BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        THOMAS DRAPER,
 
        
 
            Claimant,
 
                                             File Nos. 838428
 
        vs.                                            850771
 
        
 
        WILSON FOODS,
 
                                          A R B I T R A T I O N
 
            Employer,
 
            Self-Insured,                   D E C I S I O N
 
        
 
        and,
 
                                                F I L E D
 
        SECOND INJURY FUND OF IOWA,
 
                                               JUN 15 1989
 
            Defendants
 
                                      IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by the claimant, 
 
             Thomas G. Draper, against Wilson Foods, employer, self-insured, 
 
             and Second Injury Fund of Iowa, to recover benefits as a result 
 
             of an injury sustained on or about April 3, 1987. This matter 
 
             came on for hearing before the undersigned deputy industrial 
 
             commissioner in Storm Lake, Iowa, on March 24, 1989. The record 
 
             consists of the testimony of the claimant, claimant's exhibits 1 
 
             through 13, and defendants' exhibits A through G.
 
        
 
            Attorneys for all the parties were present, but the claimant 
 
        stated that Wilson Foods, the defendant employer, is no longer 
 
        involved in this matter and that the claimant is not seeking any 
 
        benefits from this defendant but is only looking to the Second 
 
        Injury Fund of Iowa. The attorney for the Second Injury Fund 
 
        agreed that that was the understanding. The attorney for Wilson 
 
        Foods, who was prepared to present a defense, withheld any 
 
        presentation of his defense, asking of questions or 
 
        cross-examination due to the claimant's and Second Injury Fund's 
 
        statement and stipulation.
 
        
 
                                      ISSUES
 
        
 
             The issues for resolution are:
 
        
 
            1. Whether claimant's injury on or about April 3, 1987 
 
        arose out of and in the course of his employment;
 
        
 
            2. Whether claimant's disability is causally connected to 
 
        his injury on or about April 3, 1987;
 
        
 
             3. The extent of claimant's permanent disability; and
 
             
 
             4. Whether claimant is precluded from trying the above 
 
             issues in an action against the Second Injury Fund when the 
 
             claimant has already in the past collected for another injury 
 
             from the Second Injury Fund.
 
        
 

 
        
 
 
 
 
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified that up to the time he began working for 
 
             defendant employer in 1977, he worked basically at manual labor 
 
             jobs. Claimant stated he graduated in the upper one-third of his 
 
             high school class in 1974. Claimant said he went one semester to 
 
             college and withdrew for lack of money, and enlisted six months 
 
             in the navy from which he received a medical discharge in 
 
             February of 1976. The medical problem was not service-connected. 
 
             Claimant stated that he had a spine fusion involving the 
 
             seventh-eighth vertebra when he was 16 years old which resulted 
 
             from an infection. Claimant indicated he played basketball in 
 
             his senior year but was the tenth player on the squad.
 
        
 
            Claimant began employment with defendant employer in June 
 
        1977 in the fresh pork production department. Claimant described 
 
        the production nature of his work, which involves hams moving on 
 
        a conveyor belt and claimant performing certain cuts: In 1985 or 
 
        1986, claimant said the pace was 600 to 700 hams per hour and one 
 
        man per ham.
 
        
 
            Claimant testified he had a left wrist carpal tunnel release 
 
        performed in 1980 and a right wrist carpal tunnel release 
 
        performed in August 1982. Claimant contended that his carpal 
 
        tunnel problems never went away and that he has lack of grip 
 
        strength, finger movement, numbness and tingling in both hands. 
 
        Claimant said it is worse now than before. Claimant emphasized 
 
        that there was no improvement since the surgery. Claimant stated 
 
        that every flexion or any pressure of the arm feels like he is 
 
        hitting his funny bone. Claimant indicated that lifting a gallon 
 
        of milk causes pressure on the nerve and tingling in the left 
 
        hand. Claimant said he has not worked since April 17, 1987, his 
 
        last day of work for defendant employer. Claimant disclosed that 
 
        he has lived with his back problem for seventeen years and that 
 
        certain jobs bother him more than others. Claimant indicated 
 
        that due to his lack of seniority, he is unable to get other jobs 
 
        in the plant other than the pace table and that the defendant 
 
        employer has no light duty jobs for him. Claimant testified that 
 
        in April 1987 he had nerve tests done and they showed nerve 
 
        damage.
 
        
 
             Claimant said he sought retraining at Northwest Iowa Tech 
 
             College in an electrical course which began in September 1988 
 
             full-time and he hopes to complete a four year course in two 
 
             years, namely, in 1990, and graduate with an associate of arts 
 
             degree applied science. Claimant indicated he presently has a 
 
             2.89 cumulative average. Claimant indicated that he is receiving 
 
             ADC, tuition help from vocational rehabilitation, a Pell grant 
 
             and a student loan.
 
        
 
             Claimant stated that in April 1987, surgery was discussed 
 
             regarding a left ulnar nerve transplant. Claimant decided no 
 
             surgery because "surgery doesn't help." Claimant contends some 
 
             doctors say it will help and others say no. Claimant contends 
 
             that he had surgery on his right arm which still bothers him. 
 
             Claimant emphasized he had no injury to the left elbow prior to 
 
             April 1987 except bumping his funny bone. Claimant testified 
 
             that he is still listed as an employee at defendant employer 
 
             which maintains his seniority, but there are no other benefits. 
 
             Claimant stated the employer has no light duty jobs now and 
 
             claimant has made no serious application for work although he 
 
             admitted he applied for jobs sufficient to be able to collect 
 
             unemployment benefits. Claimant indicated that his second injury 
 
             in December 1979 resulting in a right carpal tunnel surgery 
 
             performed in August 1982 is his first injury in the present 
 
             hearing, and the second injury for purposes of this present 
 

 
        
 
 
 
 
 
             hearing occurred on or around April 3, 1987 as a result of a 
 
             series of cumulative traumas involving his left arm. Claimant 
 
             also contends a cumulative injury to his back resulting in the 
 
             same April 3, 1987 injury date. Claimant said that if it were 
 
             not for his left ulnar nerve problem, he believed he would be 
 
             working at defendant employer today. Claimant admitted that he 
 
             had back problems since 16 years of age and would go home from 
 
             work stiff and aching.
 
        
 
            Claimant acknowledged that he presently has no specific 
 
        restrictions.
 
        
 
            The medical evidence indicates that the claimant had back 
 
        surgery in 1972 or 1973 at age 16 which was a result of an 
 
        infection and resulted in a fusion of T7-T8 vertebra. Claimant 
 
        also had a work-related left carpal tunnel surgery on July 17, 
 
        1980 and a work-related right carpal tunnel surgery on August 10, 
 
        1982. On May 1, 1985, claimant had a work-related release of 
 
        common extensor of the wrist from the right lateral condyle.
 
        
 
            In a decision dated February 28, 1984, file number 692302, 
 
        Draper v. Wilson Foods, self-insured, and Second Injury Fund of 
 
        Iowa, the deputy found that both carpal tunnel surgeries were a 
 
        result of two separate injuries. That deputy found that the 
 
        claimant had a 9 percent impairment to each hand and that the 
 
        claimant's second injury resulting in the right carpal tunnel 
 
        surgery in August of 1982 resulted in no industrial disability. 
 
        The deputy concluded that the claimant established entitlement to 
 
        permanent partial disability payments for 9 percent of his right 
 
        hand and further concluded second injury fund liability as 
 
        claimant was found to have a 7 1/2 percent industrial disability.
 
