Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID MORET,                  :
 
                                          :       File No. 845182
 
                 Claimant,                :                837989
 
                                          :
 
            vs.                           :
 
                                          :        R E V I E W -
 
            WILSON FOODS CORPORATION,     :
 
                                          :      R E O P E N I N G
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, David Moret, against his employer, Wilson Foods 
 
            Corporation, as defendant.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy on March 3, 1992, at Storm Lake, Iowa.
 
            
 
                 The record in this case consists of the live testimony 
 
            of the claimant; and, joint exhibits 1 through 40.
 
            
 
                                      issues
 
            
 
                 In accordance with the prehearing report, the parties 
 
            submit the following issues for resolution:
 
            
 
                 .  Whether claimant is entitled to additional permanent 
 
            partial disability benefits; and,
 
            
 
                 .  Whether claimant is entitled to medical benefits, 
 
            pursuant to Iowa Code section 85.39, including whether 
 
            charges for medical services rendered for claimant's 
 
            independent medical examination are fair and reasonable.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            having reviewed all the evidence received, finds the 
 
            following facts:
 
            
 
                 Claimant was born on November 1, 1951, and has worked 
 
            for Wilson Foods for approximately 22 years.
 
            
 
                 Claimant testified that in 1985 he was working on the 
 
            cut floor which required him to box ribs and pack loins.  He 
 
            stated that he used both hands in performing his job duties, 
 
            and that the job required repetitive motions using a knife 
 
            to remove various bones from the meat.  Specifically, 
 
            claimant stated that he used his right hand to cut out the 
 
            various bones, and he would use his left hand to either put 
 
            the product in the box or throw the product on the ground.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant left the cut floor in May of 1986, and began 
 
            to work in the loin room and recipe ready room.  In this 
 
            position, he was required to run a knife with his right hand 
 
            to cut around bones, and he would use his left hand to take 
 
            the bones out of the product and throw the bones on the 
 
            floor.  Again, claimant stated that this job required 
 
            repetitive use of both the right and left hand.
 
            
 
                 Claimant testified that two years prior to 1986, he 
 
            experienced various physical problems with both hands.  
 
            Specifically, claimant stated that his hands would fall 
 
            asleep and he experienced some pain while working at the 
 
            plant.  In November of 1986, claimant stated that he lost 
 
            the feeling in his right hand through his right wrist and 
 
            requested to see a physician.  The company sent claimant to 
 
            Keith O. Garner, M.D., who noted that claimant complained of 
 
            right wrist pain.  Dr. Garner recommended physical therapy, 
 
            Motrin, a wrist wrap and encouraged claimant to continue 
 
            work.  There is no notation regarding the left wrist (Joint 
 
            Exhibit 17, page 4).
 
            
 
                 Claimant eventually underwent a nerve conduction study, 
 
            the results of which showed right carpal tunnel syndrome.  
 
            Claimant underwent a carpal tunnel release for the right 
 
            wrist on November 24, 1986 (Jt. Ex. 17, p. 4; Jt. Ex. 20, p. 
 
            1).
 
            
 
                 Follow-up care ensued with Dr. Garner, and claimant 
 
            received a partial release to return to work on December 15, 
 
            1986.  During the next month, claimant continued to receive 
 
            follow-up care with Dr. Garner and John Connolly, M.D., the 
 
            physician who performed the surgery.  On January 21, 1987, 
 
            claimant was diagnosed as having carpal tunnel of the left 
 
            hand and was scheduled for surgery which was to be performed 
 
            on February 9, 1987 (Jt. Ex. 17, p. 5l; Jt. Ex. 21, p. 1).
 
            
 
                 From February through July of 1987, claimant continued 
 
            to complain of right hand weakness and numbness, and 
 
            continued to receive care from Dr. Connolly.  In August of 
 
            1987, claimant was to return to work, and in November of 
 
            1987, Dr. Connolly formed the following opinion:
 
            
 
                 He is able to grip only with a 28 pound force on 
 
                 the right and a 62 pound force on the left.  He 
 
                 has essentially still some atrophy of the thenar 
 
                 muscles of the right hand and weakness of the 
 
                 right thumb.....I think he will have a permanent 
 
                 functional impairment of 10% loss in the right 
 
                 hand and 5% in the left and overall bodily 
 
                 impairment of 10%.  We had suggested that he might 
 
                 change jobs so that he doesn't have to run a heavy 
 
                 saw and is going to try to work this out.
 
            
 
            (Jt. Ex. 30, p. 1)
 
            
 
                 On December 1, 1987, claimant entered into an agreement 
 
            for settlement with the employer based on a 10 percent 
 
            functional impairment rating to the right hand.  He was paid 
 
            workers' compensation benefits for 19 weeks at the rate of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            $227.74 per week for a total of $4,327.06 (Jt. Ex. 11, p. 
 
            1).
 
