (Ex. A, p. 4).  On November 13, 1986, Dr. 
 
         Krigsten continued to record bilateral hand pain and continued to 
 
         recommend the lace fat job (Ex. A, pp. 2 & 3).
 
         
 
              In his letter to Chubb Group, dated November 4, 1986 (Ex. A, 
 
         p. 4), and in a final letter to the attorney for National Union 
 
         Fire dated January 9, 1987 (Ex. A, p. 1) Dr. Krigsten stated that 
 
         claimant had been seen at Morningside Clinic about a year prior 
 
                            
 
                                                
 
                                                         
 
         to this time and that he had not seen any doctor for six months.  
 
         Dr. Krigsten then briefly summarized his office notes and 
 
         concluded as follows:  "This man had gradual onset of discomfort 
 
         in both hands gradually at same time; has 5% permanent impairment 
 
         right hand and 3% of left hand."  (Ex. A, p. 1).
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of October 4, 1985 and August 3, 
 
         1986 are 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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the injury stipulated to have 
 
         occurred on October 4, 1985, was the cause of permanent 
 
         disability.  It was further stipulated that claimant only lost 
 
         three days of work due to this injury.  Claimant was treated for 
 
         this injury eleven times between October 10, 1985 and March 17, 
 
         1986.  Claimant testified that he always returned to work to the 
 
         difficult chitterling job of separating the large black gut from 
 
         the small gut.  Claimant was frequently returned to light duty 
 
         work, however; claimant testified that there is no such thing as 
 
         light duty work in the packing house.  Claimant testified that 
 
         either you do your regular job or you don't work at all.  
 
         Claimant testified that he was able to do the job even though it 
 
         was very difficult from the aching and the pain in his right 
 
         wrist. Claimant's credibility on the subject of pain is not 
 
         questioned. However, pain that is not substantiated by clinical 
 
         findings is not a substitute for impairment.  Waller v. 
 
         Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 
 
         (1981).
 
         
 
              The clinical findings in this case are that claimant was 
 
         treated several times from October 10, 1985 to March 17, 1986.  
 
         On March 17, 1986, Dr. Jennings said claimant was performing his 
 
                                                
 
                                                         
 
         regular job and that he was better.
 
         
 
              None of the three physicians at the Morningside Clinic who 
 
         treated claimant for this condition--Dr.  Redwine, Dr. Rhodes or 
 
         Dr. Jennings--imposed any temporary or permanent restrictions or 
 
         limitations on claimant's work activity.  None of these three 
 
         doctors gave an impairment rating or said anything to indicate 
 
         that an impairment rating was warranted or indicated.  Claimant 
 
         did not receive an EMG.  Dr. Jennings said no injections were 
 
         administered.  No surgery was recommended or performed for this 
 
         condition.  According to the medical records and nurses notes, 
 
         claimant was able to function in his job until approximately 
 
         August 3, 1986.  Claimant testified that his right hand became 
 
         progressively worse at all times.  This is controverted by the 
 
         medical records which show gradual improvement until claimant was 
 
         described as better on March 1, 1986.  Therefore, there is a 
 
         conflict of evidence between claimant's testimony and the medical 
 
         records as to whether claimant's right hand got worse or better. 
 
         It is a fact however, that claimant did do the job without 
 
         medical treatment from March 17, 1986 to August 3, 1986.  
 
         Claimant then, has not sustained the burden of proof by a 
 
         preponderance of the evidence that the injury which is stipulated 
 
         to have occurred on October 4, 1985, was the cause of any 
 
         permanent disability. Consequently, claimant is not entitled to 
 
         any permanent disability benefits as a result of the injury of 
 
         October 4, 1985.
 