        
 
             Another decision was filed on the same date, involving the 
 
             same parties except for the second injury fund, file number 
 
             650773, Draper v. Wilson Foods, self-insured. That file was the 
 
             result of claimant's injury in May of 1980, which resulted in the 
 
             July 17, 1980 carpal tunnel release. The claimant was found to 
 
             have a 9 percent impairment to his left hand.
 
        
 
            In both of the above cases, the deputy found that claimant 
 
        had an ulnar nerve difficulty or problem, but this problem was 
 
        considered unrelated to the subject matter of that particular 
 
        litigation.
 
        
 
            In the decision file 692302, at page 6, and decision 650773, 
 
        at page 6, there is the following:
 
        
 
                  Dr. Blenderman re-evaluated claimant and in a letter 
 
                      dated June 1, 1981 lowered his disability rating. He 
 
                      commented that "[a]ny remaining disability of the upper 
 
                      extremities is as a result of the subluxation of the ulnar 
 
                      nerves at the level of the elbows, rather than as a result 
 
                      of the carpal tunnel syndrome." More specifically the 
 
                      doctor thought numbness and awakening at night would be 
 
                      attributable to the ulnar nerve.
 
             
 
             At page 7 of said decision 692302, under the Applicable Law 
 
             and Analysis, the deputy wrote:
 
        
 
                  Claimant's current complaints are in the hand and wrist. 
 
                      Claimant also has an ulnar nerve problem which is unrelated 
 
                      to the compensable median nerve difficulty which is the 
 
                      subject of this litigation. The ulnar nerve may account for 
 
                      upper extremity problems he has from time to time. Again, 
 
                      the record viewed as a whole, confines claimant's disability 
 
                      to his hand.
 

 
        
 
 
 
 
 
             
 
             At page 7 of decision 650773, the deputy repeated basically 
 
             the same words.
 
        
 
            On July 14, 1986, Richard P. Murphy, M.D., wrote among other 
 
        things in his impression:
 
        
 
            3. Extensor tendinitis, left elbow.
 
        
 
             4. Right carpal tunnel release 1983 with possible recurrent 
 
                  carpal tunnel syndrome.
 
             
 
             5. Left carpal tunnel release, left carpal tunnel syndrome 
 
             with possible recurrence.
 
             
 
        (Defendants' Exhibit D, page 70)
 
        
 
             On November 25, 1986, Oscar M. Jardon, M.D., Associate 
 
             Professor of the University of Nebraska Medical Center, saw the 
 
             claimant with epicondylitis of the left arm and recommended that 
 
             claimant continue to utilize a tennis elbow splint. This doctor 
 
             indicated that claimant could continue some work. Prior to this 
 
             date, the medical evidence indicates that claimant had problems 
 
             in his right elbow, but there was no reference to any medical 
 
             treatment in connection with the right elbow that would indicate 
 
             additional treatment or complaints concerning the left elbow. In 
 
             Claimant's personnel file, it appears that the claimant was 
 
             complaining of pain in his left elbow and/or wrist or both 
 
             beginning around May of 1986 and from that point on up until the 
 
             latter part of 1987. On May 22, 1987, Dr. Jardon noted that the 
 
             claimant was "still having subluxing of the ulnar nerve on the 
 
             left with continued ulnar nerve symptoms." (Claimant's Exhibit 
 
             5) On October 26, 1987, Dr. Jardon wrote:
 
        
 
             Mr. Draper does have about a 9 percent residual disability 
 
             at the left wrist. In addition, he has some numbness, 
 
             tingling and symptoms of subluxation of the ulnar nerve in 
 
             the left arm which would represent some partial permanent 
 
             disability due to pain discomfort and sensory deficit. This 
 
             is listed in the AMA book on Guides to Permanent Impairment 
 
             at 10 percent which would give him partial permanent 
 
             disability in the left arm of 19 percent.
 
             
 
        (Cl. Ex. 7)
 
        
 
             On January 18, 1988, Dr. Jardon reiterated the percent of 
 
             impairment that he made on October 26, 1987 and further 
 
             indicated:
 
        
 
             It is my opinion that his carpal tunnel syndrome is related 
 
             to the nature of his employment. This condition seems to be 
 
             fairly common in persons working in a meat packing plant 
 
             using their hands to grip and do repeated manipulations that 
 
             are necessary within a meat packing plant surrounding.
 
             
 
                  I don't believe that Mr. Draper is malingering, but I 
 
                      believe that he does try whenever possible to maximize his 
 
                      symptomatology. However, I have tried to take this into 
 
                      account in giving the evaluations I have given in the past.
 
             
 
        (Cl. Ex. 8)
 
        
 
             On February 13, 1989, Dr. Jardon wrote:
 
             
 
                  I do think that this repetitive hand work has irritated 
 
                      the ulnar nerve because of the subluxation problem. It is 
 

 
        
 
 
 
 
 
                      entirely possible that the subluxation is a result of 
 
                      repetitive hand work. As a matter of fact, I'm absolutely 
 
                      certain that repetitive hand work has caused symptoms as it 
 
                      relates to the ulnar nerve at the elbow in the left arm.
 
                  
 
             On June 18, 1986, Scott B. Neff, D.O., wrote:
 
        
 
                  This gentleman says that he wants time off work to allow 
 
                      his elbow to heal, and, as you know, he has had right 
 
                      lateral epicondylar release surgery, and bilateral carpal 
 
                      tunnel surgical releases performed elsewhere.
 
                  
 
                  He also says he had about a two week history of soreness 
 
                      in his left elbow, with pain in the general area of the 
 
                      lateral epicondyle.
 
                  
 
                  The pain goes up his arm also which is not in an anatomic 
 
                      distribution, and, when asked to grip firmly, the grip is 
 
                      inappropriate in strength when compared to the appearance of 
 
                      intensive activity. In other words, he is not gripping as 
 
                      hard as his facial expressions would have him appear to.
 
                  
 
        (Def. Ex. D, p. 141)
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
             
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on or about April 3, 1987 
 
             which arose out of and in the course of his employment. McDowell 
 
             v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
             
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury on or about April 3, 1987 is 
 
             causally related to the disability on which he now bases his 
 
             claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
             (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
             (1945). A possibility is insufficient; a probability is 
 
             necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
             691, 73 N.W.2d 732 (1955). The question of causal connection is 
 
             essentially within the domain of expert testimony. Bradshaw v. 
 
             Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
             
 
             However, expert medical evidence must be considered with all 
 
             other evidence introduced bearing on the causal connection. 
 
             Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
             not be couched in definite, positive or unequivocal language. 
 
             Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
             the expert opinion may be accepted or rejected, in whole or in 
 
             part, by the trier of fact. Id. at 907. Further, the weight to 
 
             be given to such an opinion is for the finder of fact, and that 
 
             may be affected by the completeness of the premise given the 
 
             expert and other surrounding circumstances. Bodish, 257 Iowa 
 
             516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 
 
             N.W.2d 128.
 
        
 
             As a claimant has an impairment to the body as a whole, an 
 
             industrial disability has been sustained. Industrial disability 
 
             was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
             593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
             that the legislature intended the term 'disability' to mean 
 
             'industrial disability' or loss of earning capacity and not a 
 
             mere 'functional disability' to be computed in the terms of 
 
             percentages of the total physical and mental ability of a normal 
 
             man."
 