            
 
                 On December 1, 1987, claimant also entered into an 
 
            agreement for settlement with respect to the left hand, and 
 
            agreed to be paid workers' compensation benefits for 9.5 
 
            weeks at the rate of $227.74 per week for a total of 
 
            $2,163.53 (Jt. Ex. 15, p. 1).
 
            
 
                 On December 27, 1991, claimant underwent an independent 
 
            evaluation, wherein Frederick Entwistle, M.D., "would agree 
 
            with Dr. Connolly's assessment, at the present time, that 
 
            the patient has a 10% impairment rating of the right hand 
 
            and 5% impairment rating of the left hand." (Jt. Ex. 36, p. 
 
            2-3)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to additional permanent partial disability 
 
            benefits.
 
            
 
                 Claimant has previously signed two separate agreements 
 
            for settlement which compensated him for functional losses 
 
            on the two scheduled members.  The agreements indicate that 
 
            claimant sustained injuries on separate dates, November 4, 
 
            1986 and January 8, 1987.
 
            
 
                 Claimant filed two petitions in arbitration alleging 
 
            two separate injury dates, November 4, 1986 and January 8, 
 
            1987.  On both petitions, claimant also names as a defendant 
 
            the Second Injury Fund of Iowa.  The Fund settled with the 
 
            claimant prior to the beginning of the hearing.
 
            
 
                 At the hearing, claimant argued that he sustained 
 
            simultaneous injuries, and as a result, should have been 
 
            compensated under Iowa Code section 85.34(s), which 
 
            provides:
 
            
 
                 The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Defendant contends that claimant is bound by the 
 
            agreements for settlement, and that the petitions are not in 
 
            arbitration, but proceedings in review-reopenings.  
 
            Additionally, defendant argues that claimant is bound by the 
 
            two injury dates as delineated in both the settlement 
 
            agreements and the petitions.  They argue that they are 
 
            subjected to undue prejudice and surprise if claimant is 
 
            allowed to argue that he sustained simultaneous injuries.
 
            
 
                 Claimant argues that a 1985 appeal decision from the 
 
            agency allows him to argue simultaneous injuries even though 
 
            he previously settled the cases on the basis of two separate 
 
            injury dates.  In Shoemaker vs. Adams Door Company (Appeal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Decision, File No. 653861), the claimant sustained an injury 
 
            to his shoulder, although he settled the case and received 
 
            compensation for a 25 percent loss to his arm.
 
            
 
                 In holding that a claimant was not required to show 
 
            material change of circumstances since the filing of the 
 
            memorandum of agreement, the agency held:
 
            
 
                    We now hold, cause for allowance of additional 
 
                 compensation exists on proper showing that facts 
 
                 relative to an employment connected injury existed 
 
                 but were unknown and could not have been 
 
                 discovered by the exercise of a reasonable 
 
                 diligence, sometimes referred to as a substantive 
 
                 omission due to mistake, at the time of any prior 
 
                 settlement or award.
 
            
 
            158 N.W.2d 731, 735
 
            
 
                 In the instant case, it appears that claimant was not 
 
            represented by counsel when he settled the claims with the 
 
            employer (Jt. Ex. 11 and 15).  Claimant testified at the 
 
            hearing that at the time he signed the agreements, he was 
 
            not fully informed of his rights under Iowa's workers' 
 
            compensation laws.
 
            
 
                 In order to find that claimant is entitled to 
 
            compensation based on simultaneous injuries, it is necessary 
 
            that claimant prove by a preponderance of the evidence that 
 
            he sustained simultaneous injuries.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received simultaneous injuries on 
 
            November 4, 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). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Iowa Code section 85.34(2)(2) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 The medical evidence does not support claimant's 
 
            contention that he sustained simultaneous injuries.
 
            
 
                 Specifically, the initial notes dated November 5, 1986 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            from Keith Garner, M.D., indicate that claimant was 
 
            complaining of right wrist pain with no crepitation (Jt. Ex. 
 
            18, p. 1).  There is no mention of left wrist pain until 
 
            January of 1987.  At that time, claimant was undergoing 
 
            further tests of the right hand, and it appears that the 
 
            left wrist was tested so that a comparison could be made 
 
            between the two wrists.  It appears from the evidence that 
 
            claimant never did voice any complaints of pain, swelling or 
 
            problems with his left wrist, and that the tests on the left 
 
            wrist were done in a routine manner due to the condition of 
 
            claimant's right wrist.  In any event, claimant left work 
 
            due to the right wrist pain.
 
            
 
                 As a result, claimant has failed to sustain his burden 
 
            of proof that he sustained simultaneous injuries in November 
 
            of 1986.
 
            
 
                 Additionally, it should be noted that claimant filed 
 
            two separate petitions alleging two separate injury dates.  
 
            Apparently, it was not until the time of hearing that 
 
            claimant argues that he sustained simultaneous injuries and 
 
            should be compensated on the basis of 500 weeks.  To allow 
 
            claimant to amend his petitions to allege one injury date 
 
            would be prejudicial to the defendant.
 
