5-1108.50; 5-1804; 2906; 5-3202
 
                                      Filed March 17, 1993
 
                                      Byron K. Orton
 
                                      MGT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         GARY FINNEMAN,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                        File Nos. 834479/913590
 
         WILSON FOODS CORPORATION,       
 
                                              A P P E A L
 
              Employer,   
 
              Self-Insured,                 D E C I S I O N
 
                     
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1108.50
 
         Claimant's work activities and his treating physician's opinion 
 
         were relied upon to find that claimant had sustained separate 
 
         injuries to his right arm and his left arm.  The injuries were a 
 
         result of repetitive use of the arms.
 
         
 
         5-1804
 
         Claimant sustained five percent disability to each arm.
 
         
 
         2906
 
         Claimant failed to amend his petition to include occupational 
 
         disease as a theory of recovery as directed to do so at the 
 
         prehearing.  Claimant was precluded from asserting the theory of 
 
         occupational disease against the employer.
 
         
 
         5-3202
 
         A forty year old claimant with impairment of five percent to each 
 
         arm was found to have a cumulative industrial disability of 10 
 
         percent.  Second Injury Fund was liable for 25 weeks of benefits.  
 
         Claimant's repetitive injury was not an occupational disease.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY FINNEMAN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 834479
 
            vs.                           :                   913590
 
                                          :
 
            WILSON FOODS CORPORATION,     :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                 Self-Insured,            :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Gary Finneman against his former employer, Wilson 
 
            Foods Corporation, and against the Second Injury Fund of 
 
            Iowa.  File number 834479 is based upon an alleged injury of 
 
            May 28, 1986 to Finneman's right arm.  File number 913590 
 
            deals with an alleged injury of December 21, 1988 to his 
 
            left arm.  Claimant seeks compensation for additional 
 
            permanent partial disability, either from the employer or 
 
            from the Second Injury Fund of Iowa.  Claimant had attempted 
 
            to rely upon the theory of occupational disease against the 
 
            employer, but was denied the opportunity due to a procedural 
 
            technicality.  The Second Injury Fund of Iowa, however, was 
 
            allowed to use occupational disease as a defense of the 
 
            claim.
 
            
 
                 The primary issues to be determined are whether 
 
            claimant sustained injury which arose out of and in the 
 
            course of employment in each file; whether the condition 
 
            upon which the claim is based is an occupational disease 
 
            under chapter 85A of The Code rather than an injury 
 
            compensable under chapter 85 of The Code; and, determination 
 
            of the claimant's entitlement to permanent partial 
 
            disability compensation.
 
            
 
                 The case was heard at Storm Lake, Iowa, on July 1, 
 
            1991.  The evidence consists of testimony from Gary Finneman 
 
            and jointly offered exhibits 1 through 84.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Gary Finneman is a 40-year-old high school graduate who 
 
            had been employed by Wilson Foods Corporation since 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            graduating from high school in 1968 up until March 30, 1991, 
 
            when he resigned.
 
            
 
                 Gary started in the hide cellar for approximately one 
 
            year, performed night sanitation work for approximately one 
 
            year, loaded boxes of meat on the loading dock for 
 
            approximately eight years and then moved into the boning 
 
            room.  Gary boned hams, picnics, loins and butts.  He was 
 
            required to work at a competitive speed according to 
 
            established standards.  The hog kill operation at the plant 
 
            was terminated and Gary then was assigned to cut meat which 
 
            was purchased from other packers.  He described the meat as 
 
            being colder, stiffer and requiring more strenuous exertion.  
 
            Gary began noticing pain in his arm before the hog kill 
 
            process was terminated.  Gary feels that his arm problems 
 
            started when he worked in the boning room.
 
            
 
                 On May 28, 1986, Gary began treating with Keith O. 
 
            Garner, M.D., the Wilson plant physician, for complaints of 
 
            pain in his right elbow.  After conservative treatment was 
 
            unsuccessful, Gary was referred to orthopaedic surgeon Oscar 
 
            M. Jardon, M.D., and underwent surgery in the form of 
 
            release of the right common extensor tendon of his right 
 
            elbow, removal of the lateral epicondyle bursa and 
 
            reinsertion of the common extensor tendon into the lateral 
 
            epicondyle (exhibit 58, page 1; exhibit 59).  The surgery 
 
            was performed on April 22, 1987.  Up to that point in time, 
 
            only Gary's right arm had been symptomatic (exhibits 71, 74, 
 
            75, 77, 79 and 81).
 
            
 
                 After recuperating approximately five months, Gary 
 
            returned to work.  He bid to a job where he was not required 
 
            to use a knife and the demands on his right arm were 
 
            reduced.
 
            
 
                 During late 1988, Gary began to experience problems in 
 
            his left elbow which were similar to what he had previously 
 
            experienced on the right.  December 21, 1988 is the date 
 
            entered on the accident report, although it appears as 
 
            though the report was actually made on February 15, 1989 
 
            (exhibits 40, 81 and 82).  The record does not show how the 
 
            date of December 21, 1988 was arrived at or determined to be 
 
            a date of injury.  It is noted that, with regard to the 
 
            right elbow problem, the date of injury on the employer's 
 
            records is May 28, 1986, even though disability did not 
 
            begin until September 26, 1986.  It appears as though May 
 
            28, 1986 was the last work day which was two months prior to 
 
            the date that the accident was entered on the accident 
 
            report, namely July 30, 1986 (exhibit 79).  Apparently the 
 
            parties have used the estimated date of onset of symptoms as 
 
            the date of injury.  The record reflects that Gary did not 
 
            miss work on account of his left elbow until April 3, 1989, 
 
            when he was hospitalized for surgery (exhibit 41).  It 
 
            appears as though December 21, 1988 may have been the last 
 
            day of work which was two months prior to the date that the 
 
            injury was reported.
 
            
 
                 On April 3, 1989, Dr. Jardon performed lateral 
 
            epicondyle release on Gary's left elbow (exhibit 27; exhibit 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            30, page 32).  Dr. Jardon released claimant to return to 
 
            work effective July 31, 1989 and he did so return (exhibits 
 
            14, 39 and 41).  Effective August 17, 1987, he was released 
 
            to work without restriction (exhibit 51).
 
            
 
                 Gary worked with few absences, but had continuing 
 
            symptoms and problems (exhibits 5 and 81).  In a report 
 
            dated November 27, 1990, Dr. Jardon recommended that 
 
            claimant reduce the use of his left arm with regard to 
 
            repetitive backhand motions.  He even suggested that it 
 
            might be advantageous for claimant to get into a different 
 
            line of work which did not require the motions of the meat 
 
            packing industry (exhibit 2).  Dr. Jardon originally 
 
            assigned a five percent impairment rating for claimant's 
 
            right arm following the 1987 surgery (exhibit 49).  Once 
 
            claimant's left arm also became affected by the condition, 
 
            he raised his impairment to ten percent of each arm 
 
            (exhibits 2, 4, 8, 9 and 12).  The increase was due to the 
 
            fact that both of claimant's arms were impaired.
 
            
 
                 At hearing, Gary quite credibly testified that Drs. 
 
            Jardon and Garner had both suggested that he seek a 
 
            different type of work.  He resigned from his employment on 
 
            March 30, 1991.  At hearing, he expressed a desire to return 
 
            to school to get into a line of work which required less use 
 
            of his hands.
 
            
 
                 Gary also has had back problems and shoulder problems, 
 
            but the record does not show either of those problems to 
 
            contribute significantly to his disability.
 
            
 
                 In response to a questionnaire from the Second Injury 
 
            Fund of Iowa, Dr. Jardon agreed that Gary's physical 
 
            complaints involving his arms were a result of repetitive 
 
            use of his hands, wrists and arms while working at Wilson 
 
            Foods Corporation, that the bilateral condition had a direct 
 
            causal connection with claimant's employment at Wilson 
 
            Foods, and that the condition followed as a natural incident 
 
            to that employment and not independent of the employment.  
 
            Dr. Jardon further agreed that the condition falls under the 
 
            broad category of "overuse syndrome," that there was not any 
 
            single traumatic incident at work that caused the condition, 
 
            and that the problems were simultaneously developing 
 
            bilaterally, but became manifest in each arm on different 
 
            occasions.  Dr. Jardon also agreed that claimant used his 
 
            arms more extensively at work than would an individual in 
 
            the general population (exhibit 1).  In a report dated March 
 
            12, 1990, Dr. Jardon confirmed that the lateral 
 
            epicondylitis occurred as a result of repetitive motion 
 
            which Gary performed while he was at work at Wilson Foods 
 
            (exhibit 4).
 
            
 
                 It is found that the lateral epicondylitis which Gary 
 
            Finneman developed on both of his elbows occurred as a 
 
            direct consequence of the repetitive work activities he 
 
            performed at Wilson Foods.  The assessment of this case as 
 
            made by Dr. Jardon is accepted and found to be correct.
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The Iowa Supreme Court has long stated that pleadings 
 
            in workers' compensation proceedings should not be judged by 
 
            the standards of strictness and technical rules of procedure 
 
            that are applied in other legal proceedings.  Yeager v. 
 
            Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 
 
            (1961); Yates v. Humphrey, 218 Iowa 792, 255 N.W. 639 
 
            (1934).
 
            
 
                 The Iowa Rules of Civil Procedure have been adopted by 
 
            this agency, except to the extent that they are 
 
            irreconcilable with agency rules of procedure.  Rule 343 IAC 
 
            4.35.  Rule 343 IAC 4.36 permits closure of the record to 
 
            further activity or evidence or a dismissal of a claim as a 
 
            sanction for failure to comply with an order entered by the 
 
            agency.  Rule of Civil Procedure 67 abolishes technical 
 
            forms of pleading and goes on to state that the form and 
 
            sufficiency of all pleadings shall be determined by the 
 
            rules, construed and enforced in order to secure a just, 
 
            speedy and inexpensive determination of all controversies on 
 
            their merits.  A petition is required to allege facts 
 
            showing that the pleader is entitled to relief.  Iowa R. 
 
            Civ. P. 69(a).  The rule does not require that specific 
 
            theories be pled in the petition.  It is not necessary to 
 
            set out the legal theory on which the claim is based.  
 
            Pendergast v. Davenport, 375 N.W.2d 684 (Iowa 1985); Tigges 
 
            v. City of Ames, 356 N.W.2d 503 (Iowa 1984); Lamantia v. 
 
            Sojka, 298 N.W.2d 245 (Iowa 1980); Christensen v. Shelby 
 
            County, 287 N.W.2d 560 (Iowa 1980).  It has been held that, 
 
            in the district court, the terms of the pretrial order (the 
 
            equivalent of the agency hearing assignment order) 
 
            operatively amend the pleadings.  Gray v. Schlegel, 265 
 
            N.W.2d 156 (Iowa 1978).
 
            
 
                 The agency precedent is that a decision should not be 
 
            restricted to the particular theory of injury pled by the 
 
            claimant and that an award of benefits should be based on 
 
            the evidence presented and not turn on the technicalities of 
 
            pleading.  McCoy v. Donaldson Co., file number 752670 (App. 
 
            Decn. 1989).  It has been held unnecessary to plead chapter 
 
            85A of The Code as a theory if it is entered on the hearing 
 
            assignment order.  Filip v. Cedar Glass, Inc., Vol. 1, No. 1 
 
            State of Iowa Industrial Commissioner Decisions 54 (Arb. 
 
            Decn. 1984).
 