         
 
              Accordingly, claimant is not entitled to benefits from the 
 
         Second Injury Fund of Iowa.  Iowa Code section 85.64 requires (1) 
 
         the loss or loss of use of one hand, one arm, one foot, one leg 
 
         or one eye; (2) the loss of loss of use of another such member or 
 
         organ and (3) some degree of permanent disability resulting from 
 
         both the first and second injury.  Anderson v. Second Injury 
 
         Fund, 262 N.W.2d 789 (Iowa 1978).  Counsel for the Second Injury 
 
         Fund in her brief accurately and succinctly summarized why 
 
         claimant is not entitled to Second Injury Fund benefits in this 
 
         case.
 
         
 
                   Claimant sought Fund benefits on the basis of a first 
 
              loss to his right hand on October 4, 1985.. Claimant did now 
 
              show a loss of use with resulting permanent disability to 
 
              his right hand, however.  What the evidence demonstrates is 
 
              that Claimant's initial complaints regarding his right hand 
 
              was of a temporary nature only.  He missed 3 days of work 
 
              and on November 14, 1985, his treating physician imposed no 
 
              limitations or restrictions.  Joint Ex. A, p. 36. 
 
              Furthermore, no expert medical evidence was offered that 
 
              Claimant suffered from any permanent impairment to his right 
 
              hand due to any October 4, 1985, injury.  Claimant's 
 
              position that his first claimed injury to his right hand was 
 
              sufficient to invoke  85.64 must be rejected as his first 
 
              injury was not permanent and did not act as any hindrance to 
 
              his ability to obtain or retain effective employment.   
 
              85.64; Anderson v. Second Injury Fund, 262 N.W.2d 278, 791 
 
              (Iowa 1978).
 
                                                
 
                                                         
 
         
 
              No Second Injury Fund benefits were awarded to a claimant 
 
         who failed to show a permanent disability existed as a result of 
 
         the first injury and prior to the second injury.  Ross v. Service 
 
         Master-Story Co., Inc., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 273 (1979).
 
         
 
              None of Dr. Krigsten's impairment rating can be attributed 
 
         to the first injury because (1) Dr. Krigsten did not examine 
 
         claimant until after the second injury and (2) all Dr. Krigsten 
 
         knew about the first injury was that claimant had been seen at 
 
         the Morningside Clinic about one year prior but had not seen a 
 
         doctor for approximately six months.  Therefore, Dr. Krigsten was 
 
         not in a position in point of time to evaluate the first injury 
 
         and he did not have sufficient information to make such an 
 
         evaluation. Nor is there any information in either of Dr. 
 
         Krigsten's letters that even slightly suggests that he intended 
 
         to rate the first injury of October 4, 1985 to the right hand 
 
         (Ex. A, pp. 1 & 4). Consequently, claimant is not entitled to 
 
         Second Injury Fund benefits because he did not sustain the burden 
 
         of proof by a preponderance of the evidence that the first injury 
 
         resulted in any permanent disability.
 
         
 
              Claimant is entitled to permanent disability benefits as a 
 
         result of the injury which the parties stipulated occurred on 
 
         August 3, 1986.  Dr. Krigsten made it clear in his office notes 
 
         (Ex. A, pp. 3, 12, 13, 16 & 18) and his two written reports (Ex. 
 
         A, pp. 1 & 4) that this man had gradual onset of discomfort in 
 
         both hands gradually at the same time with respect to the injury 
 
         of August 3, 1986 which he treated.  For this bilateral carpal 
 
         tunnel syndrome he awarded a five percent permanent functional 
 
         impairment of the right hand and a three percent functional 
 
         impairment to the left hand (Ex. A, p. 1).
 