            
 
                 As a result, claimant's petitions in arbitration are 
 
            actually review-reopening proceedings.
 
            
 
                 The case law relating to review-reopening proceedings 
 
            is rather extensive.
 
            
 
                 The opinion of the Iowa Supreme Court in Stice v. 
 
            Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 
 
            452 (1940) stated "that the modification of...[an] award 
 
            would depend upon a change in the condition of the employee 
 
            since the award was made."  The court cited the law 
 
            applicable at that time which was "if on such review the 
 
            commissioner finds the condition of the employee warrants 
 
            such action, he may end, diminish, or increase the 
 
            compensation so awarded" and stated at 1038:
 
            
 
                 That the decision on review depends upon the 
 
                 condition of the employee, which is found to exist 
 
                 subsequent to the date of the award being 
 
                 reviewed.  We can find no basis for interpreting 
 
                 this language as meaning that the commissioner is 
 
                 to re-determine the condition of the employee 
 
                 which was adjudicated by the former award.
 
            
 
                 The court in Bousfield v. Sisters of Mercy, 249 Iowa 
 
            64, 86 N.W.2d 109 (1957) cited prior decisions and added a 
 
            new facet to the review-reopening law by stating at page 69:
 
            
 
                 But it is also true that unless there is more than 
 
                 a scintilla of evidence of the increase, a mere 
 
                 difference of opinion of experts or competent 
 
                 observers as to the percentage of disability 
 
                 arising from the original injury would not be 
 
                 sufficient to justify a different determination by 
 
                 another commissioner on a petition for 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 review-reopening.  Such is not the case before us, 
 
                 for here there was substantial evidence of a 
 
                 worsening of her condition not contemplated at the 
 
                 time of the first award.
 
            
 
                 In a somewhat analogous vein, the Iowa Court of Appeals 
 
            held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 
 
            N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening 
 
            petition may allow a change in compensation when a claimant 
 
            has failed to improve to the extent initially anticipated.
 
            
 
                 A major pronouncement came in the case of Gosek v. 
 
            Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The 
 
            opinion there, at 732, stated that "[o]n a review-reopening 
 
            hearing claimant has the burden of showing by a 
 
            preponderance of the evidence his right to compensation in 
 
            addition to that accorded by a prior agreement or 
 
            adjudication."  The opinion went on to discuss the common 
 
            understanding that "if a claimant sustained compensable 
 
            injuries of which he was fully aware at time of prior 
 
            settlement or award, but for some unexplainable reason 
 
            failed to assert it, he cannot, for the first time on 
 
            subsequent review proceedings, claim additional benefits."  
 
            The opinion continued at 733 "[b]ut according to the 
 
            apparent majority view, if a claimant does not know of other 
 
            employment connected injuries or disability at time of any 
 
            prior agreement or adjudication, he is not ordinarily barred 
 
            from later asserting it as a basis for additional benefits."  
 
            The court went on to hold at 735 that "cause for allowance 
 
            of additional compensation exists on proper showing that 
 
            facts relative to an employment connected injury existed but 
 
            were unknown and could not have been discovered by the 
 
            exercise of reasonable diligence, sometimes referred to as a 
 
            substantive omission due to mistake, at time of any prior 
 
            settlement or award."
 
            
 
                 Each of these cases rest upon some disparity between 
 
            claimant's actual or anticipated physical condition at the 
 
            time of the previous assessment and the physical condition 
 
            which exists at the time of the review-reopening proceeding.  
 
            Thus, the question initially becomes has claimant 
 
            established a change in his physical condition since the 
 
            initial proceeding.
 
            
 
                 Claimant has not sought any additional medical 
 
            treatment since recuperating from the right and left carpal 
 
            tunnel release surgeries performed in late 1986 and 1987.
 
            
 
                 He did, however, undergo an evaluation performed by 
 
            Frederick Entwistle, M.D., in December of 1991.  Dr. 
 
            Entwistle's report indicates:  "I would agree with Dr. 
 
            Connolly's assessment, at the present time, that the patient 
 
            has a 10% impairment rating of the right hand and a 5% 
 
            impairment rating of the left hand." (Jt. Ex. 36, pp. 2-3)
 
            
 
                 As a result, claimant has failed to prove that he has 
 
            had a change in condition since the original awards or 
 
            agreements were made.
 
            
 
                                      order
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party shall bear their costs of pursuing 
 
            these actions.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James M Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Bldg
 
            P O Box 1828
 
            Sioux City IA 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine St
 
            P O Box 535
 
            Cherokee IA 51012
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1302
 
                                          Filed March 30, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID MORET,                  :
 
                                          :       File No. 845182
 
                 Claimant,                :                837989
 
                                          :
 
            vs.                           :
 
                                          :        R E V I E W -
 
            WILSON FOODS CORPORATION,     :
 
                                          :      R E O P E N I N G
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1302
 
            Claimant had previously settled two injuries via agreements 
 
            for settlement.
 