            
 
                 The record does not disclose the reason why, at the 
 
            prehearing conference, the claimant was ordered to amend his 
 
            petition since the normal rules of pleadings applicable in 
 
            the courts would not require the legal theory of 
 
            occupational disease to be pled if the proceeding were one 
 
            which were being litigated in the district court.  He 
 
            inadvertently failed to make a formal amendment.  The order 
 
            to amend is not on the hearing assignment order.  It is 
 
            noted on the prehearing deputy's notes.  It is clear that 
 
            the lack of a formal amendment was not prejudicial since all 
 
            parties to the proceeding were aware that the claimant was 
 
            relying on the occupational disease law in support of his 
 
            claim against the employer and that the Second Injury Fund 
 
            was relying upon it as a defense to avoid liability.  While 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the requirement for amending the pleading to assert the 
 
            theory was not necessary to inform the parties of the 
 
            issues, the failure to do so was ruled by the prehearing 
 
            deputy to deny the claimant the opportunity to rely upon 
 
            occupational disease as a theory of recovery, even though 
 
            chapter 85A was listed as an issue on the hearing assignment 
 
            order and the prehearing deputy allowed the Second Injury 
 
            Fund to rely upon occupational disease as a defense.
 
            
 
                 If claimant's theories of recovery had not been 
 
            limited, he would be entitled to have his disability 
 
            evaluated industrially under the Second Injury Fund if the 
 
            condition was treated as an injury compensable under chapter 
 
            85 of The Code or as an occupational disease under chapter 
 
            85A of The Code.  While there is some precedent within the 
 
            agency which states that occupational diseases which affect 
 
            only scheduled members are to be compensated according to 
 
            the schedule found in Code section 85.34(2), that argument 
 
            must fail since no compensation is payable until the 
 
            threshold of disablement is reached as defined in Code 
 
            section 85A.4.  Disablement is an industrial disability 
 
            standard.  To apply the schedule would require payment of 
 
            permanent partial disability compensation where disablement 
 
            had not been reached.  It is recognized that payment of 
 
            permanent partial disability compensation according to loss 
 
            of earning capacity is a more fair and accurate means of 
 
            compensating a loss than the schedule system and that the 
 
            schedule system exists primarily because of its simplicity 
 
            and consistency.  Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983).  Likewise, the Iowa Supreme Court has stated 
 
            that disability under Code chapter 85A is to be determined 
 
            by considering the factors of industrial disability.  
 
            Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 
 
            1984); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 
 
            (Iowa 1980).  While both of those cases involve disease 
 
            affecting the body as a whole, it is apparent that the 
 
            scheduled injury system of compensation is irreconcilable 
 
            with section 85A.4.  The first paragraph of section 85A.5 
 
            provides that benefits for occupational disease are to be 
 
            the same as those for injury, except as otherwise provided.  
 
            The contrary provision is found in the second paragraph of 
 
            section 85A.5 and 85A.4 which provide an industrial 
 
            disability standard is to be used when compensating 
 
            occupational disease.
 
            
 
                 Since the outcome of this case depends greatly upon 
 
            whether the conditions are occupational diseases rather than 
 
            injuries, it is necessary to make that determination.  The 
 
            proper method of analysis of whether any particular 
 
            condition is the result of an injury rather than an 
 
            occupational disease is not well defined.  1B Larson 
 
            Workmen's Compensation Law, section 41.00, et seq.  The 
 
            definitions used are somewhat circuitous.  Code section 
 
            85.61(5)(b) states that injury ". . . shall not include an 
 
            occupational disease as defined in section 85A.8."  Section 
 
            85A.8 states:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise out of and in the course of the 
 
                 employee's employment.  Such diseases shall have a 
 
                 direct causal connection with the employment and 
 
                 must have followed as a natural incident thereto 
 
                 from injurious exposure occasioned by the nature 
 
                 of the employment.  Such disease must be 
 
                 incidental to the character of the business, 
 
                 occupation or process in which the employee was 
 
                 employed and not independent of the employment.  
 
                 Such disease need not have been foreseen or 
 
                 expected but after its contraction it must appear 
 
                 to have had its origin in a risk connected with 
 
                 the employment and to have resulted from that 
 
                 source as an incident and rational consequence.  A 
 
                 disease which follows from a hazard to which an 
 
                 employee has or would have been equally exposed 
 
                 outside of said occupation is not compensable as 
 
                 an occupational disease.
 
            
 
                 The supreme court has held that to prove causation of 
 
            an occupational disease, the claimant need only meet the two 
 
            basic requirements imposed by the statute, namely, that the 
 
            disease is causally related to the exposure to harmful 
 
            conditions in the field of employment and that those harmful 
 
            conditions are more prevalent in the employment concern than 
 
            in everyday life or other occupations.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181, 190 (Iowa 1980); 1B Larson 
 
            Workmen's Compensation Law, sections 41.31 through 41.33.
 
            
 
                 Prior to 1973, the Iowa Occupational Disease Law listed 
 
            specific diseases and processes which would be considered 
 
            occupational diseases.  In 1973, the legislature broadened 
 
            the definition of occupational disease by eliminating the 
 
            list of specific diseases and, at the same time, narrowed 
 
            the definition of "injury" to specifically exclude 
 
            occupational diseases.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181, 190 (Iowa 1980).  It is therefore apparent that 
 
            any condition which constituted an occupational disease 
 
            under the pre-1973 statute must continue to be an 
 
            occupational disease today.  The tenth item listed in the 
 
            pre-1973 statute was bursitis, synovitis or tenosynovitis 
 
            resulting from any process or occupational involving 
 
            continued or repeated pressure on the parts affected.  It 
 
            appears to list conditions now commonly referred to as 
 
            overuse syndromes.  Epicondylitis is such a condition.  1B 
 
            Larson Workmen's Compensation Law, section 41.42.
 
            
 
                 The proper analysis to be used when determining whether 
 
            a condition is an occupational disease or a cumulative 
 
            trauma injury is to first analyze whether the condition 
 
            falls within the definition of occupational disease as 
 
            established by the facts in evidence in the particular case.  
 
            Some ailments can be either an occupational disease or an 
 
            injury depending upon the causative factors and the factual 
 
            circumstances of the particular case.  If the condition fits 
 
            within the definition of an occupational disease, then Code 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            section 85.61(5)(b) specifically prohibits the condition 
 
            from being treated as an injury under chapter 85 of The 
 
            Code.  If it is excluded from chapter 85, then no payments 
 
            are recoverable on account of injury under the workers' 
 
            compensation law, and, therefore, the restriction on 
 
            liability found in Code section 85A.14 does not become 
 
            applicable.  It must be noted that when performing the legal 
 
            analysis, the definition of "injury" specifically excludes 
 
            "occupational disease," while the definition of 
 
            "occupational disease" does not specifically exclude 
 
            "injury."  The only exclusion is found in section 85A.14 
 
            which prohibits a recovery under chapter 85A "for which 
 
            compensation is recoverable on account of injury under the 
 
            workers' compensation law."  An employer's or insurance 
 
            carrier's action of paying benefits purportedly on account 
 
            of "injury," when the condition is actually an occupational 
 
            disease, does not prohibit this agency from correctly 
 
            analyzing the case and ordering benefits under chapter 85A, 
 
            rather than under chapter 85.  The mistake of fact or law 
 
            made by a party to a proceeding does not compel this agency 
 
            to continue to commit that same error.  The employer is, of 
 
            course, entitled to credit for those erroneous payments.  It 
 
            does not entitle the claimant to a double recovery or a 
 
            windfall.  Wilson Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 
 
            1982).
 
            
 
                 When the definition of occupational disease as found in 
 
            the current statute is considered in light of the judicial 
 
            precedents and the previous version of the statute, it is 
 
            concluded that the evidence from Dr. Jardon, particularly 
 
            that found in exhibits 1 and the characterization of the 
 
            onset of the condition as "typical" as found in exhibit 35, 
 
            establishes that Gary Finneman's bilateral lateral 
 
            epicondylitis is the result of an overuse syndrome type of 
 
            condition and is an occupational disease.  The condition was 
 
            caused by the process in which he worked.  It resulted from 
 
            repeated pressures on his arms which were required by the 
 
            processes.  Secondly, those repeated activities, stresses 
 
            and pressures on his arms were more prevalent in Finneman's 
 
            occupation as a packinghouse worker than in everyday life or 
 
            other occupations.  He was required to meet certain 
 
            production standards.  Dr. Jardon has recommended either 
 
            that he find positions with Wilson Foods which avoid the 
 
            repetitive pressure on the affected parts of his arms or 
 
            that he seek other employment which avoids repetitive 
 
            activities (exhibit 2).  It is common knowledge that many 
 
            occupations do not involve or require repetitive use of the 
 
            hands and arms.  It is likewise within the expertise of this 
 
            agency to recognize that many packinghouse positions do in 
 
            fact require continued, repetitive use of the hands and 
 
            arms.  There is a direct causal connection with the 
 
            employment and the epicondylitis followed as a natural 
 
            incident from the injurious exposure to the pressure of 
 
            repetitive activity on claimant's arms which was occasioned 
 
            by the nature of the employment.  Finneman's epicondylitis 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            was incident to the character of the business, in particular 
 
            the process in which he was employed.  It did not arise 
 
            independent of that employment.  The condition clearly had 
 
            its origin in a risk connected with the repetitive activity 
 
            of the employment.  The hazard of such repetitive activity 
 
            is not one to which Finneman would have been equally exposed 
 
            outside of his occupation.  There are no production 
 
            standards to meet in non-employment life.
 
            
 
                 The distinction between injury resulting from 
 
            cumulative trauma which can be compensable, an occupational 
 
            disease which can be compensable, and the normal wear and 
 
            tear incident to a life devoted to hard work which is not 
 
            compensable is not always clear.  There is likewise no clear 
 
            distinction between the terms "cumulative trauma" or 
 
            "repeated pressure on the parts affected."  If carried to 
 
            its logical extreme, it can be asserted that every step, 
 
            motion or impact a person experiences is a single incident 
 
            of cumulative trauma which plays a part in the breakdown of 
 
            the person's body.  The aging process itself also commonly 
 
            results in the breakdown of the body.  It is only when there 
 
            is some clearly identifiable stress or cumulative trauma 
 
            which produces a premature breakdown of the body that there 
 
            is a right to recover under either the injury or 
 
            occupational disease law.  That situation exists in this 
 
            case.
 
            
 
                 It is therefore found and concluded that Gary 
 
            Finneman's bilateral epicondylitis is an occupational 
 
            disease for which he is entitled to receive compensation 
 
            under chapter 85A of The Code.
 
            
 
                 Since Finneman was able to return to his employment 
 
            with Wilson Foods following both surgeries, it is clear that 
 
            he had not reached the point of disablement as defined in 
 
            section 85A.4 and was not entitled, at those times, to 
 
            recover any compensation for permanent partial disability.  
 
            If he were not prohibited from asserting his occupational 
 
            disease claim against his employer due to the procedural 
 
            technicalities, it would be appropriate to make a 
 
            determination regarding whether he has now met the standard 
 
            of disablement and, if so, the extent of his entitlement to 
 
            recover permanent partial disability.  In view of the 
 
            procedural ruling, however, there is no need to make that 
 
            analysis.
 
            
 
                 Since the claimant's condition has been determined to 
 
            be an occupational disease, the Second Injury Fund of Iowa 
 
            has no liability to Finneman.  Liability of the Fund is 
 
            conditioned only upon injury.  Hoffman v. Second Injury Fund 
 
            of Iowa, file numbers 831136 and 869798 (Arb. Decn., August 
 
            10, 1990); Iowa Code section 85.64.
 
            
 
                 It is therefore concluded that Gary Finneman is not 
 
            entitled to any additional recovery on account of injury in 
 
            these cases.  In fact, his claims were premature.  The 
 
            threshold of disablement, if it ever occurred, did not occur 
 
            prior to Finneman's resignation from Wilson Foods on March 
 
            30, 1991 since he remained employed by the same employer 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            working at substantially the same level of earnings as he 
 
            had experienced prior to the onset of the condition.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Gary Finneman take nothing 
 
            from this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the employer pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P.O. Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2203; 2906; 3202
 
                           Filed October 2, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            GARY FINNEMAN, 	      :
 
		                      :
 
                 Claimant,	      :
 
 		                      :         File Nos. 834479
 
            		vs.           :                   913590
 
                      		      :
 
            WILSON FOODS CORPORATION, :      A R B I T R A T I O N
 
                      		      :
 
                 Employer, 	      :         D E C I S I O N
 
                 Self-Insured,        :
 
                      		      :
 
		            and       :
 
                		      :
 
            SECOND INJURY FUND,       :
 
 		                      :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            
 
            2203
 
            Development of bilateral epicondylitis by a packinghouse 
 
            production worker held to be an occupational disease under 
 
            the evidence introduced in the case.
 