        
 

 
        
 
 
 
 
 
            Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
        257 (1963).
 
        
 
            It is not necessary that claimant prove his disability 
 
        results from a sudden unexpected traumatic event. It is 
 
        sufficient to show that a disability developed gradually or 
 
        progressively from work activity over a period of time. McKeever 
 
        Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The 
 
        McKeever court also held that the date of injury in a gradual 
 
        injury case is the time when pain prevents the employee from 
 
        continuing to work. In McKeever the injury date coincides with 
 
        the time claimant was finally compelled to give up his job. This 
 
        date was then utilized in determining rate and the timeliness of 
 
        the claimant's claim under Iowa Code section 85.26 and notice 
 
        under Iowa Code section 85.23.
 
        
 
            Before the second injury fund is triggered three 
 
        requirements must be met. First the employee must have lost or 
 
        lost the use of a hand, foot, leg or eye. Second, the employee 
 
        must sustain another loss or loss of use of another member or 
 
        organ through a compensable injury. Third, permanent disability 
 
        must exist as to both the initial injury and second injury. See 
 
        Allen v. The Second Injury Fund, State of Iowa, 34 Biennial Rep., 
 
        Iowa Indus. Comm'r 15 (1980); Ross v. Service master-Story Co., 
 
        Inc., 34 Biennial Rep. Iowa Indus. Comm'r 273 (1979).
 
        
 
            The fund is responsible for the difference between total 
 
        disability and disability for which the employer at the time of 
 
        the second injury is responsible. Section 85.64. Section Injury 
 
        Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second 
 
        Injury Fund v. John Deere Component Works, Iowa Supreme court 
 
        Case No. 88-399,filed February 22, 1989.
 
        
 
             This 33-year-old claimant has had numerous injuries during 
 
             his years working at defendant employer. Claimant has had 
 
             several surgeries. Those most notable are his 1972 or 1973 
 
             nonwork-related vertebra T7-8 fusion at age 16, a work-related 
 
             left carpal tunnel surgery on July 17, 1980, a work-related right 
 
             carpal tunnel surgery on August 10, 1982, and a work-related 
 
             release of common extensor of the wrist from the right lateral 
 
             condyle operation on May 1, 1985. Claimant believes that he has 
 
             not had satisfactory results from his carpal tunnel surgeries.
 
        
 
            In February 1984, there were two decisions written by a 
 
        deputy industrial commissioner involving this claimant and 
 
        defendant employer, and one of those cases also involved the 
 
        second injury fund. The deputy found a 9 percent impairment of 
 
        both wrists. The deputy referred to an ulnar nerve problem in 
 
        both decisions and emphasized in those decisions that the ulnar 
 
        nerve was not an issue before the deputy at that time. It was 
 
        obvious that both decisions involved a carpal tunnel 
 
        cumulative-type injury. The second injury alleged in the 
 
        February 28, 1984 decision, 692302, referred to above that 
 
        resulted in a right carpal tunnel surgery will hereafter be 
 
        referred to as the first injury in this case under consideration. 
 
        This first injury occurred in December of 1979. The deputy found 
 
        that there was no industrial disability as to this first injury. 
 
        The claimant contends the second cumulative injury occurred to 
 
        his left ulnar nerve and left elbow on April 3, 1987. The 
 
        medical evidence shows that the symptoms involving the left ulnar 
 
        nerve and left elbow of claimant occurred over a period of time 
 

 
        
 
 
 
 
 
        due to the repetitive nature of claimant's work. The greater 
 
        weight of medical evidence and the history of this claimant 
 
        indicates that the claimant's present left elbow and ulnar nerve 
 
        problems are the result of a cumulative injury arising out of and 
 
        in the course of the claimant's work. The undersigned deputy so 
 
        finds. Dr. Jardon opined that repetitive hand work has caused 
 
        the symptoms as it relates to the ulnar nerve at the elbow of the 
 
        left arm. Claimant's left ulnar nerve problems are a result of a 
 
        work-related injury, but because of a cumulative nature of this 
 
        injury, it is obviously a result of claimant's repetitive work 
 
        and a causal connection is hereby found between the claimant's 
 
        current left elbow and ulnar nerve subluxation and the claimant's 
 
        work injury on or about April 3, 1987.
 
        
 
             The second injury fund contends that the ulnar nerve problem 
 
             was an old problem that was considered or disposed of in the 
 
             prior decisions of February 1984. As previously referred to, the 
 
             deputy in both of those decisions applicable hereto specifically 
 
             indicated that the ulnar nerve problems were not an issue in 
 
             those decisions. The medical evidence indicates that claimant 
 
             was having problems with the ulnar nerve at that time. The 
 
             claimant's repetitive work continued in the meat packing industry 
 
             and this repetitive action of the claimant's strenuous work lead 
 
             to claimant's present condition and resulted in him leaving work 
 
             with this defendant, the last time on April 17, 1987. The second 
 
             injury fund further contends that since the claimant has 
 
             collected second injury benefits in the past, that claimant 
 
             cannot be entitled to second injury fund benefits again 
 
             regardless of the circumstances. The second injury fund takes a 
 
             position that the issue of the nature and extent of any 
 
             entitlement of benefits from the second injury fund is precluded 
 
             from consideration because of results of the decision referred to 
 
             in February of 1984. If the second injury fund were correct in 
 
             its position, then a person who collected on two separate 
 
             injuries involving a person's two arms could not collect on two 
 
             separate injuries involving a person's legs. The undersigned 
 
             acknowledges that claimant cannot collect for the same injury 
 
             under the same fact twice. This is not the case in the present 
 
             matter. Claimant is not precluded from proceeding in this matter 
 
             by the mere fact that he has collected in the past for another 
 
             different injury from the second injury fund. Dr. Jardon had 
 
             previously opined a 9 percent residual disability to claimant's 
 
             left wrist from a prior injury and opined that claimant had some 
 
             additional numbness, tingling and symptoms of subluxation of the 
 
             ulnar nerve of the left arm which he related to the claimant's 
 
             work and indicated an additional 10 percent impairment. Dr. 
 
             Jardon had opined a 9 percent residual disability of the left 
 
             wrist (hand). When this doctor opined a 10 percent impairment to 
 
             the left arm due to the ulnar nerve injury, he added the 9 
 
             percent hand to the 10 percent arm and concluded a 19 percent 
 
             permanent impairment to the left arm. The undersigned believes 
 
             Dr. Jardon either misread or failed to convert the 9 percent 
 
             impairment of the hand to 8 percent impairment of the upper 
 
             extremity as per Table 9 in the AMA Book on Guides to Permanent 
 
             Impairment. This would result in an 18 percent permanent 
 
             impairment to the left arm rather than 19 percent. Although Dr. 
 
             Jardon then concluded that this would bring the claimant's 
 
             partial permanent disability to the left arm to about 19 percent, 
 
             it is clear that the doctor meant 19 percent permanent 
 
             impairment. Although Dr. Jardon indicated that the claimant was 
 
             not malingering, he did believe that the claimant was trying to 
 
             maximize his symptomatology but took this into consideration in 
 
             giving him the impairment evaluation. There are similar areas in 
 
             the claimant's past history in which he has obviously attempted 
 
             to maximize his symptoms. Dr. Neff, on June 18, 1986, commented 
 
             "...when asked to grip firmly, the grip is inappropriate in 
 

 
        
 
 
 
 
 
             strength when compared to the appearance of intensive activity. 
 