            At hearing, he tried to argue that he should have been 
 
            compensated for simultaneous injuries.  The medical evidence 
 
            did not support his arguments and the cases were deemed 
 
            review-reopening proceedings.
 
            Claimant failed to show a change of condition, and took 
 
            nothing from the proceedings.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT B. WIENER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 845183
 
         R & D MACHINE TOOL, INC.,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N
 
         and
 
         
 
         FEDERATED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         B.Wiener against R & D Machine Tool, Inc., his former employer 
 
         and Federated Mutual Insurance Company, the employer's insurance 
 
         carrier.  The case was heard and fully submitted at Mason City, 
 
         Iowa on May 27, 1988.  The record in the proceeding consists of 
 
         claimant's exhibits 1 through 6, defendants' exhibit A and 
 
         testimony from Dale Nelson.  The record also contains a 
 
         stipulation regarding claimant's testimony.
 
         
 
                                      ISSUES
 
         
 
              It was stipulated in the prehearing report that claimant 
 
         sustained an injury on February 3, 1987 which arose out of and in 
 
         the course of his employment with the employer and that the 
 
         injury was a cause of temporary disability during a period of 
 
         recovery to the extent that temporary total disability 
 
         compensation had been paid.  The issues in the case are whether 
 
         claimant is entitled to additional compensation for healing 
 
         period or temporary total disability.  The claimant also seeks 
 
         permanent partial disability compensation for his left eye.  The 
 
         rate of compensation was established by stipulation to be $215.30 
 
         per week.  Five weeks of healing period compensation had bee n 
 
         paid prior to hearing.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case. of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WIENER V. R & D MACHINE TOOL, INC.
 
         Page 2
 
         
 
         
 
         should be considered to be preliminary findings of fact.
 
         
 
              Claimant did not appear and testify, but it was stipulated 
 
         that the record should show that, if called, he would testify 
 
         that he got a piece of metal in his eye while working, that he 
 
         had no eye problems prior to that event and that he now wears 
 
         glasses.
 
         
 
              Dale Nelson, a co-owner of R & D Machine Tool, Inc., 
 
         testified that claimant was hired on approximately January 12, 
 
         1987, but was not proficient and that it was decided that 
 
         claimant would be terminated on the first Friday in February.  
 
         Claimant did not come to work on that Friday.  Claimant reported 
 
         that he had car trouble and made no mention of an eye injury.  On 
 
         the following Monday, claimant came to the business with a patch 
 
         on his eye and a parts receipt for his car.  Claimant also 
 
         reported an eye injury to the office secretary and stated that he 
 
         would be back to work on Wednesday, February 15.  When February 
 
         15 arrived, claimant neither came to work nor phoned in.  On that 
 
         Friday, claimant was sent a letter terminating his employment, 
 
         exhibit 6. Nelson stated that the termination date of February 5 
 
         was selected since it was the day that claimant first failed to 
 
         come to work.
 
         
 
              Claimant's exhibit 3 is a report from D. A. Fry, D.O., dated 
 
         May 26, 1987.  The report relates that claimant was treated for a 
 
         foreign body in his left eye, that a large rust ring had 
 
         developed and that 90% of the rust was removed on February 7, 
 
         1987.  Claimant's visual acuity was reportedly 20/20 on February 
 
         9, 1987 and on February 14, 1987.
 
         
 
              On February 16, 1987, claimant was seen at the Mercy 
 
         Hospital Emergency Room by Addison W. Brown, Jr., M.D., an 
 
         ophthalmologist.  Claimant's visual acuity was 20/20 in each eye.  
 
         A faint rust ring was observed.  By February 18, 1987, the visual 
 
         acuity of claimant's left eye was 20/400.  After treatment, the 
 
         visual acuity of claimant's left eye returned to 20/25 and he was 
 
         fitted with eyeglasses to correct the hyperopia which Dr. Brown 
 
         found.  In a report dated April 22, 1988, Dr. Brown stated that 
 
         the hyperopia is unrelated to the foreign body (exhibit 4).  In 
 
         an earlier report dated April 14, 1987, Dr. Brown had previously 
 
         stated that:
 
         
 
              The rust ring was very superficial and not in the visual 
 
              axis and the ' iritis has cleared completely, neither of 
 
              which should have caused a change in refractive error.  My 
 
              guess would be that he has been hyperopic on the left side, 
 
              even before this incident and that he needs to wear a +0.75 
 
              corrective lens for best acuity on the left eye.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              [H]owever, I have no prior record to confirm or suggest a 
 
              previous hyperopia OS.
 
         
 
         
 
         
 
         WIENER V. R & D MACHINE TOOL, INC.
 
         Page 3
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 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).
 