            
 
            3202
 
            Since the condition was determined to be an occupational 
 
            disease, the Second Injury Fund was held to have no 
 
            liability.
 
            
 
            2906
 
            Even though 85A was listed as an issue on the hearing 
 
            assignment order, the claimant was not allowed a recovery 
 
            under chapter 85A because the notes of the prehearing 
 
            conference indicated that the claimant had been ordered to 
 
            amend his petition to assert the legal theory of 
 
            occupational disease within thirty days and claimant had not 
 
            done so.  The prehearing deputy therefore imposed the 
 
            sanction of not allowing a recovery under chapter 85A as a 
 
            result of the failure to amend after having been ordered to 
 
            do so.
 
            
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
         
 
JOHN AMODEO,                         File Nos. 834562
 
                                               986903
 
     Claimant,       
 
                                  A R B I T R A T I O N
 
vs.             
 
                                     D E C I S I O N
 
IOWA POWER AND LIGHT COMPANY,   
 
         
 
     Employer,       
 
     Self-Insured,   
 
     Defendant.      
 
___________________________________________________________
 
 
 
                  STATEMENT OF THE CASE
 
 
 
These are proceedings in arbitration upon the petitions of 
 
John Amodeo, claimant, against his self-insured employer, 
 
Midwest Power, f/k/a Iowa Power, Inc., defendant.  The cases 
 
were heard on June 30, 1993 at the Polk County Courthouse in 
 
Des Moines, Iowa.  The record consists of the testimony of 
 
claimant.  The record also consists of the testimony of Mark 
 
White, manager of the Two Rivers Electrical Station; and the 
 
testimony of Linn Christensen, vocational rehabilitation specialist.  
 
Finally, the record is comprised of claimant's exhibits A-L, 18, 
 
19, 20 and defendant's exhibits 1, 2, 3, 4(1-18), 5 and 
 
claimant's exhibits 14, 15, 16.
 
 
 
                            ISSUE
 
 
 
The sole issue to be determined is the nature and extent of 
 
claimant's permanent partial disability, if any.
 
 
 
                        FINDINGS OF FACT
 
 
 
The deputy, having heard the testimony and considered all the 
 
evidence, finds:
 
 
 
Claimant is 42 years old.  He is the divorced father of two children.  
 
He is a 1969 graduate of Dowling High School in West Des Moines.  
 
Claimant has had no formalized training since leaving high school.  
 
Subsequent to his graduation from school, claimant worked at 
 
Crescent Electric for 9 months.  He was employed to stock shelves 
 
and to deliver goods.  
 
 
 
In February of 1970, claimant commenced his employment with 
 
defendant.  He has worked for this employer continually, with the 
 
exception of when claimant was off work due to any work injuries.   
 
At the time of the hearing, claimant was still in the employ of 
 
defendant. 
 
 
 
Initially, claimant was hired at $4.00 per hour to work as a laborer.  
 
Throughout the course of his employment, claimant has received 
 
regular increases in his wage rate.  In 1981, claimant was earning 
 
$15.00 per hour.  In 1989, claimant earned approximately $18.50 
 
per hour.
 
 
 
Claimant has held a variety of positions within the company.  
 
Some of the other positions which he has held are:  yard 
 
maintenance person, underground utility person, truck driver, 
 
lineman apprentice, storesman, apprentice cable splicer, 
 
journeyman cable splicer, and foreman of journeymen splicers.  
 
During his tenure as a foreman, claimant engaged in hands on 
 
activities.  He was what is commonly known as a working foreman.
 
The parties have stipulated that claimant sustained two work-related 
 
injuries.  The first one occurred on September 15, 1986.  The 
 
second injury occurred on April 18, 1991.  Both injuries involved 
 
claimant's back.  
 
 
 
When claimant sustained his first work-related injury, he was 
 
working as a foreman of journeymen splicers.  He supervised a crew 
 
 
 
 
 

 
 
 
 
 
 
 
consisting of 2-5 employees.  His duties included directing, 
 
maintaining, and installing cables in the downtown area of Des Moines.  
 
The job required claimant to use ladders in order to climb into 
 
manholes.  He engaged in heavy lifting, bending, stooping, kneeling, 
 
standing, including standing on ladders for extended periods of 
 
time, sitting, twisting, and reaching above his head.
 
Prior to his 1986 work injury, claimant was capable of performing 
 
the daily tasks which were assigned to him.  He voiced no 
 
complaints to his supervisors relative to the job duties he was 
 
required to perform.
 
 
 
After the 1986 work injury, claimant was treated by Robert Hayne, 
 
M.D., the company designated surgeon.  He diagnosed claimant 
 
as having an acutely herniated disk at the 5th lumbar interspace, 
 
right side.  On January 6, 1987, Dr. Hayne performed a lumbar 
 
laminectomy.  (Exhibit page 441)  Claimant's condition vastly 
 
improved after the surgery.  He described his recovery as "miraculous."  
 
The undersigned deputy quite agrees; the recovery was "miraculous."   
 
According to Dr. Hayne, claimant reached maximum medical improvement 
 
three months after the surgery.  Initially, Dr. Hayne released 
 
claimant to return to work but with restrictions.  The physician 
 
restricted claimant from lifting greater than 35 pounds.  He also 
 
placed some reasonable restrictions on claimant with respect to his 
 
work duties.  Claimant was precluded from bending forward in a 
 
repetitious manner and from twisting his back repetitively.  
 
(Ex. pp. 523-524)
 
 
 
Dr. Hayne later rescinded the restrictions he had placed upon 
 
claimant.  Claimant had specifically requested a release without 
 
restrictions so he could return to his former position.   He 
 
informed the surgeon that he was capable of performing his work.  
 
As of May 21, 1987, claimant was released to return to work 
 
with no restrictions.  (Ex. p. 491)  Claimant returned to his 
 
position as a foreman journeyman splicer.  
 
 
 
Claimant testified that he had a few aches and pains upon his 
 
return to work.  However, he testified he had no problems 
 
performing his job.  Dr. Hayne testified that claimant had not 
 
been in for medical treatment between July of 1988 and May 3, 
 
1991.  
 
 
 
Dr. Hayne opined that as of November 27, 1987 claimant had 
 
sustained a permanent impairment of eight to nine percent.  Defendant 
 
paid claimant 45 weeks of permanent partial disability benefits. 
 
The date the last payment was made was October 17, 1988.
 
While claimant continued to work as a foreman of the journeymen 
 
splicer, he did encounter some personnel problems with his 
 
then supervisor, Mark White.  Some of the problems were related 
 
to miscommunications between claimant and Mr. White over 
 
claimant's physical capabilities to perform the jobs of a foreman.  
 
Other problems dealt with situations unrelated to claimant's 
 
work injury.  Nevertheless, claimant continued in the same position.
 
On April 18, 1991, claimant sustained another work-related injury 
 
to his back.  Claimant sought a medical opinion from David Berg, 
 
D.O., company physician.  Dr. Berg's office notes of the day 
 
reflected that: 
 
 
 
This 40 year old male who works for Iowa Power comes in with low 
 
back pain with radiation into both inguinal areas and down the 
 
posterior aspect of his right leg.  I took care of John at Sports 
 
Medicine.  At that time he had herniated disk.  I believe it was 
 
L5-S1 and he had surgery by Dr. Haine [sic] and has gotten 
 
along fairly well since then.  He denies any injury to his back.  
 
States he was doing nothing unusual at work, woke up this 
 
morning with severe pain in his low back and radiation to his 
 
right leg and bilateral groin aeas [sic].  He states that he 
 
had a similar incident last Thursday wherehe [sic] woke up 
 
with severe pain in his back without any apparent injury, 
 
although at that time he had no radiation to his inguinal areas, 
 
stayed at home an (sic) rested in bed, the next day he woke up 
 
and was pain free and returned back to work.
 
 
 

 
 
 
 
 
 
 
EXAMINATION:  Alert, cooperative white male in mild to moderate 
 
acute distress.  Exam of the low back there is no tenderness 
 
over the lumbar spine, disk spaces, or soft tissues.  ROM of 
 
the lumbar spine is decreased in forward flexion.  He has normal 
 
side bending, rotation, and extension.  Straight leg raising is 
 
positive on the right at approximately 30o, positive on the left 
 
at approximately 45o.  DTRs are +2/4 and symmetrical.  He can 
 
walk on his heels and toes with pain in his back.  Sneezing 
 
and coughing does increase his back pain and right radiculopathy.  
 
X-ray of the lumbar spine reveals decreased disk space between 
 
L4-5 and L5-S1 with evidence of degenerative disk disease at 
 
these levels.  (unreadable)
 
 
 
IMPRESSION:  1.  Acute myofascial back strain.
 
     2.  Possible L4-5 lumbar disk                                                herniation.
 
 
 
(Ex. pp. 402-403)
 
 
 
X-rays were taken on the same day.  The radiologist, Michael A. 
 
Disbro, M.D., opined:  "Lower lumbar disc degeneration, without 
 
acute abnormality."  (Ex. p. 404)
 
 
 
Claimant returned to Dr. Hayne in May of 1991.  The treating 
 
physician ordered a MRI.  Dr. Hayne ordered a myelogram.  The 
 
myelogram indicated that claimant had a central disk protrusion 
 
at the L4-5 level.  (Ex. p. 513)  Subsequent to receiving the 
 
results of the myelogram, Dr. Hayne advised claimant not to lift 
 
more than 40 or 50 pounds and not to engage in repetitive bending.  
 
(Ex. p. 509)  As of July 8, 1991, Dr. Hayne released claimant 
 
to return to his regular duties.  No restrictions were imposed upon 
 
claimant.  (Ex. p. 508)  On November 12, 1991, Dr. Hayne issued 
 
an opinion relative to claimant's condition.  He opined that:
 
John Amodeo has been seen by me in the past.  He underwent a 
 
laminectomy in January, 1987, for a herniated disc at L5/S1 on 
 
the right.  He injured his back again at work on April 17th at 
 
which time he picked up a heavy street light and developed pain 
 
in the right leg which increased in severity.  A myelogram was carried 
 
out on June 10th, and this shows a large deformity at L4/5 
 
consistent with a central disc protrusion.  He has been treated 
 
conservatively, and with this treatment, he has improved.
 
I feel that he has sustained an additional nine percent total 
 
impairment as a result of his recent injury.
 
(Ex. p. 452)
 
 
 
Claimant returned once again to his position as a foreman of the 
 
journeymen splicers.  The record indicated that during the early 
 
part of 1992 claimant was treated by the company physician, 
 
James Blessman, M.D.  Dr. Blessman treated claimant for "chronic 
 
back pain."  (Ex. p. 421)
 
 
 
In early 1992, claimant was also seen By Daniel McGuire, M.D., 
 
the company authorized physician.  In his office note of   
 
January 23, 1992, Dr. McGuire opined that:
 
 
 
PLAN:  Based on what I have seen, I would not recommend surgical 
 
intervention to him.  Based on what he is telling me, it seems 
 
that he should be able to continue doing his job with Iowa Power.  
 
I would not prevent him from doing his current job.  I realize 
 
that he has some aches and pains.  I realize that in the 
 
future he may twist again and have an increase in his aches 
 
and pains, but I see no specific reason to keep him from doing 
 
his current job.
 