             In other words, he is not gripping as hard as his facial 
 
             expressions would have him appear to." (Def. Ex. D, p. 140) In 
 
             August of 1984, when claimant saw Dr. Jardon for a right shoulder 
 
             problem, Dr. Jardon noted: "He claims that this made the 
 
             shoulder worse. Normally this hardly ever happens, so I begin to 
 
             wonder the validity of the whole complaint." (Def. Ex. D, p. 
 
             105) In claimant's petition and in his testimony, he also 
 
             mentions that his back was injured on this April 3, 1987 injury 
 
             date, but there is no medical evidence of this fact. Claimant 
 
             has failed to prove any work-related back injury and any 
 
             disability resulting therefrom.
 
             
 
             Claimant is of a young age with many productive years ahead 
 
             of him. He has not worked since April 17, 1987. The defendant 
 
             employer apparently has no light duty jobs. Claimant testified 
 
             that he has made no serious applications for jobs since leaving 
 
             defendant employer except that he did apply for unemployment and 
 
             only sought jobs to comply with the unemployment benefits 
 
             requirement. Claimant has had back problems since he was 16 
 
             years old which resulted from a fusion in his back and appears 
 
             that his limitations and impairment from that surgery has been 
 
             with him to the present. Claimant acknowledged that at this time 
 
             he has no restrictions of any kind and has not taken any 
 
             medication for his left elbow since November of 1988. Prior to 
 
             that time, he was taking an anti-inflammatory medication. 
 
             Claimant testified as to his ability to grip and the alleged pain 
 
             that he endures daily and what he can't do. He indicated that he 
 
             has not given too much thought to some things that bother him as 
 
             he hasn't worked since April 1987. Claimant felt that if it 
 
             wasn't for his left ulnar nerve problem, he would still be 
 
             working at Wilson. He believed that he was able to do certain 
 
             jobs that exist at Wilson but due to his lack of seniority, he 
 
             would not be able to obtain those jobs. The undersigned believes 
 
             that the claimant has an increase in impairment as a result of 
 
             the second injury but also believes that the claimant is 
 
             over-exxagerating his present condition. Claimant also refuses to 
 
             consider surgery. There is no evidence as to the predicted 
 
             success of any surgery, but it appears claimant's attitude toward 
 
             surgery may have thwarted further consideration by his doctors.
 
                  
 
             Claimant is now going to school and appears to be doing 
 
             above average work. Claimant worked for defendant employer 
 
             twelve years and basically has been employed doing most of his 
 
             working years in the meat packing industry. It is understandable 
 
             from the multitude of injuries, cuts and bruises that the 
 
             claimant has suffered along with his other injuries resulting in 
 
             surgeries, that the claimant could lose incentive to attempt to 
 
             return to the meat packing industry notwithstanding the amount of 
 
             wages that can be earned in this occupation.
 
             
 
             The undersigned finds that the claimant has received an 
 
             additional 10 percent impairment to his left arm as a result of a 
 
             cumulative ulnar nerve injury on or around April 3, 1987. 
 
             Claimant has been substantially limited in the nature and extent 
 
             of the jobs he can perform due to his back surgery, his right and 
 
             left carpal tunnel surgeries from which he claims he has not 
 
             gotten complete satisfaction, and now his second injury involving 
 
             his ulnar nerve in the left arm. The use of claimant's hands and 
 
             arms has been essential in any work he has done to date and will 
 
             continue to be essential even with any potential job prospects 
 
             based on the education and training he is now obtaining.
 
        
 
             The claimant has a 9 percent permanent impairment to his 
 
             right hand and a 9 percent permanent impairment to the left hand 
 
             all prior to the claimant's second cumulative injury on or around 
 

 
        
 
 
 
 
 
             April 3, 1987 which resulted in an additional 10 percent 
 
             impairment to the left arm. Dr. Jardon concluded a 19 percent 
 
             impairment to the left arm. Claimant has an 18 percent permanent 
 
             impairment of the upper left extremity as a result of the 
 
             combined effects of the first injury in December 1979, resulting 
 
             in a right carpal tunnel surgery and the second injury to his 
 
             left arm on or around April 3, 1987. This equates to an 11 
 
             percent permanent partial impairment to the body as a whole. 
 
             Based on all the foregoing considerations and all the factors 
 
             considered in making a determination of industrial disability, it 
 
             is determined that the claimant has a 25 percent industrial 
 
             disability from the combined effects of both the first and second 
 
             injuries. The formula to determine the liability of the second 
 
             injury fund is as follows: (l) determine the amount of 
 
             industrial disability resulting from the combined effects of both 
 
             the first and second scheduled injuries, (2) subtract the 
 
             impairment value of the first injury, (3) subtract the impairment 
 
             value of the second injury, and (4) the resulting figure is the 
 
             liability of the Second Injury Fund of Iowa (Neelans, Fulton and 
 
             Albright as decided by the supreme court on February 22, 1989). 
 
             Applying that formula to this case, industrial disability from 
 
             the combined effect of both the first and second injury is 125 
 
             weeks (500 x .25), minus the impairment value of the first injury 
 
             to the right hand, which is 17.1 weeks (190 x .09), minus the 
 
             impairment value of the second injury to the left arm, which is 
 
             25 weeks (250 x .10), which leaves 82.9 weeks of liability of the 
 
             Second Injury Fund of Iowa. Payments are to commence May 21, 
 
             1988.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant received a work-related cumulative injury to 
 
             his left arm on or around April 3, 1987.
 
        
 
            2. Claimant's increased impairment to his left arm is a 
 
        result of his cumulative ulnar nerve injury on or around April 3, 
 
        1987.
 
        
 
            3. Claimant has not worked since his last day at defendant 
 
        employer on April 17, 1987.
 
        
 
            4. Claimant is currently seeking retraining at Northwest 
 
        Tech College in an electrical course of instructions.
 
        
 
            5. Claimant has no current medically prescribed work 
 
        restrictions placed upon him.
 
        
 
             6. Claimant sustained a 9 percent permanent impairment to 
 
             his right hand from the first injury and a 10 percent increase in 
 
             permanent impairment to his left arm as a result of his second 
 
             injury on or around April 3, 1987.
 
        
 
            7. Claimant has a prior 9 percent permanent impairment of 
 
        his left hand, which is the equivalent of an 8 percent impairment 
 
        to his left upper extremity.
 
        
 
            8. Claimant has sustained an 18 percent permanent 
 
        impairment to his upper left extremity as a result of the 
 
        combined effects of the first injury in December of 1979 
 
        resulting in a right carpal tunnel surgery and his second injury 
 
        to his left arm ulnar nerve on or around April 3, 1987.
 
        
 
            9. Claimant has sustained an 11 percent permanent 
 
        impairment to his body as a whole as a result of the combined 
 
        effects of the first and second injuries.
 
        
 

 
        
 
 
 
 
 
            10. Claimant has sustained a 25 percent reduction in 
 
        earning capacity as a result of the combined effects of the first 
 
        and second injuries.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        
 
             THEREFORE, it is concluded:
 
        
 
            Claimant's second injury on or about April 3, 1987 arose out 
 
        of and in the course of his employment.
 
        
 
            Claimant's increased disability to his left arm is causally 
 
        connected to his injury on or around April 3, 1987.
 