         
 
              Dr. Brown is an ophthalmologist while Dr. Fry is an 
 
         optometrist.  Accordingly, Dr. Brown has the higher degree of 
 
         professional expertise and his assessment of this case is 
 
         accepted as being correct.  Accordingly, it is determined that 
 
         the claimant has failed to prove, by a preponderance of the 
 
         evidence, that the injury of February 3, 1987 was a proximate 
 
         cause of the impaired vision in claimant's left eye.
 
         
 
              Code section 85.33 provides that compensation for temporary 
 
         total disability continues until such time as the employee either 
 
         returns to work or has recovered sufficiently to be able to 
 
         return to work substantially similar to that in which he was 
 
         engaged at the time of injury.  The record contains no expert 
 
         medical opinion specifying a recovery date.  Page 2 of exhibit 1 
 
         indicates that claimant had been given a prescription for glasses 
 
         and could work as soon as he was fitted with glasses.  That 
 
         report is dated March 27, 1987.  The second page of exhibit 4 
 
         indicates that claimant was seen on March 24, 1987 at which time 
 
         it was noted that he had no inflammation and that the iritis was 
 
         completely cured (exhibit 4, page 2).  Accordingly, March 24, 
 
         1987 is determined to be the last day of claimant's entitlement 
 
         to compensation for temporary total disability.  The stipulated 
 
         date of injury is February 3, 1987.  The last day claimant worked 
 
         was February 4, 1987.  The disability therefore commences on 
 
         February 5, 1987 and runs through March 24, 1987.  The temporary 
 
         total disability entitlement under Code section 85.33 is six and 
 
         six-sevenths weeks.  Claimant is therefore entitled to recover an 
 
         additional one and six-sevenths weeks of compensation for 
 
         temporary total disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1. The injury that Robert B. Wiener sustained on February 2, 
 
         1987 rendered him medically incapable of performing work in 
 
         employment substantially similar to that he performed at the time 
 
         of injury from February 5, 1987 through March 24, 1987.
 
         
 
              2. The injury that Robert B. Wiener sustained to his left 
 
         eye on February 3, 1987 is not shown by a preponderance
 
         
 
         
 
         
 
         WIENER V. R & D MACHINE TOOL, INC.
 
         Page 4
 
         
 
         
 
         of the evidence to have been a substantial factor in producing 
 
         any permanent hyperopia or loss of visual acuity in his left eye.
 
         
 
              3. The assessment of the case made by Dr. Brown is accepted 
 
         as being correct in spite of the fact that the earlier tests from 
 
         Dr. Fry had shown 20/20 acuity in both of claimant's eyes as 
 
         recently as February 14, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Robert B. Wiener is entitled to receive six and 
 
         six-sevenths weeks of compensation for temporary total disability 
 
         at the stipulated rate of $215.30 per week, payable commencing 
 
         February 8, 1987.
 
         
 
              3. Defendants are entitled to credit for the five weeks 
 
         previously paid leaving one and six-sevenths weeks owing to 
 
         claimant, together with interest.
 
         
 
              4. Claimant has failed to prove, by a preponderance of the 
 
         evidence, that the injury proximately caused any permanent 
 
         disability in his left eye.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one and 
 
         six-sevenths (1 6/7) weeks of compensation for temporary total 
 
         disability at the stipulated rate of two hundred fifteen and 
 
         30/100 dollars ($215.30) per week payable commencing March 15, 
 
         1987, together with interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Signed and filed this 7th day of February,1989.
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         WIENER V. R & D MACHINE TOOL, INC.
 
         Page 5
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                                                
 
 
 
 
 
 
 
 
 
 
 
                                                                
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT B. WIENER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No.  845183
 
         R & D MACHINE TOOL, INC.,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         FEDERATED INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1801, 1803
 
         
 
              Claimant was employed at a machine shop and got a piece of 
 
         metal in his eye.  He was awarded six and six-sevenths weeks of 
 
         compensation for temporary total disability,  He had sought 
 
         compensation for permanent partial disability, but the evidence 
 
         failed to show that the injury was a probable cause of hyperopia 
 
         which was found to exist in his left eye.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. EBERHARDT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 845280
 
            TAMA MEAT PACKING             :
 
            CORPORATION,                  :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MOTORIST INSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Donald E. Eberhardt against his 
 
            employer, Tama Meat Packing Corporation, and its insurance 
 
            carrier, American Motorist Insurance Company.  Mr. Eberhardt 
 
            sustained a work injury on February 2, 1987, when a wooden 
 
            splinter became lodged in and about his right thumb, later 
 
            becoming infected.  He now claims that this incident caused 
 
            disability to the right hand, wrist, forearm, elbow, upper 
 
            arm, shoulder, left arm, elbow and shoulder, neck and spine.  
 