(Ex. p. 397)
 
 
 
In his report of February 27, 1992, Dr. McGuire determined the 
 
following:
 
 
 
It appears that he has had the one surgery.  He has had two 
 
or three problems with episodes of problems since that time as 
 
is documented by some further diagnostic studies.  On review, 
 
I do not see any acute changes at that L4-5 level.  I do not 
 
believe that anyone has offered him surgical intervention....
 
 
 

 
 
 
 
 
I see no reason to assign any disability, impairment or 
 
restrictions as pertains to the incident from 1991.  I think 
 
Mr. Amodeo is to be congratulated for continuing to work and 
 
for continuing to do his job.
 
(Ex. p. 399)
 
 
 
Claimant continued in his position as a cable splicer foreman 
 
until June of 1992 when claimant was medically disqualified 
 
from that job.  Claimant's medical disqualification was unrelated 
 
to any of claimant's back injuries.  His medical disqualification 
 
was the result of claimant's inability to wear a respirator as 
 
required by the Division of Labor Services under administrative 
 
rules governing occupational safety and health.  He was 
 
medically disqualified because it was determined in 1992 that 
 
claimant had a deviated septum and he was unable to breathe properly 
 
when wearing a respirator.  After his medical disqualification, 
 
claimant was forced to accept a position pursuant to the 
 
collective bargaining agreement which was in effect.  Claimant 
 
"bumped into" the position of storesman.  His rate of pay 
 
went from $20.43 per hour down to $14.93 per hour.  Claimant 
 
experienced some stress over the change in his rate of pay.  
 
 
 
He testified in his deposition that:
 
 
 
Q.  If it had not been for a respirator restriction, you 
 
would continue to be working as a cable splicer foreman?
 
 
 
A.  Probably.
 
(Ex. p. 337)
 
 
 
Later in his deposition, claimant testified that:
 
 
 
Q.  And if it hadn't been for the difficulty with your nose 
 
and the respirator, you would be still be working as cable 
 
splicer foreman right now?
 
 
 
A.  That's correct, probably.
 
(Ex. pp. 326-325)
 
 
 
Claimant did not return to Dr. Hayne's office for follow-up 
 
back care until September 17, 1992.  By October of 1992, 
 
claimant's condition showed a marked improvement.  
 
(Ex. p. 471)
 
 
 
Dr. Hayne's examination on January 20, 1993, revealed that:
 
The new job, he said, does not pay as much, and the examination 
 
was such that it showed the reflexes to be 1+.  Forward motion 
 
of the lumbar spine was mildly limited, and impression at 
 
that time following the examination was that he was to continue 
 
to be careful in assessing for himself the lifting that he 
 
was doing as to whether it was such as to exceed his tolerance, 
 
in other words, just to be careful.
 
  (Ex. p. 477)
 
 
 
Dr. Hayne, as of January 20, 1993, opined that claimant would 
 
be able to handle the position as a storesman.  (Ex. p. 472)  
 
 
 
The storesman's position required any employee to:
 
 
 
Performs duties in connection with receiving, inspecting, 
 
recording, storing and issuing new, returned and reclaimed 
 
stores materials, tools, supplies, and equipment in the 
 
storeroom and other designated areas.  Salvages and reclaims 
 
materials and supplies and makes minor repairs on tools and 
 
equipment.  Operates material handling equipment and vehicles; 
 
loads, unloads, crates and handles materials and supplies and 
 
delivers to designated locations and picks up material as 
 
required....
 
(Ex. p. 463)
 
 
 
At his hearing, claimant testified that he is physically capable 
 
of handling the position of storesman.  He also testified that 
 
when he is required to move materials, he uses carts and 
 
equipment to assist him or else he requests assistance from 
 
 
 

 
 
 
 
 
co-employees.  Claimant also testified at the hearing that he 
 
does not lift more than 40 pounds at any one given time.  On 
 
rebuttal, claimant testified that he operates a computer for 50 
 
to 60 percent of his work time.  
 
 
 
Mark White testified that the storesman position is more 
 
physically demanding than is the position of cable splicer foreman.  
 
Mr. White based his opinion on the fact that there is the 
 
requirement of handling material from a shelf, placing material 
 
onto a device, and loading material onto a truck.  Mr. White 
 
also testified that if restrictions had been imposed upon claimant, 
 
he would not be able to work as a storesman.
 
 
 
Linn Christensen, a vocational rehabilitation specialist testified 
 
on behalf of defendant.  According to the specialist, the 
 
position of cable splicer foreman involved walking and standing 
 
on concrete from 2 to 4 hours per day.  Sitting was also 
 
required for 4 to 6 hours per day.  According to the witness, 
 
the position also required an employee to lift and carry 
 
from 2 to 202 pounds, and to lift and carry on a daily basis 
 
from 12 to 14 times per day.  In addition, the expert testified 
 
that the job involved climbing, stooping and bending, pushing 
 
and pulling.
 
 
 
With respect to the position of storesman, the vocational expert 
 
testified that walking and standing was involved for 5 to 6 
 
hours per day, that sitting was involved for 2 to 3 hours per 
 
day, and that lifting up to 300 pounds was involved.  
 
The witness testified that the cable splicer foreman's position 
 
was in the medium to heavy job category.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
The claimant has the burden of proving by a preponderance of 
 
the evidence that the injuries are a proximate cause of the 
 
disability on which the claim is based.  A cause is proximate if 
 
it is a substantial factor in bringing about the result; it 
 
need not be the only cause.  A preponderance of the evidence 
 
exists when the causal connection is probable rather than merely 
 
possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
(Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
(Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain 
 
of expert testimony.  The expert medical evidence must be 
 
considered with all other evidence introduced bearing on the causal 
 
connection between the injury and the disability.  The weight 
 
to be given to any expert opinion is determined by the finder 
 
of fact and may be affected by the accuracy of the facts relied 
 
upon by the expert as well as other surrounding circumstances.  
 
The expert opinion may be accepted or rejected, in whole or in 
 
part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); 
 
Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); 
 
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
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 the employee is fitted.  
 
Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
(1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
(1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment 
 
and disability are not synonymous.  The degree of industrial 
 
disability can be much different than the degree of impairment 
 
because industrial disability references to loss of earning 
 
capacity and impairment references to anatomical or functional 
 
abnormality or loss.  Although loss of function is to be 
 
considered and disability can rarely be found without it, it 
 
is not so that a degree of industrial disability is proportionally 
 
related to a degree of impairment of bodily function.
 
 
 

 
 
 
 
 
 
 
Factors to be considered in determining industrial disability 
 
include the employee's medical condition prior to the injury, 
 
immediately after the injury, and presently; the situs of the 
 
injury, its severity and the length of the healing period; the 
 
work experience of the employee prior to the injury and after 
 
the injury and the potential for rehabilitation; the employee's 
 
qualifications intellectually, emotionally and physically; 
 
earnings prior and subsequent to the injury; age; education; 
 
motivation; functional impairment as a result of the injury; 
 
and inability because of the injury to engage in employment 
 
for which the employee is fitted.  Loss of earnings caused by 
 
a job transfer for reasons related to the injury is also relevant.  
 
Likewise, an employer's refusal to give any sort of work to an 
 
impaired employee may justify an award of disability.  McSpadden v. 
 
Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are matters 
 
which the finder of fact considers collectively in arriving at 
 
the determination of the degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the 
 
factors are to be considered.  Neither does a rating of functional 
 
impairment directly correlate to a degree of industrial disability 
 
to the body as a whole.  In other words, there are no formulae 
 
which can be applied and then added up to determine the degree of 
 
industrial disability.  It therefore becomes necessary for the 
 
deputy or commissioner to draw upon prior experience as well as 
 
general and specialized knowledge to make the finding with regard 
 
to degree of industrial disability.  See Christensen v. Hagen, 
 
Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 
 
529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., 
 
Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 
 
(App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid 
 
in relation to 500 weeks as the disability bears to the body as a 
 
whole.  Section 85.34.
 
 
 
There is sufficient evidence to conclude that the work injuries 
 
on September 15, 1986 and on April 18, 1991 both resulted in 
 
permanent conditions to claimant's back.  There are objective 
 
findings to substantiate each work injury.  The treating physician, 
 
Dr. Hayne causally relates claimant's condition to the two work 
 
injuries.  He opines there is a permanent impairment to claimant's 
 
low back as a result of the first injury in the amount of 8 to 
 
9 percent.  He also opines there is an additional 9 percent 
 
functional impairment as a result of the second injury.  His 
 
opinion is accorded a great deal of weight since he has been 
 
the treating physician for more than 7 years.  He has had numerous 
 
opportunities to examine, evaluate, and re-evaluate claimant.  
 
He is the surgeon who has performed the surgery on claimant's 
 
low back condition.  He has ordered and reviewed many diagnostic 
 
tests relevant to claimant's condition.  His familiarity with 
 
the case is unquestionable.  
 
 
 
Dr. McGuire, on the other hand is not as familiar with the case 
 
as is Dr. Hayne.  Dr. McGuire has admitted in writing that he 
 
needed to review claimant's records several times in order to have 
 
an overall picture of claimant's medical profile.  (Ex. p. 399)  
 
He holds the opinion there is no permanency as a result of the 
 
second injury.  His opinion is directly contrary to the opinion 
 
of Dr. Hayne, another authorized treating physician.  However, 
 
Dr. McGuire has only examined claimant on a few occasions.  He 
 
is not the surgeon who has performed the surgery.  In addition, 
 
Dr. McGuire does not have the same number of years of experience 
 
which Dr. Hayne has.  Claimant has established the requisite 
 
burden of proof that he has sustained permanent impairments to 
 
his low back as a result of both work injuries in question.  
 
Claimant alleges that he has sustained an industrial disability 
 
as a result of the two work injuries.  There is no question 
 
there are objective findings to support his permanent condition.  
 
 
 

 
 
 
 
 
 
 
As mentioned several times before, claimant has recovered from 
 
his surgery.  His progress is quite remarkable.  He has been 
 
motivated to rehabilitate himself and to return to work.  He 
 
has exhibited a strong desire to return to his former condition.  
 
After having reached maximum medical improvement from the first 
 
work injury, claimant returned to work.  At that time, 
 
restrictions were lifted from him.  Dr. Hayne has acknowledged 
 
there are some restrictions which are inherent to claimant's 
 
job.  For example:  Dr. Hayne has testified, claimant is not 
 
allowed to lift more than 50 pounds or to engage in 
 
repetitive bending.  (Ex. p. 522)  Since the restrictions 
 
are outside of the job, claimant can return to work.  He had 
 
returned to the same job at the same rate of pay.  Claimant 
 
had performed his job duties in a satisfactory manner and 
 
without incident from May 21, 1987 through the date of the 
 
second injury, April 18, 1991.  
 
 
 
It is the determination of the undersigned that as a result 
 
of the work injury on September 15, 1986, claimant has 
 
sustained a permanent partial disability in the sum of 10 
 
percent.  He is entitled to 50 weeks of permanent partial disability 
 
benefits at the stipulated rate of $687.00 per week and 
 
commencing on April 6, 1987.
 
 
 
Claimant has also proven by a preponderance of the evidence 
 
that he has sustained an industrial disability as a result of 
 
the work injury on April 18, 1991.  This deputy recognizes 
 
that even after the second work injury, claimant had returned 
 
to his former job.  Claimant once again exhibited outstanding 
 
motivation.   Defendant is commended for returning claimant 
 
to his same position at the same rate of pay.  Claimant had 
 
continued in the job of foreman ofjourneymen splicers until 
 
he was medically disqualified from it.  The medical disqualification 
 
had not been due to any work injuries.  Rather the 
 
disqualification was for reasons other than the back condition.  
 
The disqualification had resulted because claimant could 
 
not wear a respirator which is required by the Division of Labor 
 
Services.
 
 
 
Once claimant had been medically disqualified from his position 
 
as a cable splicer foreman, he then "bumped into" his current 
 
position of storesman.  He is now compensated at a lesser rate 
 
of pay.  Initially, the reduction in wages had nothing to do 
 
with the back condition.  However, as of January 20, 1993, Dr. 
 