        
 
            The liability of the Second Injury Fund of Iowa to claimant 
 
        is 82.9 weeks of permanent partial disability commencing May 21, 
 
        1988.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That the Second Injury Fund of Iowa pay unto claimant 
 
        eighty-two point nine (82.9) weeks of permanent partial 
 
        disability benefits at the rate of two hundred thirty-one and 
 
        24/100 dollars
 
        ($231.24) commencing on May 21, 1988.
 
        
 
             That the Second Injury Fund of Iowa shall pay accrued weekly 
 
             benefits in a lump sum.
 
        
 
            That interest will not accrue pursuant to Iowa Code section 
 
        85.30.
 
             
 
             That the costs of this action are charged to the Second 
 
             Injury Fund of Iowa pursuant to Division of Industrial Services 
 
             Rule 343-4.33.
 
             
 
             That the Second Injury Fund of Iowa file claim activity 
 
             reports as required by this agency pursuant to Division of 
 
             Industrial Services Rule 343-3.1.
 
             
 
             Signed and filed this 15th day of June, 1989.
 
             
 
             
 
             
 
             
 
             
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
             
 
        Mr. Steve Hamilton
 
        Attorney at Law
 
        606 Ontario St
 
        P.O. Box 188
 
        Storm Lake, IA 50588
 
        
 
        Mr. David L. Sayre
 
        Attorney at Law
 
        223 Pine St
 
        P.O. Box 535
 
        Cherokee, IA 51012
 
             
 

 
        
 
 
 
 
 
        Ms. Joanne Moeller
 
        Assistant Attorney General
 
        Tort Claims
 
        Hoover building
 
        Des Moines, IA 50319
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                           51803; 53202
 
                                           Filed June 15, 1989
 
                                           Bernard J. O'Malley
 
                                           
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                           
 
                                           
 
        THOMAS DRAPER,
 
        
 
            Claimant,
 
                                              File Nos. 838428
 
        vs.                                            850771
 
        
 
        WILSON FOODS,
 
                                           A R B I T R A T I O N
 
            Employer,
 
            Self-Insured,                   D E C I S I O N
 
        
 
        and,
 
        
 
        SECOND INJURY FUND OF IOWA,
 
        
 
             Defendants.
 
             
 
             
 
        51803; 53202
 
        
 
             Second injury fund benefits awarded. Determined 25% 
 
             industrial disability as a result of the combined effects of 
 
             first and second injury.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LEON CHASE,                   :
 
                                          :
 
                 Claimant,                :      File No. 838429
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Leon 
 
            Chase, claimant, against Wilson Foods Corporation, employer.
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant, Susan Chase, and Michael Payne; and, joint 
 
            exhibits 1-48.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy on March 26, 1991 at Storm Lake, Iowa.
 
            
 
                                      issue
 
            
 
                 The sole issue to be determined in the case is whether 
 
            claimant has sustained an industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony, and 
 
            having reviewed all of the evidence received, finds the 
 
            following facts:
 
            
 
                 Claimant was born on September 28, 1939.  He graduated 
 
            in 1958 from Meriden High School in Meriden, Iowa.  
 
            
 
                 Upon completion of high school, he first worked in 
 
            construction, and then became employed by Modern Heating and 
 
            Cooling, a business which supplied sheet metal, mechanical 
 
            and plumbing services.
 
            
 
                 Claimant joined the Marines in approximately 1960, and 
 
            received an honorable discharge in 1966.
 
            
 
                 Claimant began to work for defendant Wilson Foods 
 
            Corporation after his discharge from the Marine Corp.  He 
 
            has held a variety of jobs at the Cherokee plant, including 
 
            positions on the beef kill line; rosetting; hide trimming; 
 
            meat presses; and, sausage packaging.  All of these jobs 
 
            required claimant to perform repetitive lifting and bending.
 
            
 
                 Claimant was injured from he was working on the sausage 
 
            packaging line.  His job duties required him to arrive 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            approximately one-half early to set up the machines by 
 
            adjusting the speed, temperature and film used on the 
 
            machine.  The film weighed approximately 96 pounds, was 20 
 
            inches to 24 inches wide, and was located on top of the 
 
            machine, at claimant's head level. (Claimant is 
 
            approximately 5' 8" tall).  There was also a roll of film on 
 
            the bottom of the machine, which weighed between 76 to 78 
 
            pounds and was 20 inches to 24 inches wide.  Each film had 
 
            to be replaced three to four times a day.  In replacing the 
 
            films on the machine, claimant had to lift the rolls of film 
 
            and place them in the machine, which required him to bend 
 
            and reach across the machine.
 
            
 
                 In November of 1986, claimant sustained an injury at 
 
            the plant.  As he was helping to set up the production line, 
 
            he moved a 600 pound hopper and in so doing hurt his low 
 
            back.  Claimant stated he felt immediate pain in his legs 
 
            and back.
 
            
 
                 Claimant reported to the company nurse, who sent him to 
 
            K. O. Garner, M.D.  Claimant received treatment from a 
 
            chiropractor on two occasions in November of 1986, and then 
 
            was referred to Walter Carlson, M.D.  (Joint Exhibit 1)
 
            
 
                 Claimant initially saw Dr. Carlson on December 2, 1986.  
 
            (Jt. Ex. 2)  Claimant was diagnosed as having a ruptured 
 
            L5-S1 disc on the left side, and presented with an absent 
 
            ankle jerk.  Dr. Carlson recommended a lumbar laminectomy 
 
            and diskectomy to relieve the problem.  (Jt. Ex. 3)
 
            
 
                 Claimant was admitted McKennan Hospital in Sioux Falls, 
 
            South Dakota on December 7, 1986.  (Jt. Ex. 5)  He underwent 
 
            the laminectomy and diskectomy to remove the herniated disc 
 
            at the L5-S1 level on the left side on December 8, 1986.  
 
            (Jt. Ex. 21)  Claimant was discharged from the hospital 
 
            three days after the operation.  (Jt. Ex. 22)
 
            
 
                 Claimant returned to Dr. Carlson on January 27, 1987.  
 
            Dr. Carlson recommended a physical therapy program.  (Jt. 
 
            Ex. 2, Page 1)
 
            
 
                 Claimant began a therapy program provided by the 
 
            company shortly after his surgery.  He was released to 
 
            return to work on March 2, 1987.  (Jt. Ex. 9)
 
            
 
                 Claimant returned to his employment with Wilson Foods, 
 
            and was placed upon the same job to which he was assigned at 
 
            the time of his injury.  Although claimant testified that 
 
            from March of 1987 to June of 1987 he performed 
 
            satisfactorily at work, his back condition gradually 
 
            worsened.  In June of 1987, claimant picked up a roll of 
 
            film to place on the machine, and was unable to complete the 
 
            work.  He reported to the nurse, and was sent to Dr. Carlson 
 
            for therapy.  Dr. Carlson diagnosed a nerve root irritation, 
 
            and took claimant off of work for one week.  He scheduled an 
 
            epidural block, bedrest and three physical therapy sessions 
 
            for one week.  (Jt. Ex. 12; Jt. Ex. 2, p. 2)  Dr. Carlson 
 
            was of the opinion that claimant would be unable to return 
 
            to heavy labor as required by Wilson Foods.  (Jt. Ex. 11)
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant underwent physical therapy from April of 1987 
 
            through September of 1987.  (Jt. Ex. 32, pp. 1-3)  These 
 
            services were provided by Dan Hasty, the company physical 
 
            therapist.  Claimant then underwent a functional assessment 
 
            from September 10, 1987 through November 6, 1987 at the 
 
            Midwest Back Center, Inc., located in Sioux Falls, South 
 
            Dakota.  (Jt. Ex. 24-31)
 
            
 
                 Final assessment of the functional evaluation was that 
 
            claimant was able to squat frequently; crouch frequently; 
 
            and, displayed a good sense of balance.  Claimant was able 
 
            to pull 86 pounds occasionally, and 106 pounds frequently; 
 
            claimant was able to push 106 pounds frequently and 
 
            continuously.  Based upon the evaluation, claimant was able 
 
            to carry 42 pounds on the right side occasionally; and, 32 
 
            pounds on the right side frequently.  He was able to carry 
 
            66 pounds on the left side occasionally and frequently.
 