            Defendants concede the original injury, but deny that all 
 
            these conditions are causally related.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa on 
 
            July 6, 1993.  The record consists of the testimony of 
 
            claimant, Sandra Eberhardt and Carl Wheeler, along with 
 
            joint exhibits 1-5, claimant's exhibits 20-34 and 
 
            defendants' exhibits A-F.
 
            
 
                 A few words about the submitted evidence are in order.  
 
            Much of the large pile of exhibits consists of duplicate 
 
            copies and medical records of the most marginal materiality, 
 
            if any.  Even more disconcerting, some of the copies were 
 
            apparently marked with a highlighting pen before 
 
            photocopying, resulting in dark lines running through much 
 
            of the text.  The result is that much of this evidence is 
 
            extremely difficult to read.  Even worse, some of this text 
 
            was apparently marked with a second highlighting pen, 
 
            resulting in complete obliteration of some evidence, 
 
            presumably evidence that both parties thought important.  
 
            Attorneys William Springer and Joseph Cortese are hereby put 
 
            on notice that such seriously defaced evidence may not be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            accepted by the undersigned in future contested case 
 
            litigation.  Those attorneys are further advised that the 
 
            undersigned anticipates enforcing strict compliance with 
 
            paragraph nine of the standard hearing assignment order and 
 
            Iowa Code section 17A.14(1) in future litigation.
 
            
 
                                      ISSUES
 
            
 
                 The parties have entered into the following 
 
            stipulations:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on February 
 
                    2, 1987;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  At the time of the injury, claimant was 
 
                    married, entitled to two exemptions, and had 
 
                    gross average weekly earnings of $282.80;
 
            
 
                    4.  Disputed medical treatment and the 
 
                    expenses thereof are reasonable; and,
 
            
 
                    5.  Defendant American Motorists Insurance 
 
                    Company provided workers' compensation 
 
                    coverage to Tama Meat Packing from January 
 
                    1, 1986 through December 31, 1987; 
 
                    thereafter, two other insurance carriers 
 
                    provided coverage (one of which, The 
 
                    Travelers, is currently paying benefits 
 
                    which apparently relate to some of the 
 
                    disability claimed compensable in this 
 
                    litigation).
 
            
 
                 Based on claimant's stipulated gross earnings, marital 
 
            status and number of exemptions, the parties calculated the 
 
            weekly compensation rate at $219.79.  However, reference to 
 
            the rate tables published by the commissioner in effect at 
 
            the time of injury show that an individual so situated is 
 
            entitled to a rate of $182.87, which is hereby adopted as 
 
            the proper compensation rate.
 
            
 
                 With respect to medical benefits, defendants raised the 
 
            defense of lack of authorization.  The defense was ruled 
 
            invalid at hearing because defendants have denied liability 
 
            for the various complications associated with those 
 
            expenses, thus waiving the right to control the course of 
 
            treatment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Donald Eberhardt, 55 years of age, presented at hearing 
 
            with a badly withered right hand and an inability to raise 
 
            his right arm to be sworn in.  His right upper extremity 
 
            impairment is immediately obvious.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant began working for Tama Meat Packing 
 
            Corporation in 1984.  On February 2, 1987, he was working a 
 
            night cleanup job which involved cleaning a basement area 
 
            with hoses, scoop shovels, pitchforks, and a Bobcat 
 
            front-end loader.  About eight hours into his twelve hour 
 
            shift, claimant was attempting to loosen a jam in a large 
 
            grinding machine with a pitchfork when the handle broke, 
 
            driving a wooden sliver into the web-like structure between 
 
            his right thumb and forefinger, and into the thenar eminence 
 
            (the muscular bump at the base of the thumb).  Claimant's 
 
            foreman removed part of the sliver and ordered him to return 
 
            to work.  By the end of the shift, claimant's hand had 
 
            practically doubled in size.
 
            
 
                 On the following day, claimant was seen by Pradeep 
 
            Sarswat, M.D., his regular primary physician.  Dr. Sarswat, 
 
            a board certified specialist in internal medicine, testified 
 
            by deposition on May 18, 1993.  He had been treating 
 
            claimant for Type II (adult-onset) diabetes for several 
 
            years.  He treated the wound and, because the injury was 
 
            work-related, referred claimant to the company physician, 
 
            Dr. Mallory.  Dr. Sarswat has seen claimant on many 
 
            subsequent occasions, but generally not for right upper 
 
            extremity complaints specifically.
 
            
 
                 Claimant also worked the next day, February 3.  
 
            However, due to a worsening infection in his hand, he was 
 
            off work from February 4 through February 15.  By the 16th, 
 
            swelling had noticeably decreased, so Dr. Mallory returned 
 
            claimant to work.  He did so through February 23, after 
 
            which Dr. Mallory made a referral to William W. Eversmann, 
 
            Jr., M.D.  Dr. Eversmann is identified on the letterhead of 
 
            his medical group as a hand surgeon.
 
            
 
                 Thus begins Mr. Eberhardt's long and difficult surgical 
 
            history.  
 