Hayne opined that claimant is to avoid lifting greater than 
 
35 to 40 pounds; he is to avoid the frequent climbing of 
 
ladders;, and he is to alternate between sitting, standing, 
 
and walking.  (Ex. p. 501-502)  His current restrictions 
 
are the result of the second work injury.  Consequently, claimant 
 
is precluded from working at his former position.   Now his 
 
back condition prevents him from ever returning to the position 
 
of cable splicer foreman which pays $20.43 per hour.  
 
(Ex. pp. 500-501)  He has experienced a loss of earning 
 
capacity and an actual loss of wages.  He can no longer perform 
 
the same duties.  His work injuries prevent him from 
 
engaging in the same positions, even if he is able to wear a 
 
respirator.  It is the determination of the undersigned 
 
that claimant has sustained a 10 percent permanent partial 
 
disability as a result of the work injury on April 18, 1991.  
 
Claimant is entitled to 50 weeks of benefits commencing on 
 
June 14, 1991 and payable at the stipulated rate of $785.00 
 
per week.
 
 
 
                               ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
With respect to file number 834562, defendant shall pay unto 
 
claimant fifty (50) weeks of permanent partial disability benefits 
 
at the stipulated rate of four hundred two and 49/l00 dollars 
 
($402.49) per week and commencing on April 6, 1987.
 
With respect to file number 986903, defendant shall pay unto 
 
 
 

 
 
 
 
 
Claimant fifty (50) weeks of permanent partial disability benefits 
 
at the stipulated rate of four hundred forty-three and 34/l00 
 
dollars ($443.34) per week and commencing on June 14, 1991. 
 
Defendants shall take credit for all permanent partial disability 
 
benefits previously paid to claimant as a result of file number 
 
834562.
 
 
 
Accrued benefits are to be paid in a lump sum together with 
 
statutory interest at the rate of ten percent (10%) per year.
 
Costs are taxed to defendant pursuant to rule 343 IAC 4.33 and as 
 
set forth in claimant's request for costs.
 
 
 
Defendant shall file a claim activity report as requested by 
 
this division and pursuant to rule 343 IAC 3.1.
 
 
 
 
 
 
 
Signed and filed this ____ day of August, 1993.           
 
                                       
 
                                       
 
                                       ______________________________                  
 
                                       MICHELLE A. McGOVERN          
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Thomas J. Reilly
 
Attorney at Law
 
4900 University  STE 200
 
Des Moines, Iowa  50311
 
 
 
Mr. Cecil L. Goettsch
 
Attorney at Law
 
801 Grand Avenue
 
Suite 3700
 
Des Moines, Iowa  50309
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1800
 
                                                Filed August 27, 1993
 
                                                MICHELLE A. McGOVERN
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOHN AMODEO,                         File Nos. 834562
 
                                                           986903
 
                 Claimant, 
 
                                              A R B I T R A T I O N
 
            vs.       
 
                                                 D E C I S I O N
 
            IOWA POWER AND LIGHT COMPANY, 
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            5-1800
 
            Claimant sustained two work related injuries which each 
 
            resulted in 10 percent permanent partial disabilities.  
 
            These were classic low back conditions.  Claimant had 
 
            returned to work at defendant's business establishment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         AMY Y. SCHULTE as Administrator
 
         of the Estate of GERALD W.
 
         SCHULTE,                                  File No. 834668
 
         
 
              Claimant,                            D E C I S I O N
 
         
 
         vs.                                            O N
 
         
 
         BOYER VALLEY COMPANY, INC.,              E Q U I T A B L E
 
         
 
              Employer,                       A P P 0 R T I O N M E N T
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding to determine the apportionment of 
 
         compensation benefits payable as a result of the death of Gerald 
 
         Schulte which arose out of and in the course of his employment.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner August 31, 1988.  The record was 
 
         considered fully submitted at the conclusion of the hearing.  The 
 
         record in this matter consists of the testimony of Amy Schulte, 
 
         Christine Ellis, and Susan Schulte; and exhibits 1 through 6, 
 
         inclusive.
 
         
 
                                      ISSUE
 
         
 
              The sole issue presented for resolution is how the benefits 
 
         resulting from the death of Gerald Schulte should be 
 
         apportioned.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Decedent, Gerald W. Schulte, died on October 6, 1986 as a 
 
         result of personal injuries arising out of and in the course of 
 
         his employment with Boyer Valley Company, Inc., at Denison, Iowa. 
 
          At the time of his death, decedent was married to Amy Y. Schulte 
 
         and with her had two children, Cody William Schulte, born 
 
         November 27, 1984, and Taya LaRae Schulte, born June 13, 1986.  
 
         Decedent was previously married to Christine Ellis and the issue 
 
         of that marriage is Susan Marie Schulte, born February 13, 1976.  
 
         The marriage between Gerald and Christine ended on May 9, 1977 
 
         when a decree of dissolution was entered in the District Court of 
 
         Iowa in and for Carroll County, the terms of which provided that 
 
         decedent pay child support in the amount of $125 per month.  
 
         Decedent was current in this obligation at the time of his 
 
         death.
 
         
 
              Amy Schulte, Cody Schulte, and Taya Schulte each receive 
 
         $358 per month in social security benefits.  Amy testified that 
 
         the family's average expenses at the time of decedent's death 
 
         were $1,875 per month including the child support obligation to 
 

 
         
 
         
 
         SCHULTE V. BOYER VALLEY COMPANY, INC.
 
         PAGE   3
 
         
 
         
 
         Susan Marie Schulte.  (See Exhibit 5)  Amy did not work outside 
 
         the home and she testified the family was wholly dependent upon 
 
         decedent's earnings.  In 1985, decedent had earnings of $28,632 
 
         and in 1986 he had earnings of $23,916.
 
         
 
              Christine Ellis testified that up until the time of 
 
         decedent's remarriage, decedent regularly exercised visitation 
 
         with Susan, that he provided, in addition to the child support 
 
         payments, food and clothing, that he had input on how Susan was 
 
         raised, and Christine characterized their overall relationship as 
 
         generally good."  Christine explained she is currently married to 
 
         Mr. Ellis who paid for their home without the necessity of 
 
         financing, who will turn 62 in October 1988, who is a 
 
         self-employed dairy owner, and who earns approximately $14,000 
 
         per year.  Christine, who has another child about to turn two 
 
         years old, does not work outside the home.  Christine stated that 
 
         Susan has a savings account with a balance of $2,162 which 
 
         consists of the workers' compensation benefits she has received 
 
         thus far and that Susan also receives $358 per month in social 
 
         security benefits.  Christine estimated Susan's estimated 
 
         expenses to be $449.16 which, when considering the amount of 
 
         social security benefits she receives, leaves a monthly deficit 
 
         of $91.16.
 
         
 
              Susan Schulte testified she is currently 12 years old and 
 
         that she went on trips with her late father to such places as 
 
         Kansas City, Omaha and Texas, and that he gave her gifts and 
 
         brought her food.  Susan resides with her mother and stepfather.
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 85.43 provides:
 
         
 
                 If the deceased employee leaves a surviving spouse 
 
              qualified under the provisions of section 85.42, the 
 
              full compensation shall be paid to the surviving 
 
              spouse, as provided in section 85.31; provided that 
 
              where a deceased employee leave a surviving spouse and 
 
              a dependent child or children the industrial 
 
              commissioner may make an order of record for an 
 
              equitable apportionment of the compensation payments.
 
         
 
                 If the spouse dies, the benefits shall be paid to 
 
              the person or persons wholly dependent on deceased, if 
 
              any, share and share alike.  If there are none wholly 
 
              dependent, then such benefits shall be paid to partial 
 
              dependents, if any, in proportion to their dependency 
 
              for the periods provided in section 85.31.
 
         
 
                 If the deceased leaves dependent child or children 
 
              who was or were such at the time of the injury, and the 
 
              surviving spouse remarries, then and in such case, the 
 
              payments shall be paid to the proper compensation 
 
              trustee for the use and benefit of such dependent child 
 
              or children for the period provided in section 85.31.
 
         
 
              Iowa Code section 85.42 provides, in part:
 
         
 
                   The following shall be conclusively presumed to be 
 
              wholly dependent upon the deceased employee:
 
         
 
              1.  The surviving spouse ....
 
         
 
                ....
 
         
 
              2.  A child or children under eighteen years of age, 
 
              and over said age if physically or mentally 
 
     
 
         
 
         
 
         
 
         
 
         SCHULTE V. BOYER VALLEY COMPANY, INC.
 
         PAGE   3
 
         
 
         
 
              incapacitated from earning, whether actually dependent 
 
              for support or not upon the parent at the time of the 
 
              parent's death.  An adopted child or children shall be 
 
              regarded the same as issue of the body.  A child or 
 
              children, as used herein, shall also include any child 
 
              or children conceived but not born  at the time of the 
 
              employee's injury, and any compensation payable on 
 
              account of any such child or children shall be paid 
 
              from the date of their birth.  A stepchild or 
 
              stepchildren shall be regarded the same as issue of the 
 
              body only when the stepparent has actually provided the 
 
              principal support for such child or children.
 
         
 
              Iowa Code section 85.31 provides, in part:
 
         
 
                 1.  When death results from the injury, the employer 
 
              shall pay the dependents who were wholly dependent on 
 
              the earnings of the employee for support at the time of 
 
              the injury, during their lifetime, compensation upon 
 
              the basis of eighty percent per week of the employee's 
 
              average weekly spendable earnings, commencing from the 
 
              date of death as follows:
 
         
 
                 a.  To the surviving spouse for life or until 
 
              remarriage, provided that upon remarriage two years' 
 
              benefits shall be paid to the surviving spouse in a 
 
              lump sum, if there are no children entitled to 
 
              benefits.
 
         
 
                 b.  To any child of the deceased until the child 
 
              shall reach the age of eighteen, provided that a child 
 
              beyond eighteen years of age shall receive benefits to 
 
              the age of twenty-five if actually dependent, and the 
 
              fact that a child is under twenty-five years of age and 
 
              is enrolled as a full-time student in any accredited 
 
              educational institution shall be a prima facie showing 
 
              of actual dependency.
 
         
 
         
 
              Iowa Code section 85.49 provides:
 
         
 
                 When a minor or mentally incompetent dependent is 
 
              entitled to weekly benefits under this chapter, chapter 
 
              85A or chapter 85B, payment shall be made to the clerk 
 
              of the district court for the county in which the 
 
              injury occurred, who shall act as trustee, and the 
 
              money coming into the clerk's hands shall be expended 
 
              for the use and benefit of the person entitled to it 
 
              under the direction and orders of a district judge.  
 
              The clerk of the district court, as trustee, shall 
 
              qualify and give bond in an amount as the district 
 
              judge directs, which may be increased or diminished 
 
              from time to time.  If the domicile or residence of the 
 
              minor or mentally incompetent dependent is within the 
 
              state but in a county other than that in which the 
 
              injury to the employee occurred the industrial 
 
              commissioner may order and direct that weekly benefits 
 
              be paid to the clerk of the district court of the 
 
              county of domicile or residence.
 
         
 
                 If the domicile or residence of such minor or 
 
              mentally incompetent dependent be outside the state of 
 
              Iowa the industrial commissioner may order and direct 
 

 
         
 
         
 
         
 
         SCHULTE V. BOYER VALLEY COMPANY, INC.
 
         PAGE   4
 
         
 
         
 
              that benefits to such minors or incompetents be paid to 
 
              a guardian, conservator, or legal representative duly 
 
              qualified under the laws of the jurisdiction wherein 
 
              the minors or incompetents shall be domiciled or 
 
              reside.  Proof of the identity and qualification of 
 
              such guardian, conservator, or other legal 
 
              representative shall be furnished to the industrial 
 
              commissioner.
 