            
 
                 The evaluation assessment also states that claimant can 
 
            lift occasionally and frequently 45 pounds above his 
 
            shoulders; from desk to chair, 63 pounds occasionally and 48 
 
            frequently; and, from chair to floor 65 pounds occasionally 
 
            and frequently.  (Jt. Ex. 30, pp. 1-3)  It was indicated 
 
            that if claimant were to exceed the various levels, he would 
 
            stand a 56 percent chance of reinjury, but if he worked at 
 
            or below the levels indicated, there would be a zero percent 
 
            chance of reinjury.  (Jt. Ex. 31)
 
            
 
                 In the ensuing period from claimant's injury to the 
 
            present, claimant has received various impairment ratings 
 
            and restrictions from a multitude of doctors.   
 
            Specifically, the following assessments can be found in the 
 
            record:
 
            
 
                 1.  On December 29, 1987, Dr. Carlson made the 
 
            following assessment:
 
            
 
                 Leon Chase is in today.  He is still having muscle 
 
                 spasm but has negative straight leg raising.  A 
 
                 disability evaluation was performed, and we would 
 
                 be able to give him a maximum impairment of 20% 
 
                 based on page 33C. . . . We will also set him up 
 
                 for a CT scan of his lumbar spine to see if there 
 
                 is any change in that status.
 
            
 
            (Jt. Ex. 46)
 
            
 
                 Claimant underwent the lumbar CT on January 5, 1988.  
 
            The impression of the tests was that claimant had a diffuse 
 
            disc bulge at L4-5, an increased density and loss of tissue 
 
            plane laterally at L5-1 on the left.  (Jt. Ex. 14)  Dr. 
 
            Carlson noted that the results were not unusual given 
 
            claimant's previous surgery.  (Jt. Ex. 15)
 
            
 
                 Although Dr. Carlson was under the impression that 
 
            claimant would not be able to return to work at Wilson 
 
            Foods, which was his assessment on June 12, 1987, Dr. 
 
            Carlson apparently changed his mind, and based upon the 
 
            functional capacity assessment dated November 3, 1987 (Jt. 
 
            Ex. 24-31), Dr. Carlson released claimant to return to his 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            work.  (Jt. Ex. 17; Jt. Ex. 18)
 
            
 
                 2.  Stephen Veit, M.D., made the following notations on 
 
            February 2, 1988:  Claimant was limited to lifting 10 pounds 
 
            or less above his head.  He was able to lift a maximum of 30 
 
            pounds out in front of him, and was able to bend forward 30 
 
            degrees but could not touch the floor.  Claimant complained 
 
            of chronic pain relieved by walking, worsened with coughing, 
 
            sneezing, or moving in a sudden fashion.
 
            
 
                 It was recommended that claimant secure a job with 
 
            alternate sitting and standing duties, with no standing of 
 
            more than 15 to 30 minutes at a time, and no sitting more 
 
            than 15 to 30 minutes at a time.  (Jt. Ex. 47)
 
            
 
                 3.  On April 29, 1988, Anil Agarwal, M.D. diagnosed 
 
            claimant as having a post lumbar laminectomy at the L5-S1 
 
            space; mild diffuse bulging of the L4-5 level; and, mild 
 
            lumbar spondylosis.  He was of the opinion that claimant had 
 
            a 20 percent permanent impairment of the body as a 
 
            whole.(Jt. Ex. 48)
 
            
 
                 4.  On July 5, 1988, A. J. Wolbrink, M.D., examined 
 
            claimant and obtained a history from him.  Dr. Wolbrink was 
 
            not provided any medical records, and was told that claimant 
 
            had been given permission to return to work with limitations 
 
            of no lifting of more than 10 pounds over his head, and no 
 
            standing for more than 45 minutes, and no sitting for more 
 
            than one hour.  
 
            
 
                 Based upon his examination, Dr. Wolbrink found a nerve 
 
            root irritation, and possible infection of the L5 disc 
 
            space.  Dr. Wolbrink assessed claimant of having a 19 
 
            percent permanent impairment of the body as a whole.  (Jt. 
 
            Ex. 40, pp. 1-3)
 
            
 
                 5.  On September 6, 1990, Dr. Wolbrink apportioned two 
 
            or three percent impairment of the whole person to a 
 
            preexisting condition.  (Jt. Ex. 41, pp. 1-3) 
 
            
 
                 6.  On March 1, 1991, Dr. Garner was of the opinion 
 
            that claimant would "probably never return to work."  He 
 
            holds the opinion that claimant is totally disabled.  (Jt. 
 
            Ex. 42, pp. 1-2)
 
            
 
                         analysis and conclusions of law
 
            
 
                 Claimant has sustained an injury to his low back, and 
 
            as a result is entitled to benefits based upon his loss of 
 
            earning capacity.  Therefore, the issue becomes the extent 
 
            of claimant's 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).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 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).
 
            
 
                 As noted earlier, claimant was 51 years old at the time 
 
            of the hearing, and he is a high school graduate.  
 
            
 
                 Claimant worked defendant Wilson Foods for more than 20 
 
            years, and of the 600 people employed at the plant, claimant 
 
            is number 26 in terms of seniority.  Job selection at the 
 
            plant was directed by bidding and by seniority.
 
            
 
                 Claimant's positions within the plant have involved 
 
            labor intensive type positions, and have required him to do 
 
            repetitive lifting and bending on a daily basis.
 
            
 
                 Claimant's medical condition prior to the injury 
 
            indicates he did have some prior low back difficulties, but 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            had never incurred an injury which caused him problems in 
 
            completing his job duties.  Nor has he had any permanent 
 
            impairment from prior back problems.  (Jt. Ex. 33-39; Jt. 
 
            Ex. 43, pp. 1-4)
 
            
 
                 Claimant's condition subsequent to this injury has 
 
            presented a lengthy healing period; a variety of 
 
            restrictions, and permanent impairment ratings; and, 
 
            opinions as to whether claimant can return to work, or 
 
            whether claimant is totally disabled.
 
            
 
                 His work experience is limited, and claimant has 
 
            undertaken his own vocational rehabilitation by receiving a 
 
            degree in the skill of gunsmithing.  His potential for a 
 
            living by owning a gunsmith shop are limited, but claimant 
 
            has had several successful years in providing these 
 
            services.  However, it is noted that claimant earned $8.92 
 
            per hour, 36 hours guaranteed at the plant, and has the 
 
            opportunity to earn $6.00 an hour for gunsmithing services.  
 