            
 
                 Dr. Eversmann promptly performed an incision and 
 
            drainage procedure, removing an overlooked piece of sliver 
 
            from the wound and diagnosing a subcutaneous thenar space 
 
            abscess.  
 
            
 
                 Two weeks later, on March 10, Dr. Eversmann charted 
 
            complaints of lost grip and strength in the right hand and 
 
            pain in the wrist.  His impression was of "a carpal tunnel 
 
            or an early sympathetic dystrophy complicating the abscess 
 
            of his thumb, index web space."  It is particularly noted 
 
            that Dr. Eversmann did not refer to this problem as a 
 
            complication of or secondary to the original infection, but, 
 
            on the contrary, as a separate condition complicating 
 
            recovery from the work injury.
 
            
 
                 On March 24, Dr. Eversmann performed a right-sided 
 
            carpal tunnel release.
 
            
 
                 On April 28, claimant complained of clicking and 
 
            catching in the right elbow.  Radiographic studies showed 
 
            degenerative arthritis in the elbow and, Dr. Eversmann 
 
            thought, probably some loose body formation in the elbow 
 
            joint.  Claimant was recovering slowly from the previous 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            carpal tunnel surgery and continued to have some swelling 
 
            and weakness in grip.  By May 19, claimant had improved 
 
            considerably and had full range of motion, but continued 
 
            swelling.  The ongoing physical therapy program was 
 
            increased.
 
            
 
                 Dr. Eversmann's chart notes of June 9 shows that 
 
            claimant was progressing nicely with increasing activity and 
 
            that the doctor anticipated a return to his normal work by 
 
            May 29.  However, on July 7, claimant was reported as having 
 
            returned to work doing much more than Dr. Eversmann had 
 
            anticipated and, during that time, developing pain radiating 
 
            up the forearm which appeared to be trigger thum.  This, Dr. 
 
            Eversmann released in a third surgical procedure.
 
            
 
                 Claimant, meanwhile, was off work from February 24 to 
 
            June 28 and again, from July 19 through August 8.  Except 
 
            for vacations and plant closing, he continued working 
 
            through November 9, 1990, at which time he was placed on 
 
            medical layoff.  By then, as shall be seen, Mr. Eberhardt 
 
            had developed a wide range of additional problems, many of 
 
            which he attributes to the original hand infection.
 
            
 
                 In a letter dated September 27, 1988, Dr. Eversmann 
 
            indicated that the three problems which he surgically 
 
            addressed were separate injuries, with separate injury 
 
            dates.  He considered February 2 the date of injury for the 
 
            hand infection, March 6 for the carpal tunnel syndrome 
 
            ("This would be regarded as a separate injury but of course 
 
            still related to his work place environment.") and July 7 
 
            for the right trigger thumb ("I would think the same would 
 
            apply to that injury as well").
 
            
 
                 Dr. Eversmann has indicated that claimant's substantial 
 
            later problems were related to overuse syndrome or, as he 
 
            was a known diabetic, of neuropathy problems related to that 
 
            condition.  On October 10, 1988, in a letter to another 
 
            physician, Dr. Eversmann writes that the purulent infection 
 
            between the thumb and index finger of the right hand 
 
            "resolved without difficulty" but that during the 
 
            post-operative period claimant mentioned numbness and 
 
            tingling of the fingers which eventually proved a carpal 
 
            tunnel syndrome.
 
            
 
                 Dr. Eversmann rated impairment in a letter dated 
 
            December 6, 1988.  He found a 40 percent loss of the thumb 
 
            (extrapolated to 16 percent of the hand or 14 percent of the 
 
            upper extremity) a three percent loss of the upper extremity 
 
            for lost supination (the act of turning the palm forward or 
 
            upward) wrist impairment of eight percent and loss of 
 
            strength of five percent of the upper extremity, which he 
 
            combined as a 27 percent impairment of the upper extremity, 
 
            citing the American Medical Association Guides to the 
 
            Evaluation of Permanent Impairment.  There was no increase 
 
            in impairment based on polyneuropathy, since claimant had no 
 
            sensory or motor loss.  In a letter dated May 1, 1989, Dr. 
 
            Eversmann clarified that his entire impairment rating 
 
            related to the carpal tunnel syndrome and to the limitation 
 
            of motion in the hand and thumb, not to any limitation of 
 
            the elbow.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Beginning in 1991, claimant undertook a lengthy course 
 
            of treatment at the Mayo Clinic in Rochester, Minnesota.  
 
            Mr. Eberhardt's right upper extremity symptoms had become so 
 
            extreme that Mayo surgeons performed no fewer than five more 
 
            operations, including repeat carpal tunnel and thumb 
 
            procedures.  A repeat carpal tunnel release surprisingly 
 
            discovered an anomalous or "extra" muscle in the carpal 
 
            canal, which was promptly removed.  Now, claimant's right 
 
            arm is essentially worthless and gives him constant burning 
 
            pain.  Mr. Eberhardt's condition is truly unfortunate.
 