         
 
                                 ANALYSIS
 
         
 
              Under Iowa Code section 85.42, the surviving spouse and 
 
         children under 18 years of age, whether actually dependent for 
 
         support or not upon the parent at the time of the parent's death, 
 
         are conclusively presumed dependents.  It is without dispute that 
 
         Amy, Cody, Taya and Susan are conclusively presumed dependents of 
 
         decedent and are thus entitled to a share in the benefits.  
 
         Unfortunately, perhaps, the statute does not determine how the 
 
         benefits shall be apportioned but leaves it to the discretion of 
 
         the industrial commissioner or his deputy to determine what is 
 
         equitable in the matter.  To do so, one must look beyond the fact 
 
         that all are dependents and what is, in fact, equitable for 
 
         equitable cannot and does not connote that each must receive an 
 
         equal or, the same, share.
 
         
 
              Amy, Cody and Taya have established they were wholly 
 
         dependent upon the earnings of decedent for their support.  Amy 
 
         does not work outside the home and the evidence fails to 
 
         establish there was any other outside source of income for this 
 
         family.  Clearly, Susan has not established the same point since, 
 
         up until the time of his death, Susan received $125 per month in 
 
         child support from her father and had expenses estimated at 
 
         almost $450 per month.  Likewise, even with the receipt of $358 
 
         per month in social security benefits, Susan's monthly expenses 
 
         will exceed her monthly financial resources.  While there was no 
 
         direct testimony of how the financial resources of Mr. Ellis, 
 
         Susan's stepfather, are used in the household, it is reasonable 
 
         to assume that some of his financial resources are available to 
 
         Susan since neither Susan nor Christine work outside the home.  
 
         In addition, Susan has placed all of her funds from the workers' 
 
         compensation benefits received to date into a savings account and 
 
         appears not to have had to resort to them for any of the list of 
 
         expenses.
 
         
 
              Susan, with the receipt of social security benefits, 
 
         estimates a monthly deficit of $91.16 while Amy, Cody and Taya 
 
         have an estimated monthly deficit of $678 after considering each 
 
         receives $358 per month in social security benefits.  Each, it 
 
         cannot be disputed, has their own hopes and dreams for the future 
 
         which will undoubtedly require some financing necessitating some 
 
         ability to save and therefore to have some financial resources 
 
         over and above expenses.  To be equitable, in the opinion of the 
 
         undersigned, each then should be able to meet their expenses and 
 
         still have something left for their savings.
 
         
 
              Accordingly, it is determined that Amy, Cody and Taya 
 
         Schulte are entitled to 85 percent of the weekly benefits or 
 
         $239.97 per week and that Susan Schulte is entitled to 15 percent 
 
         of the weekly benefits or $42.35 per week.  This allows each 
 
         family unit to meet their expense deficit and still be able to 
 
         save almost equal amounts for their future.
 
         
 
                                 
 

 
         
 
         
 
         
 
         SCHULTE V. BOYER VALLEY COMPANY, INC.
 
         PAGE   5
 
         
 
                                
 
                                FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Gerald Schulte's death on October 6, 1986 arose out of 
 
         and in the course of his employment.
 
         
 
              2.  At the time of his death, decedent was married to Amy Y. 
 
         Schulte and had two children, Cody William Schulte, and Taya 
 
         LaRae Schulte.
 
         
 
              3.  Decedent was previously married to Christine Ellis and 
 
         during this marriage fathered Susan Marie Schulte.
 
         
 
              4.  The marriage to Christine was dissolved May 9, 1977 and 
 
         decedent was required to pay $125 per month in child support 
 
         payments.
 
         
 
              5.  At the time of his death, decedent was current on his 
 
         child support payments.
 
         
 
              6.  Amy, Cody, Taya and Susan each receives $358 per month 
 
         in social security benefits and Amy, Cody and Taya were wholly 
 
         dependent on decedent's wages having no other source of income at 
 
         the time of decedent's death.
 
         
 
              7.  The family expenses for decedent, Amy, Cody and Taya at 
 
         the time of decedent's death were $1,875 and remain about the 
 
         same to date.
 
         
 
              8.  Susan's monthly expenses are $449.16 including a $50 
 
         housing allowance although she lives with her mother and 
 
         stepfather in a home which is paid for.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Amy, Cody, Taya and Susan Schulte are conclusively 
 
         presumed dependents of decedent and are entitled to a share in 
 
         the benefits payable as a result of the death of Gerald Schulte 
 
         which arose out of and in the course of his employment.
 
         
 
              2.  Amy, Cody and Taya Schulte are entitled to 85 percent of 
 
         the weekly benefits payable or $239.97 per week.
 
         
 
              3.  Susan Marie Schulte is entitled to a 15 percent share of 
 
         the benefits or $42.35 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto Amy Y. Schulte for herself and 
 
         for the benefit of Cody William Schulte and Taya LaRae Schulte 
 
         weekly benefits equal to eighty-five percent (85%) of the rate of 
 
         compensation or two hundred thirty-nine and 97/100 dollars 
 
         ($239.97) per week for as long as each is eligible to receive 
 
         benefits.
 
         
 
              Defendants are to pay unto the Clerk of District Court for 
 
         Woodbury County, Acting Trustee, for Susan Marie Schulte weekly 
 

 
         
 
         
 
         
 
         SCHULTE V. BOYER VALLEY COMPANY, INC.
 
         PAGE   6
 
         
 
         
 
         benefits equal to fifteen percent (15%) of the appropriate rate 
 
         of compensation or forty-two and 35/100 dollars ($42.35) until 
 
         such time she is no longer eligible to receive benefits.
 
         
 
              Should Amy Schulte remarry or should a child no longer be 
 
         eligible to receive benefits, those benefits shall be equally 
 
         divided among those individuals still eligible to receive 
 
         benefits at that time.
 
         
 
              Costs in this matter are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 9th day of September, 1988.
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Joseph B. Reedy
 
         Attorney at Law
 
         227 S Sixth St
 
         Council Bluffs, IA 51501
 
         
 
         Mr. Jack R. Gray
 
         Attorney at Law
 
         423 Court Street
 
         Rockwell City, IA 50579
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Bldg
 
         P.O. Box 1828
 
         Sioux City, IA 51102
 
         
 
 
 
 
 
 
 
 
 
 
                                               1200
 
                                               Filed September 9, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         AMY Y. SCHULTE as Administrator
 
         of the Estate of GERALD W.
 
         SCHULTE,                                  File No. 834668
 
         
 
              Claimant,                            D E C I S I O N
 
         
 
         vs.                                           O N
 
         
 
         BOYER VALLEY COMPANY, INC.,              E Q U I T A B L E
 
         
 
              Employer,                       A P P O R T I O N M E N T
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1200
 
         
 
              In a proceeding to determine the apportionment of 
 
         compensation benefits payable as a result of the death of Gerald 
 
         Schulte which arose out of and in the course of his employment, 
 
         it was determined the surviving spouse and decedent's children 
 
         from his current marriage were entitled to an 85% share and the 
 
         child from his previous marriage was entitled to a 15% share.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1108.50
 
                           Filed June 28, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES LANCASTER,              :
 
                                          :
 
                 Claimant,                :         File No. 834731
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ARA/SMITH,                    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1108.50
 
            Claimant proved neck injury was causally related to work, 
 
            but not other symptoms.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY GORMAN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 834841
 
            WESTERN INTERNATIONAL, INC.,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            THE HARTFORD,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            The record before the deputy has been reviewed de novo on 
 
            appeal.  The decision of the deputy granting defendants' 
 
            motion for summary judgment is affirmed and is adopted as 
 
            the final agency action in this case.
 
            Claimant shall pay all costs of this proceeding.
 
            Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Timothy J. Walker
 
            Mr. Thomas Henderson
 
            Attorneys at Law
 
            1300 First Interstate Bank Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 28, 1990
 
            DRR
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DOROTHY GORMAN,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 834841
 
            WESTERN INTERNATIONAL, INC.,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            THE HARTFORD,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's ruling on motion for 
 
            summary judgment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DUANE BEVINS, 	      :
 
                      		      :
 
                 Claimant, 	      :	
 
		                      :
 
            		vs. 	      :
 
                      		      :     File Nos. 834865/881784
 
            FARMSTEAD FOODS,          :               877458/888705
 
                      		      :
 
                 Employer, 	      :
 
		                      :           A P P E A L
 
            		and           :
 
		                      :         D E C I S I O N
 
            EMPLOYERS MUTUAL COMPANY, :
 
 		                      :
 
                 Insurance Carrier,   :
 
 		                      :
 
         		   and        :
 
                      		      :
 
            SECOND INJURY FUND OF IOWA,:
 
 		                      :
 
                 Defendants.	      :
 
            ___________________________________________________________
 
            Subsequent to the filing of the appeal and cross-appeal, 
 
            claimant and defendants entered into a full commutation 
 
            settlement that was approved by this agency.  The sole 
 
            remaining issues on appeal concern the liability of the 
 
            Second Injury Fund of Iowa.
 
             The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case, with the following additional analysis:
 
            The liability of the Second Injury Fund is not limited to 
 
            cases where the prior loss is confined to a "scheduled" 
 
            member.  The list of body members mentioned in Iowa Code 
 
            section 85.64 differs from the schedule of members set forth 
 
            in Iowa Code section 85.34(2).  A prior loss for purposes of 
 
            section 85.64 must result in the loss or loss of use of a 
 
            hand, arm, foot, leg or eye. 
 
            It is also established in the law that a prior loss that 
 
            affects a member enumerated in section 85.64 will trigger 
 
            fund liability even if the loss extends to the body as a 
 
            whole.  In such a case, a determination must be made as to 
 
            the disability caused by the prior loss.  Second Injury Fund 
 
            v. Neelans, 436 N.W.2d 355 (Iowa 1989); Second Injury Fund 
 
            v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. 
 
            Mich Coal Co., 274 N.W.2d 300 (Iowa 1979).  
 
            The deputy determined that, as a result of his two injuries 
 
            on February 15, 1988, claimant had a 55 percent industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability.  In the commutation proceedings, claimant and 
 
            defendants stipulated that as a result of the work injury of 
 
            February 15, 1988, claimant had an industrial disability of 
 
            56 percent.  The Second Injury Fund of Iowa was not a party 
 
            to the stipulation, and is therefore not bound by it.  
 
            Similarly, since the Second Injury Fund of Iowa was not a 
 
            party to the commutation proceedings, it is not bound by the 
 
            approval of the commutation.  Although the determination of 
 
            56 percent industrial disability as a result of the February 
 
            15, 1988, injuries is binding on the defendants and 
 
            claimant, claimant's disability from those injuries for 
 
            purposes of determining the amount of offset or credit the 
 
            fund is entitled to in this appeal will be determined anew.  
 
            The deputy's findings of fact and conclusions of law 
 
            concerning claimant's industrial disability subsequent to 
 
            his February 15, 1988 injuries is also adopted herein.  That 
 
            is, claimant's total overall industrial disability as a 
 
            result of the combined effect of his injuries does not 
 
            exceed the disabilities from his various injuries when 
 
            viewed in isolation.  Claimant's total present industrial 
 
            disability is fully compensated by the awards against 
 
            defendants for the prior losses and the February 15, 1988 
 
            injuries.  The Second Injury Fund is not obligated to pay 
 
            claimant any further benefits. 
 
            Interest accrues from the onset of permanency in arbitration 
 
            cases.  For case number 834865, claimant's right elbow 
 
            injury on September 17, 1986, claimant's healing period 
 
            ended on November 10, 1986.  Claimant's permanency began at 
 
            that time, not when it was rated over a year later by the 
 
            physician.  Interest on unpaid benefits for this injury 
 
            shall accrue from November 10, 1986. 
 