            Claimant earned a total of $5,000 to $5,500 in each of the 
 
            last three years in his gunsmithing business.  Claimant has 
 
            sustained an actual loss of earning of 33 percent.
 
            
 
                 Intellectually and emotionally, claimant appeared 
 
            average.  
 
            
 
                 Defendant offered testimony from Michael Payne, Wilson 
 
            Foods' personnel and labor relations manager.  He stated 
 
            that there were two possible jobs within the plant that 
 
            would accomodate claimant's work restrictions; however, 
 
            claimant would be required to bid on the jobs when, or if, 
 
            they became available.
 
            
 
                 From the evidence presented, it appears that defendant 
 
            did not actively participate in offering claimant any type 
 
            of suitable work.  Any lighter duty jobs would be available 
 
            to claimant through the bidding process, just as the same 
 
            positions would be open to all plant employees, certainly 
 
            including those with more seniority status than that of 
 
            claimant.  Defendant has made little effort to employ 
 
            claimant.
 
            
 
                 Claimant has displayed a high degree of motivation to 
 
            work, evidenced not only by his attempt to return to work 
 
            after his release in March of 1987, but also evidenced by 
 
            his pursuit of a new career of gunsmithing.
 
            
 
                 After considering all of the factors that comprise the 
 
            concept of an industrial disability, it is found that 
 
            claimant has sustained a loss of earning capacity of 55 
 
            percent.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant two hundred 
 
            seventy-five (275) weeks of benefits at the rate of two 
 
            hundred sixty and 09/100 dollars ($260.09) per week 
 
            beginning January 13, 1990.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That defendant shall pay the accrued weekly benefits in 
 
            a lump sum.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action 
 
            pursuant to Rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            Rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            PO Box 188
 
            Storm Lake Iowa 50588
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            PO Box 535
 
            Cherokee Iowa 51012
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed June 4, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LEON CHASE,    :
 
                      :
 
                 Claimant, :      File No. 838429
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant, 52 years old, sustained low back injuries which 
 
            resulted in lumbar laminectomy and diskectomy.  Claimant had 
 
            20 percent impairment rating with lifting restrictions.
 
            High school graduate, more than 23 years with defendant 
 
            employer, employer took no active role in rehabilitation, 
 
            and did not offer suitable, accessible employment.
 
            Claimant had undertaken training to open a gunsmithing 
 
            business.
 
            Claimant awarded 55 percent industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL E. McDANEL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 838457
 
         USI CHEMICAL CO.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         CIGNA PROPERTY & CASUALTY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Michael E. 
 
         McDanel, claimant, against USI Chemical Company, employer, and 
 
         its insurance carrier, Cigna Property & Casualty Company, 
 
         defendants.  The case was heard by the undersigned in Davenport, 
 
         Iowa on January 3, 1990.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of the testimony of Ronald J. Reiser.  
 
         Additionally, the record consists of joint exhibits 1-33.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on January 3, 1990, the issues presented by the parties 
 
         are:
 
         
 
              1. Whether claimant received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2. Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3. Whether claimant is entitled to permanent partial or 
 
         total disability benefits; and,
 
         
 
         
 
         
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 2
 
         
 
         
 
              4.  Whether claimant is entitled to medical benefits under 
 
         section 85.27 even though the health insurance carrier paid 80 
 
         percent.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1. The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2. The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendants are 
 
         liable for the injury, is stipulated to be paid as a wage 
 
         continuation;
 
         
 
              3. The commencement date for permanent partial disability, 
 
         in the event such benefits are awarded, is stipulated to be the 
 
         16th day of December, 1987; and,
 
         
 
              4. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $383.10 per week.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was born on March 19, 1953.  He has an associate of 
 
         arts degree in general studies.  Claimant commenced his 
 
         employment with defendant in June of 1972.  At the time of the 
 
         hearing, claimant was working as a maintenance technologist.  
 
         Claimant is right handed.
 
         
 
              Claimant testified that on November 6, 1986, he was 
 
         installing a hydraulic pump with co-employee Dale Mussman.  The 
 
         pump, according to testimony, weighed 250 pounds.  It was on a 
 
         platform approximately 12 inches above ground.  Claimant 
 
         testified the pump was near the ledge of the platform.  Claimant 
 
         related, he shoved the pump with his right shoulder.  Claimant 
 
         stated he felt a burning sensation and he grabbed his right 
 
         shoulder.  He stated he reported the incident to the safety 
 
         department on that date and, as a result, claimant was sent to 
 
         Xerxes Colah, M.D.
 
         
 
              Claimant testified he wanted an evaluation from Richard L. 
 
         Kreiter, M.D. Dr. Kreiter had treated claimant for a prior left 
 
         shoulder injury; he treated claimant with conservative 
 
         modalities.  Later Dr. Kreiter performed surgery on claimant's 
 
         right shoulder.
 
         
 
              Ronald J. Reiser testified for defendants that he was the 
 
         safety manager on November 6, 1986.  He reported he filled out
 
         
 
         
 
         
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         the necessary paperwork for claimant to see Dr. Kreiter.  The 
 
         witness testified that from December 11, 1986 to February 26, 
 
         1987, claimant was able to perform his prescribed work duties 
 
         with only minimal complaints.
 
         
 
              On the 26th of February, Mr. Reiser testified he had an 
 
         opportunity to observe claimant at the YMCA.  This witness 
 
         testified he saw claimant for 15 or 20 minutes engaging in power 
 
         volleyball, including jumping and spiking a ball.  Mr. Reiser 
 
         testified he called Dr. Kreiter relative to the playing of 
 
         volleyball.  According to this witness, he was told claimant 
 
         should not play this sport.
 
         
 
              Mr. Reiser testified claimant has not been disciplined 
 
         because of his shoulder situation, nor has claimant been 
 
         overlooked for promotions because of the shoulder injury.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 6, 1986, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847,, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm. Sch.  Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 
 
         1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
         
 
         
 
         McDANEL V. USI CHEMICAL CO.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 4
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 6, 1986, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact. Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
         
 
              An injury to a scheduled member which, because of 
 
         aftereffects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).  Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated. 
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 5
 
         
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              "Claimant is not entitled to reimbursement for medical bills 
 
         unless he shows that he paid them from his own funds." See Caylor 
 
         v. Employers Mut.  Cas. Co., 337 N.W.2d 890 (Iowa App. 1983).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has established that he sustained an injury which 
 
         arose out of and in the course of his employment.  The injury 
 
         date was November 6, 1986.  At the time of the injury, claimant 
 
         was performing services for defendant.  Claimant was where he was 
 
         supposed to be.  It would be reasonable to assume claimant could 
 
         be injured while performing services on the plant location.  
 
         Claimant's job duties gave rise to his injury.
 
         
 
              Claimant, however, has not established that his work injury 
 
         was causally related to claimant's claimed disability, including 
 
         any permanent functional impairment.
 
         
 
              At the time of claimant's work injury, Xerxes Colah, M.D., 
 
         determined:
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 6
 
         
 
         
 
              Examination of right shoulder, he has marked tenderness over 
 
              the AC joint as also the subacromial bursa.  It is 
 
              associated with a painful arc.  The various management 
 
              options were explained.  He has opted for Motrin 800 mg. 
 
              t.i.d.  Followup in 5 days at which time if he is still 
 
              symptomatic will consider injecting the area.  X-rays of the 
 
              right shoulder do not show any abnormalities.
 