         
 
              The Iowa Supreme Court case of Simbro v. DeLong's 
 
         Sportswear, 332 N.W.2d 886 (Iowa 1983) held that permanent 
 
         partial disability of two members caused by a single incident is 
 
         a scheduled injury and that the degree of impairment for a 
 
         partial loss must be computed on the basis of a functional, 
 
         rather than industrial, disability pursuant to Iowa Code section 
 
         85.34(2)(s).  Dr. Krigsten is the only medical practitioner to 
 
         evaluate and rate the injury of August 3, 1986.  He said that 
 
         claimant sustained bilateral carpal tunnel which developed in 
 
         both hands at the same time.  There is no medical evidence to the 
 
         contrary to even consider in this case.  This is a simultaneous 
 
         injury to the right and left hands which occurred at the time of 
 
         the injury which is stipulates to have occurred on August 3, 
 
         1986.  Simbro applies.
 
         
 
              Iowa Code section 85.34(2)(s) provides as follows:
 
         
 
                   The loss of both arms, or both hands, or both feet, or 
 
              both eyes, or any two thereof, caused by a single accident, 
 
              shall equal five hundred weeks and shall be compensated as 
 
              such, however, if said employee is permanently and totally 
 
                                                
 
                                                         
 
                   disabled he may be entitled to benefits under subsection 3.
 
         
 
              Using the Guides to the Evaluation of Permanent Impairment 
 
         second edition, published by the American Medical Association, 
 
         table 9 on page 10 then five percent of the right hand converts 
 
         to five percent of the right upper extremity and three percent of 
 
         the left hand converts to three percent of the left upper 
 
         extremity. Turning to table 20 on page 23, five percent of the 
 
         right upper extremity converts to three percent of the body as a 
 
         whole and three percent of the left upper extremity converts to 
 
         two percent of the body as a whole.  Turning to the Combined 
 
         Values Chart, on page 240, the combined value of three percent 
 
         and two percent equals five percent of the body as a whole.  Five 
 
         percent of 500 weeks is equal to 25 weeks of permanent partial 
 
         disability benefits.  Therefore, it is determined that the injury 
 
         of August 3, 1986 was the cause of permanent disability and that 
 
         claimant is entitled to 25 weeks of permanent partial disability 
 
         benefits. Coincidentally, or not so coincidentally, 25 weeks of 
 
         permanent partial disability benefits is the exact number of 
 
         weeks of permanent partial disability that defendants, John 
 
         Morrell and Company and National Union Fire Insurance Company, 
 
         have paid claimant prior to hearing.  Therefore, it is determined 
 
         that defendants, John Morrell and Company and National Union Fire 
 
         Insurance Company, have not over paid claimant for the injury of 
 
         August 3, 1986.
 
         
 
              Iowa Code section 85.21(1) provides as follows:
 
         
 
                   The industrial commissioner may order any number or 
 
              combination of alleged workers' compensation insurance 
 
              carriers and alleged employers, which are parties to a 
 
              contested case or to a dispute which could culminate in a 
 
              contested case, to pay all or part of the benefits due to an 
 
     
 
                       
 
                                                         
 
              employee or an employee's dependent or legal representative 
 
              if any of the carriers or employers agree, or the 
 
              commissioner determines after an evidentiary hearing, that 
 
              one or more of the carriers or employers is liable to the 
 
              employee or to the employee's dependent or legal 
 
              representative for benefits under this chapter or under 
 
              chapter 85A or 85B, but the carriers or employers cannot 
 
              agree, or the commissioner has not determined which carriers 
 
              or employers are liable.
 
         
 
              As previously indicated, there is simply no medical evidence 
 
         that claimant sustained a permanent impairment or disability as a 
 
         result of the injury on October 4, 1985.  Therefore, no permanent 
 
         partial disability benefits are due to claimant from this injury. 
 
         Likewise, no contribution is due from Iowa Meat Processing and 
 
         Chubb Group of Insurance Companies to John Morrell and Company 
 
         and National Union Fire Insurance Company.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Therefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That there was no medical evidence that the injury of 
 
         October 4, 1985 was the cause of any permanent functional 
 
         impairment;
 
         
 
              That Dr. Krigsten, the only medical practitioner to testify 
 
         on the topic of impairment, stated that claimant sustained a 
 
         simultaneous bilateral carpal tunnel syndrome as a result of the 
 
         injury which occurred on August 3, 1986.  His assessment is 
 
         accepted as being correct;
 
         
 