            Defendants and claimant shall jointly pay the costs of the 
 
            appeal, including the preparation of the appeal transcript, 
 
            in equal shares. 
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Peters
 
            Attorney at Law
 
            1200 MNB Bldg.
 
            Cedar Rapids, Iowa 52401
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, Iowa 50312
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3202; 3800
 
            Filed November 26, 1991
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DUANE BEVINS,	      :
 
 		                      :
 
                 Claimant,	      :
 
		                      :
 
            		vs.           :
 
		                      :     File Nos. 834865/881784
 
            FARMSTEAD FOODS,          :               877458/888705
 
                      		      :
 
                 Employer,  	      :
 
		                      :           A P P E A L
 
           		 and          :
 
		                      :         D E C I S I O N
 
            EMPLOYERS MUTUAL COMPANY, :
 
		                      :
 
                 Insurance Carrier,   :
 
                      		      :
 
		            and       :
 
                		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            3202
 
            Deputy's award of permanent partial disability affirmed.  
 
            However, deputy's statement that Second Injury Fund was not 
 
            liable because the injury to claimant's arm extended to the 
 
            body as a whole was corrected in appeal decision.  Under 
 
            Neelans, Braden, and Mich Coal, even an injury to the body 
 
            as a whole may qualify for Second Injury Fund benefits as 
 
            long as a member enumerated in 85.64 is affected.  The 
 
            deputy must ascertain the industrial disability attributable 
 
            to that injury to determine the "credit" the fund receives 
 
            for that injury.  
 
            
 
            3800
 
            Deputy's determination of interest accrual changed on 
 
            appeal.  Interest on unpaid benefits accrues from the onset 
 
            of permanency (end of the healing period) and not from the 
 
            date claimant was given a permanency rating by his doctor.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HOBBS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 834874
 
            WRIGHT TREE SERVICE,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed June 30, 1987.  Claimant sustained an injury 
 
            arising out of and in the course of his employment with 
 
            defendant Wright Tree Service on September 16, 1986, while 
 
            lifting a log or branch.  He now seeks benefits under the 
 
            Iowa Workers' Compensation Act from Wright Tree Service and 
 
            its insurance carrier, United States Fidelity and Guaranty 
 
            Company.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on September 14, 1989.  The record consists of 
 
            joint exhibits 1 through 13 and defendants' exhibit C along 
 
            with the testimony of the following witnesses:  claimant, 
 
            Robert Burris and James Zaugg.  In addition, claimant's 
 
            exhibit 14 and defendants' exhibits A and B were offered 
 
            over objection, ruling being reserved for this decision.
 
            
 
                 Defendants' objection to claimant's exhibit 14 is 
 
            overruled and the exhibit is hereby received.
 
            
 
                 Claimant's objection to defendants' exhibit A is 
 
            sustained as to the first two pages (8 and 9) for the reason 
 
            that those pages have not been shown to relate to claimant 
 
            as opposed to an unrelated individual by the same name; 
 
            accordingly, they are not relevant to any issue in this 
 
            case.  However, claimant's objection to the last three pages 
 
            of that exhibit (10, 11 and 12) is overruled and those pages 
 
            are hereby received.
 
            
 
                 Claimant's objection to defendants' exhibit B is 
 
            overruled and the exhibit is hereby received.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Wright Tree 
 
            Service on September 16, 1986; that if the injury caused 
 
            temporary disability, claimant is entitled to healing period 
 
            or temporary total disability from September 17 through 
 
            November 23, 1986; that if claimant has sustained permanent 
 
            disability, it is an industrial disability to the body as a 
 
            whole; that affirmative defenses are waived; that medical 
 
            benefits are no longer at issue.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused either temporary or permanent disability 
 
            and the extent of the latter; claimant's rate of 
 
            compensation (his gross weekly earnings at the time of 
 
            injury are stipulated as $436.05, but claimant's marital 
 
            status and entitlement to exemptions is in dispute); whether 
 
            defendants are entitled to credit for payments made prior to 
 
            hearing; whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was born on June 29, 1944, being 46 years of 
 
            age at time of hearing, and attended the tenth grade.  He is 
 
            unable to read or write.  His work history includes 
 
            employment as a roofer, a carpenter, in an auto body repair 
 
            shop, in construction and in the tree removal business in 
 
            self-employment and for at least two companies, including 
 
            defendant.  Since the injury, claimant has worked as a 
 
            laborer and driver for an asphalt company primarily engaged 
 
            in parking lot construction, and with an enterprise known as 
 
            Freeman's Decorating, where claimant is currently employed 
 
            on a full-time basis with some overtime.
 
            
 
                 Claimant has been married three times.  He was briefly 
 
            married in 1961 and again in 1963.  The second marriage 
 
            lasted until dissolved in approximately 1976 to 1983 
 
            (claimant's testimony at hearing and in his deposition of 
 
            November 22, 1988 varied widely on this point).  The 
 
            marriage produced four children, none of whom claimant 
 
            supports or claims as exemptions.  The third marriage, to 
 
            Penny Hobbs, is at the root of the rate dispute.  They were 
 
            formally married in approximately May, 1987, but cohabited 
 
            prior to that.
 
            
 
                 Penny had four minor children aged 7 through 12 in 
 
            1986.  Claimant was not the natural or adoptive father of 
 
            any of these children.  However, claimant supported Penny 
 
            and the children during the times they cohabited (claimant's 
 
            brief concedes that the relationship "was a rocky one," 
 
            frequently punctuated by periods of separation).  Penny 
 
            apparently used claimant's last name before the formal 
 
            wedding, at least at times, and during some of the times 
 
            that she and claimant lived together (in claimant's words, 
 
            "as man and wife") for five years before 1987.  Penny 
 
            herself was not called to testify as to whether and when she 
 
            intended that a marital relationship existed or whether she 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was cohabiting with claimant on the injury date.  Claimant's 
 
            memory as to dates and sequences of events has been shown to 
 
            be flawed in many instances and is not reliable.
 
            
 
                 When claimant visited the Des Moines General Hospital 
 
            emergency room on September 22, 1986 (the first medical 
 
            treatment he sought post-injury), admissions records reflect 
 
            that no spouse was named and that claimant's mother was the 
 
            nearest relative.  No other emergency contact was named.  
 
            Claimant's marital status was listed as "divorced."
 
            
 
                 Generally, it cannot be said that claimant has 
 
            established as fact that he was cohabiting with Penny Hobbs 
 
            on or about September 16, 1986, continuously or otherwise, 
 
            that claimant (or Penny Hobbs) intended to be then married, 
 
            or that there was any holding out to the public in general 
 
            that any such marriage existed.  Although claimant no doubt 
 
            provided some voluntary support to Penny and her children 
 
            from time to time during the years around 1986, claimant did 
 
            not list the children as dependents for Internal Revenue 
 
            Service purposes or for payroll deductions and retained no 
 
            records of what support he has provided for the children.
 
            
 
                 The work injury occurred on September 16 or 17, 1986, 
 
            while claimant was trying to lift a heavy log (variously 
 
            described as from 75-300 pounds in claimant's deposition and 
 
            medical histories) and felt a "pop" in his back with 
 
            immediate pain.  Claimant finished the day, but on the next 
 
            day was unable to get out of bed.  When claimant presented 
 
            to Des Moines General Hospital on September 22, he had 
 
            exquisite tenderness in the paravertebral area and diffuse 
 
            paravertebral spasm and straight leg raising was markedly 
 
            restricted by back pain.
 
            
 
                 Claimant's treating physician was David McClain, D.O., 
 
            who was first seen on September 24.  Claimant at that time 
 
            continued to complain of pain in the back and legs.  His 
 
            lumbar spine revealed a positive tilt to the right and 
 
            claimant had paraspinal muscle spasms with right flexors 
 
            decreased.  Dr. McClain's impression was of acute 
 
            lumbosacral strain and claimant was advised not to work.  
 
            When claimant complained of increased pain on September 30, 
 
            he was readmitted to Des Moines General Hospital.  Dr. 
 
            McClain's final diagnosis after discharge on October 4 was 
 
            of acute lumbosacral strain.  Claimant was also followed at 
 
            this time for an unrelated cardiac problem.  He was 
 
            eventually given an unrestricted return to work by Dr. 
 
            McClain on November 20, 1986, effective November 24.  On 
 
            February 12, 1987, Dr. McClain wrote that claimant's 
 
            lumbosacral strain had been resolving in November and that 
 
            claimant was to return in six weeks for reexamination, but 
 
            apparently did not do so.  Claimant "most probably did not 
 
            sustain a permanent impairment from the September 16, 1986 
 
            trauma."
 
            
 
                 Radiographic studies at the time of claimant's 
 
            hospitalization were essentially normal.  Claimant was also 
 
            seen by neurologist Michael J. Stein, D.O., who did not find 
 
            objective signs but suspected that claimant might have a 
 
            disc syndrome because of his gait and reported pain.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was seen for consultation on October 3, 1986 
 
            by J. Doro, D.O.  Dr. Doro noted claimant's history of back 
 
            injury while lifting a heavy log and described his 
 
            impression as acute lumbosacral injury, but did not believe 
 
            claimant suffered radiculopathy.  He recommended 
 
            conservative treatment and anticipated that the condition 
 
            would slowly resolve.
 
            
 
                 Claimant was also seen by Thomas Carlstrom, M.D., in 
 
            1988.  Magnetic resonance imaging was read by Robert Mc 
 
            Cleeary, M.D., on April 27, 1988.  Dr. Mc Cleeary's 
 
            impression was of mild diffuse bulging of L4-5 without 
 
            definite displacement of the neural elements.  Dr. Carlstrom 
 
            wrote on May 5 that the small bulging disc was not 
 
            clinically significant and recommended further conservative 
 
            treatment, possibly including an exercise program and 
 
            "semi-permanent" job restrictions of unspecified type.  Dr. 
 
            Carlstrom believed that claimant had suffered a permanent 
 
            impairment caused by the work injury of about 10 percent of 
 
            the body as a whole based upon significant diminished range 
 
            of motion of the lower back.  Dr. Carlstrom further opined 
 
            that claimant probably reached maximum benefits of healing 
 
            around the summer of 1987.
 
            
 
                 Claimant began his employment with Wright Tree Service 
 
            on August 28, 1980.  The work was seasonal in nature and he 
 
            was laid off every year for the winter, generally about 
 
            Christmas time by his recollection.  Claimant was first laid 
 
            off on October 30, 1981.  In 1982, he worked from May until 
 
            July 31; in 1983, from October until November 25; in 1985, 
 
            from June until the week of December 28.  In 1986, when 
 
            claimant returned with his medical release, he was not 
 
            rehired.  He was advised by supervisor Ross Huney that there 
 
            was insufficient work available, but Huney also made a 
 
            reference to claimant's age and other crews were busy at 
 
            that time.  Huney testified by deposition on December 11, 
 
            1988.  He is now self-employed, but certainly has reason to 
 
            remember defendant fondly, since Wright Tree Service helped 
 
            set him up in business when the residential tree service 
 
            division he had supervised was shut down.  While emphasizing 
 
            that claimant was not rehired because of a lack of work, he 
 
            conceded that he did not wish to rehire claimant because of 
 
            dissatisfaction with his job performance.  Unfortunately, 
 
            defendants' attorney instructed Huney to refuse testimony on 
 
            numerous relevant issues on the spurious grounds that 
 
            discovery as to penalty benefits is improper if that issue 
 
            is tried with the other issues in the case.  She persisted 
 
            in this instruction even after claimant's attorney properly 
 
            specified the relevance of his questions on the issue of 
 
            industrial disability.  However, it seems fair to infer that 
 
            where a party has the power to produce explicit and direct 
 
            evidence and elects not to, that evidence would lay open 
 
            deficiencies in its case.  Crosser v. Iowa Dep't of Public 
 
            Safety, 240 N.W.2d 682 (Iowa 1976).  It is so inferred.  
 
            Defendants' refusal to rehire claimant when he was medically 
 
            released was in part due to his work injury and age 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            combined.
 