         
 
              Richard L. Kreiter, M.D., opined in his letter of November 
 
         17, 1986:
 
         
 
              I do believe that he probably was pushing or pulling and 
 
              that he injured his rotator cuff or supraspinatus tendon.  I 
 
              do feel that he has good strength and probably has not 
 
              sustained a severe tear of the cuff and I do not feel that 
 
              an arthrogram is warranted at the present time.
 
              
 
              I would treat this conservatively, hoping this would go 
 
              ahead and heal uneventfully.
 
         
 
              Claimant was able to continue working subsequent to his 
 
         injury of November 6, 1986.  He did have some physical therapy 
 
         but he only saw Dr. Kreiter once in December of 1986.  Claimant 
 
         did not see Kreiter again until February 26, 1987.  That was the 
 
         day on which Ronald Reiser witnessed claimant playing power 
 
         volleyball at the YMCA.
 
         
 
              Claimant initially denied playing sports of any kind after 
 
         November 6, 1986.  He stated he was in too much pain to engage in 
 
         activities like volleyball, basketball and weight lifting.  
 
         Later, claimant testified he did not play power volleyball.  He 
 
         did state, "he hit the ball once, if at all." Claimant argued 
 
         there was a difference between playing volleyball and hitting the 
 
         ball one time.
 
         
 
              Claimant was not credible.  He denied playing volleyball.  
 
         He did tell his supervisors he did not play volleyball.  Claimant 
 
         was less than candid with his physician.  Dr. Hoffman's medical 
 
         notes did discuss volleyball playing.
 
         
 
              On the day claimant was observed playing volleyball by Mr. 
 
         Reiser, claimant also happened to visit Dr. Kreiter with 
 
         complaints that his right shoulder was becoming worse, 
 
         "especially with overhead work and pulling and pushing."  It is 
 
         curious to note, claimant did not mention playing volleyball to 
 
         Dr. Kreiter.
 
         
 
              Dr. Kreiter's notes for the succeeding day revealed, 
 
         however:
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 7
 
         
 
         
 
              2-27-87 I talked to Michael's supervisor, Ron Reiser, and he 
 
              told me that Michael has been playing power volleyball which 
 
              Michael did not tell me.
 
         
 
              The notes for J. M. Hoffman, M.D., Dr. Kreiter's partner, 
 
         state on March 2, 1987:
 
         
 
              He is continuing to have problems and is particularly 
 
              bothered by overhead activity.  He is continuing to work 
 
              although the pain is worse with overhead activity.  He 
 
              apparently has tried volleyball and has some moderate 
 
              discomfort with it, particularly with overhead activity.
 
         
 
              Dr. Hoffman's medical records were consistent with Mr. 
 
         Reiser's assertion that he had seen claimant playing volleyball.
 
         
 
              It is the determination of the undersigned that after 
 
         claimant's injury of November 6, 1986, claimant sustained a right 
 
         shoulder impingement by engaging in non-work type activities.  
 
         The non-work activities such as playing volleyball on February 
 
         26, 1987, led to claimant's right shoulder surgery.  Prior to 
 
         February 26, 1987, claimant had not sustained any temporary or 
 
         permanent disability.  Claimant was able to continue working 
 
         prior to February 26, 1987 and his x-rays revealed no 
 
         abnormalities.  Dr. Kreiter determined claimant "did seem to get 
 
         better," prior to February 26, 1987.
 
         
 
              As a result of the incident on November 6, 1986, claimant 
 
         did incur certain medical expenditures.  Eighty percent of those 
 
         charges were covered by claimant's group health insurance plan.  
 
         Twenty percent of those charges incurred prior to February 26, 
 
         1987, were reimbursable to claimant.
 
         
 
              The reimbursable medical expenses are as follows:
 
         
 
                                                      20%
 
               12-31-86    Dr. Ives  x-rays         $27.00  $5.40
 
               12-31-86    Dr. Ives office visit     27.00   5.40
 
               11-07-86    Dr. Colah  office  visit  25.00   5.00
 
               11-07-86    Dr. Colah x-rays          27.00   5.40
 
                          reimbursable to claimant         $21.20
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 8
 
         
 
         
 
              Finding 1. Claimant sustained an injury to his right 
 
         shoulder on November 6, 1986 and the injury arose out of and in 
 
         the course of his employment.
 
         
 
              Finding 2. Claimant continued to work subsequent to his 
 
         injury of November 6, 1986.
 
         
 
              Finding 3. Claimant incurred medical expenses as a result of 
 
         his injury of November 6, 1986.
 
         
 
              Conclusion A. Claimant did not sustain any temporary or 
 
         permanent disability as a result of the work injury on November 
 
         6, 1986.
 
         
 
              Finding 4. Claimant played power volleyball on February 26, 
 
         1987.
 
         
 
              Finding 5. Claimant was not credible.
 
         
 
              Finding 6. Claimant sustained a right shoulder impingement 
 
         as a result of non-work activities such as playing volleyball on 
 
         February 26, 1987 at the YMCA.
 
         
 
              Finding 7. Playing volleyball on February 26, 1987 was not 
 
         work related.
 
         
 
              Conclusion B. Claimant is entitled to reimbursable medical 
 
         expenses in the sum of $21.20.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant reimbursable 
 
         medical expenses as aforementioned in the sum of twenty-one and 
 
         20/100 dollars ($21.20).
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              Each party shall bear his/its own costs pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of the reimbursable medical expenses.
 
         
 
              Signed and filed this 28th day of February, 1990.
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         McDANEL V. USI CHEMICAL CO.
 
         Page 9
 
         
 
         
 
         Copies To:
 
         
 
         Mr. J. Drew Chambers
 
         Attorney at Law
 
         86 1/2 Main Ave
 
         P 0 Box 3055
 
         Clinton IA 52732
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 East Third St
 
         Davenport IA 52801-1550
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108. 5
 
                                         Filed February 28, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL E. McDANEL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 838457
 
         USI CHEMICAL CO.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         CIGNA PROPERTY & CASUALTY CO.,
 
         
 
              Insurance Carrier, 
 
              Defendants.
 
         
 
         
 
         
 
         1108.5
 
         
 
              Claimant sustained a work injury to his shoulder on November 
 
         6, 1986.  However, claimant was able to continue working.  On 
 
         February 26, 1987, claimant was engaged in a volleyball game 
 
         which was not work related.  After February 26, 1987, claimant 
 
         sustained a right shoulder impingement.  Held: Claimant's right 
 
         shoulder impingement was not caused by the work injury of 
 
         November 6, lS86.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         HERBERT L. BLAND,	   :
 
		                   :
 
              Claimant, 	   :
 
		                   :
 
		         vs.       :
 
                		   :      File No. 838602
 
         ATLANTIC CARRIERS,  	   :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
		                   :
 
         GREAT WEST CASUALTY,      :
 
		                   :
 
              Insurance Carrier,   :
 
              Defendants.    	   :
 
         ___________________________________________________________
 
         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 filed 
 
         March 29, 1991 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         233 Pearl St.
 
         P.O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 20, 1991
 
            BYRON K. ORTON
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            HERBERT L. BLAND,         :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
            		vs. 	      :
 
                      		      :       File No. 838602
 
            ATLANTIC CARRIERS,        :
 
		                      :         A P P E A L
 
                 Employer, 	      :
 
		                      :       D E C I S I O N
 
            		and 	      :
 
                      		      :
 
            GREAT WEST CASUALTY,      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 29, 
 
            1991.