              That Dr. Krigsten awarded a five percent permanent 
 
         functional impairment rating of the right hand and a three 
 
         percent permanent functional impairment of the left hand for the 
 
         injury that occurred on August 3, 1986. his ratings are accepted 
 
         as being correct;
 
         
 
              That these ratings convert and combine to a five percent 
 
         impairment to the body as a whole; and
 
         
 
              That claimant is entitled to 25 weeks of permanent partial 
 
         disability benefits as a result of the injury which occurred on 
 
         August 3, 1986, and was paid 25 weeks of permanent partial 
 
         disability benefits by John Morrell & Company and National Union 
 
         Fire Insurance Company prior to the hearing.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WhEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated the following conclusions of 
 
         law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
                                                
 
                                                         
 
         preponderance of the evidence that the injury of October 4, 1985 
 
         was the cause of any permanent functional impairment or 
 
         disability;
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that the injury of August 3, 1986 
 
         was the cause of bilateral permanent impairment which occurred 
 
         simultaneously;
 
         
 
              That claimant is entitled to 25 weeks of permanent partial 
 
         disability benefits pursuant to Iowa Code section 85.34(2)(s);
 
         
 
              That the Second Injury Fund of Iowa is not liable for the 
 
         payment of any benefits pursuant to Iowa Code section 85.64; and
 
         
 
              That claimant has not been over paid by John Morrell and 
 
         Company and National Union Fire Insurance Company and that this 
 
         employer and this insurance carrier are not entitled to a 
 
         contribution from Iowa Meat Processing and Chubb Group of 
 
         Insurance Companies pursuant to Iowa Code section 85.21.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding;
 
         
 
              That claimant pay the costs of all parties to this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33; and
 
         
 
              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 19th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry Smith
 
         Mr. Dennis McElwain
 
         Attorneys at Law
 
         PO Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Charles Cutler
 
         Attorney at Law
 
         729 Insurance Exchange Bldg
 
                                                
 
                                                         
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Thomas Plaza
 
         Attorney at Law
 
         PO Box 3096
 
         Sioux City, Iowa  51102
 
         
 
         Ms. Shirley Steffe
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa  50319
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1803; 3202;
 
                                                 3203; 1806; 4200;
 
                                                 2207; 2209
 
                                                 Filed May 19, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN A COOPER,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 832043
 
         
 
         IOWA MEAT PROCESSING,
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CHUBB GROUP OF INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         JOHN MORRELL & COMPANY,
 
         
 
              Employer,                             File No. 832042
 
         
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY
 
         
 
              Insurance Carrier,
 
         
 
         and                                     A R B I T R A T I 0 N
 
         
 
         SECOND INJURY FUND OF IOWA,
 
                                                   D E C I S I 0 N 
 
              Defendants.
 
         
 
         
 
         1402.40
 
         
 
              The parties stipulated that claimant received carpal tunnel 
 
         injuries on two separate dates.  Claimant did not sustain the 
 
         burden of proof by a preponderance of the evidence that the first 
 
         stipulated injury was the cause of permanent impairment or 
 
         disability.
 
         
 
         1803
 
         
 
                                                
 
                                                         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the second stipulated injury was the cause 
 
         of bilateral carpal tunnel which occurred simultaneously and was 
 
         the cause of permanent impairment and disability under Iowa Code 
 
         section 84.34(2)(s).  The award was the same as the prehearing 
 
         benefits paid, so claimant took nothing.
 
         
 
         3202; 3203
 
         
 
              The Second Injury Fund of Iowa was not liable for benefits 
 
         because claimant did not prove that the first injury produced any 
 
         permanent disability.
 
         
 
         1803; 4200
 
         
 
              Apportionment or contribution was not allowed to the second 
 
         employer and insurer from the first insurer and carrier because 
 
         all of the permanent disability and impairment was attributable 
 
         to the second injury.
 
         
 
         2207; 2209
 
         
 
              No finding on cumulative injury was made because the parties 
 
         had stipulated to the two separate injury dates on the 
 
         pre-hearing report.