            
 
                 Claimant's job with defendant was the most highly paid 
 
            position he has ever held at an hourly rate of $9.69 and an 
 
            average of 45 hours per week.  Claimant next worked for 
 
            Double T Asphalt from August 12 through December 19, 1987 
 
            before being laid off, and again from March 17 through 
 
            August 19, 1988.  This position involved heavy work 
 
            shoveling asphalt and concrete and paid $7.00 per hour.  
 
            Claimant proved able to do the entire job and did not 
 
            complain of back problems, even working some overtime.  
 
            Although claimant missed a lot of work (20 days in 1987 and 
 
            19 in 1988), it was generally reported as for family 
 
            illness, not his own.  Although claimant alleges that he 
 
            eventually quit the job due to increasing back pain, Double 
 
            T Asphalt was informed that he was leaving due to a 
 
            pneumonia infection.  Claimant had not disclosed his back 
 
            injury on the job application.  In fact, it should be noted 
 
            that claimant had a long history of back injuries predating 
 
            the subject work injury, although there is no indication 
 
            that he suffered permanent impairment or that medical 
 
            restrictions had been imposed.
 
            
 
                 After quitting that job, claimant worked on odd jobs 
 
            and as a mechanic before his next regular employment.  
 
            Claimant testified that he averaged $100-$200 a week on 
 
            these odd jobs, but kept no records for tax purposes or 
 
            otherwise.  Asked about his gross earnings from this 
 
            self-employment, claimant conceded that he had kept some 
 
            records at home in a box and that he had failed to turn 
 
            these over to defendants in response to a request for 
 
            production of documents.  It seems also fair to infer that 
 
            production of these documents would have laid open 
 
            deficiencies in claimant's case, and it is therefore 
 
            concluded that his self-employment earnings were 
 
            substantially higher than claimant indicated in testimony.
 
            
 
                 Claimant was next employed by Freeman Decorating as a 
 
            laborer, commencing employment on January 24, 1989.  
 
            Although that employer considers him "part-time," he works 
 
            about 48 hours per week, earning $5.50 per hour.  Claimant 
 
            was off work from February 20 through September 11, 1989 by 
 
            reason of a broken leg sustained in that employment.  He was 
 
            returned to work without medical restrictions.  James Zaugg, 
 
            Freeman's general manager, testified that the job involves 
 
            much lifting and manual labor and that claimant has 
 
            performed the work without complaint.  Claimant was still 
 
            employed in that position as of the date of hearing, but 
 
            testified to his uncertainty as to how long the relationship 
 
            will continue, since he failed to report his real reason for 
 
            absence on the hearing date.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of his employment, but 
 
            dispute whether the injury caused temporary or permanent 
 
            disability.  The record overwhelmingly establishes that the 
 
            injury caused temporary disability.  Dr. McClain, Dr. Doro 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and Dr. Carlstrom have all opined to the existence of the 
 
            required causal nexus.  No contrary evidence appears of 
 
            record.  It is held that claimant has sustained his burden 
 
            of proof on the issue of entitlement to healing period 
 
            benefits.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and until the 
 
            employee has returned to work, it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated, or until the employee is medically capable of 
 
            returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 Dr. McClain, the treating physician, returned claimant 
 
            to work without restrictions effective November 24, 1986.  
 
            Therefore, the first of the factors set forth above ended 
 
            the healing period on November 23, 1986, when claimant was 
 
            medically capable of returning to substantially similar 
 
            employment.  As claimant first missed work on September 
 
            17th, he is entitled to healing period benefits of 9 weeks, 
 
            5 days, minus one day that he actually worked.
 
            
 
                 The parties further dispute whether the work injury 
 
            caused permanent disability.  While Dr. McClain believed it 
 
            "probable" that no permanent impairment would result, he 
 
            last saw claimant while the problem was still resolving and 
 
            his opinion is actually in the nature of a prediction.  Dr. 
 
            Carlstrom, on the other hand, objectively found significant 
 
            limitations in claimant's range of motion that he causally 
 
            related to the work injury.  There is no contrary medical 
 
            opinion of record as to claimant's status in 1988, or at any 
 
            time after Dr. McClain expected complete resolution of the 
 
            lumbosacral sprain.  It is held that claimant has 
 
            established that he suffers a permanent impairment causally 
 
            related to the work injury.  Yet, physical impairment does 
 
            not directly and unfailingly establish industrial 
 
            disability.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant has had no permanent medical restrictions 
 
            imposed because of the subject work injury.  He is capable 
 
            of performing the same work in the tree trimming business as 
 
            he could prior to his injury.  However, claimant does have a 
 
            not insubstantial physical impairment resulting from the 
 
            injury in that his range of motion has been reduced.  
 
            Further, claimant is to some degree less attractive to 
 
            potential future employers because of this history of back 
 
            injury (of course, the extent of this reduction in 
 
            attractiveness as a prospective employee has not been tested 
 
            to date, since claimant has not informed his subsequent 
 
            employers of the defect).  Also, defendants severed the 
 
            employment relationship at least in part due to the work 
 
            injury and its combined effect with claimant's age.  
 
            Claimant has suffered a reduction in his actual earnings, as 
 
            he has worked in less remunerative employment.  Claimant 
 
            continues to suffer pain, although it must be said that he 
 
            has demonstrated the ability to maintain full employment 
 
            over a substantial time in heavy manual labor, even 
 
            including substantial overtime.
 
            
 
                 Considering the record in general and these factors in 
 
            particular, it is held that claimant has established a 
 
            permanent partial disability of 15 percent of the body as a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            whole, or 75 weeks.
 
            
 
                 The commencement date of permanent partial disability 
 
            liability is November 24, 1986, or the day after claimant's 
 
            healing period ended.  A lump sum payment of permanent 
 
            partial disability benefits was made after Dr. Carlstrom's 
 
            opinion in 1988.  Claimant correctly points out that 
 
            interest accrues on permanent partial disability benefits as 
 
            they accrue from the end of the healing period.  Good or bad 
 
            faith in refusing earlier payment of permanency benefits is 
 
            irrelevant, since interest is not a penalty.  Benson v. Good 
 
            Samaritan Center, file number 765734 (App. Decn., October 
 
            18, 1989).
 
            
 
                 Claimant also alleges entitlement to penalty benefits 
 
            under Iowa Code section 86.13.  Such benefits may be 
 
            recovered if a delay in the commencement of benefits occurs 
 
            without reasonable or probable cause or excuse.  In this 
 
            case, healing period benefits were promptly paid totalling 9 
 
            weeks, 4 days.  The commencement date was September 17 and 
 
            the termination date was November 23.  It was noted that 
 
            claimant worked September 22, and the evidence in this case 
 
            establishes that claimant continued to work on September 16.  
 
            Healing period benefits are a substitute for income and 
 
            should not be considered payable on full days that claimant 
 
            actually worked.  It is held that there was no improper 
 
            delay in the payment of healing period benefits and no 
 
            entitlement to penalty benefits based thereon.
 
            
 
                 Defendants did not pay permanent partial disability 
 
            benefits until 1988.  Of course, it was only in 1988 that 
 
            there appeared any medical basis for believing claimant to 
 
            be permanently disabled.  Dr. McClain released claimant 
 
            without restrictions and in the expectation of a complete 
 
            recovery.  There was no unreasonable delay in making this 
 
            voluntary payment.  Claimant also asserts that the voluntary 
 
            payment was unreasonable in that his actual disability was 
 
            much greater than his impairment rating.  This observer 
 
            believes otherwise and notes that defendants could quite 
 
            reasonably believe claimant's industrial disability to be 
 
            minimal in that he had no medical restrictions and did 
 
            continue to work heavy manual labor for a substantial period 
 
            after he discontinued seeing Dr. McClain.  There is no 
 
            suitable basis for an award of penalty benefits.
 
            
 
                 The remaining issue is claimant's rate of compensation.  
 
            The parties agree that his average gross weekly wage 
 
            totalled $436.05.  The disagreement is to claimant's marital 
 
            status and entitlement to exemptions.  Although claimant 
 
            eventually married Penny Hobbs, the formal ceremony had not 
 
            yet been performed at the time of injury.  A common law 
 
            marriage can be established by proof of intent and the 
 
            agreement in praesenti to be married by both parties 
 
            combined with continuous cohabitation and a public 
 
            declaration that the parties are husband and wife.  In re 
 
            Marriage of Winegard, 278 N.W.2d 505 (Iowa 1978).  There is 
 
            no public policy favoring common law marriage in Iowa.  In 
 
            re Marriage of Reed, 226 N.W.2d 795 (Iowa 1975).  Where 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            cohabitation is illicit initially, affirmative proof of a 
 
            present intent to rechange the relationship to a marital one 
 
            is required.  In re Marriage of Boyington, 157 Iowa 467, 137 
 
            N.W. 949 (1912).  The burden of proof is on the party 
 
            asserting the marriage to establish its existence by a 
 
            preponderance of the evidence.  In re Marriage of Grother, 
 
            242 N.W.2d 1 (Iowa 1976).
 
            
 
                 Claimant has failed to establish the existence of a 
 
            marital relationship by a preponderance of the evidence.  
 
            When he sought hospitalization, he listed his mother as 
 
            closest relative and made no mention of Penny (Hobbs?).  He 
 
            listed his marital status as "divorced."  Although claimant 
 
            resided with Penny for some time on an intermittent basis, 
 
            he agreed that they were not married in 1984 or 1985 and 
 
            there is no showing of any subsequent present intent to 
 
            change the relationship to a marital one.  Penny herself did 
 
            not offer testimony as to her intent (or on whether 
 
            cohabitation existed at the time of the work injury, 
 
            continuous or otherwise).  While claimant may have 
 
            intermittently provided support for Penny and her children, 
 
            he had no legal obligation to do so.  His rate must be 
 
            calculated on the basis of a single individual with 
 
            entitlement to one exemption.  The Guide to Iowa Workers' 
 
            Compensation Claim Handling published by this office and 
 
            effective July 1, 1986, reflects that an individual so 
 
            situated is entitled to a weekly rate of $251.49.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant nine point five 
 
            seven one (9.571) weeks of healing period benefits at the 
 
            rate of two hundred fifty-one and 49/100 dollars ($251.49) 
 
            per week commencing September 17, 1986 and totalling two 
 
            thousand four hundred seven and 01/100 dollars ($2,407.01).
 
            
 
                 Defendants shall pay unto claimant seventy-five (75) 
 
            weeks of permanent partial disability at the rate of two 
 
            hundred fifty-one and 49/100 dollars ($251.49) per week 
 
            commencing November 24, 1986 and totalling eighteen thousand 
 
            eight hundred sixty-one and 75/100 dollars ($18,861.75).
 
            
 
                 Defendants shall have credit for all healing period 
 
            and/or permanent partial disability benefits voluntarily 
 
            paid to claimant to date.
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest thereon pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to Division of Industrial Services Rule 
 
            343-4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. W. Michael Murray
 
            Attorney at Law
 
            2323 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Iris J. Post
 
            Attorney at Law
 
            2222 Grand Avenue
 
            P.O. Box 10434
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803, 3700, 4000.2
 
                                               Filed September 4, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT HOBBS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 834874
 
            WRIGHT TREE SERVICE,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            3700, 1803
 
            Where defense attorney instructed deposition witness not to 
 
            answer questions relevant to industrial disability on the 
 
            spurious grounds that discovery could not be had on 86.13(4) 
 
            issues not bifurcated, it was inferred that production of 
 
            the evidence would "lay open deficiencies in its case."  
 
            Crosser v. Iowa Dep't of Public Safety, 240 N.W.2d 682 
 
            (Iowa 1986).
 
            
 
            4000.2
 
            Where first physician to find impairment did so two years 
 
            after the injury (treating physician predicted no 
 
            permanency), there was no unreasonable delay.  It was also 
 
            not unreasonable at that time to pay the rating, without any 
 
            industrial "multiplier."