            
 
                 In addition, claimant has a substantial medical history 
 
            of other problems, both before and after 1987.  An 
 
            evaluating physician, Dr. Paul From (a board certified 
 
            internal medicine specialist) indicated the breadth of 
 
            claimant's health problems following evaluation on October 
 
            19, 1992.  Dr. From's report itemized the following 
 
            impressions:
 
            
 
                 1.  Injury to right hand with resulting cellulitis 
 
                 and abscess, drained, and without activity at this 
 
                 time.
 
            
 
                 2.  Obesity, polyphagic; body now 67.3% fat.
 
            
 
                 3.  Diabetes mellitus, non-insulin dependent adult 
 
                 onset type; poorly controlled by glycolated 
 
                 hemoglobin results.
 
            
 
                 4.  Polyneuropathy, diabetic, first diagnosed 
 
                 1984; penile erectile dysfunction.
 
            
 
                 5.  Hypertension.
 
            
 
                 6.  Caffeine abuse.
 
            
 
                 7.  Angina pectoris; previous coronary angiography 
 
                 has been performed.
 
            
 
                 8.  Anxiety.
 
            
 
                 9.  Peptic ulcer disease by history.
 
            
 
                 10. Cephalgia, in part medication--induced.
 
            
 
                 11. Hyperlipidemia including hypercholesterolemia 
 
                 and hypertriglyceridemia.
 
            
 
                 12. Reflux esophagitis previously diagnosed.
 
            
 
                 13. Previous deep vein thrombosis (1985).
 
            
 
                 14. Restrictive pulmonary deficit.
 
            
 
                 15. Probable scars of herpes zoster.
 
            
 
                 16. X-ray suggestion of prior myelogram.
 
            
 
                 17. Previous fractures of right wrist and of right 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 navicular bones; wrist pinned.
 
            
 
                 18. Previous therapy for bursitis of right 
 
                 shoulder.
 
            
 
                 19. Motor vehicle accident in 1956, and arm 
 
                 surgery in 1956.
 
            
 
                 20. Previous adeno-tonsillectomy.
 
            
 
                 21. Past history of injury to right leg.
 
            
 
                 22. Arthritis of right knee and right elbow; 
 
                 arthroscopy of right elbow.
 
            
 
                 23. Tendonitis right wrist and surgery for 
 
                 DeQuervain's abnormality at wrist.
 
            
 
                 24. Bilateral carpal tunnel syndrome release 
 
                 surgery.
 
            
 
            (Exhibit 1).
 
            
 
                 Dr. From testified by deposition on June 2, 1993.  Dr. 
 
            Sarswatt, the physician responsible for treating claimant's 
 
            diabetes, disagrees with the conclusion that the condition 
 
            is poorly controlled.  He also questions whether claimant 
 
            suffers diabetic polyneuropathy.  With respect to caffeine 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            abuse, it is noted that Dr. From makes no distinction 
 
            between caffeinated and decaffeinated coffees, of which 
 
            claimant consumes primarily the latter.
 
            
 
                 It will be seen that claimant had serious problems with 
 
            his right upper extremity long before 1987.  And, he 
 
            underwent a left-sided carpal tunnel release one year prior 
 
            to his splinter injury, demonstrating that the presence of 
 
            carpal tunnel syndrome is not necessarily related to the 
 
            infection.
 
            
 
                 As might be expected, given the complexity of Mr. 
 
            Eberhardt's extensive problems, there is a lack of unanimity 
 
            in medical opinion as to which of claimant's numerous 
 
            ailments are causally related to employment.
 
            
 
                 In considering these opinions, it is appropriate to 
 
            briefly define what is currently at issue.  Claimant's 
 
            petition alleged a traumatic injury on February 2, 1987.  
 
            The petition does not address overuse or repetitive motion 
 
            cumulative injury, nor does it address later injuries 
 
            suffered through exposure to work.  All the various symptoms 
 
            later complained of are theoretically compensable in this 
 
            litigation if they are sequela of the original pitchfork 
 
            injury.  "Sequela" is defined in the American Heritage 
 
            Dictionary (Third Edition) as a pathological condition 
 
            resulting from a disease (or here, an injury).  If, on the 
 
            other hand, the cause of subsequent problems is more 
 
            properly attributable to later events, especially continued 
 
            work, then compensability should be addressed in other 
 
            proceedings, especially where either of two different 
 
            insurance carriers (neither named as parties here) may bear 
 
            ultimate liability.  It is noted that, since claimant was 
 
            still receiving weekly benefits (from one of those carriers) 
 
            at the time of trial, the statute of limitations has not yet 
 
            begun to run with respect to at least some conditions.  See 
 
            Iowa Code section 85.26(1).
 
            
 
                 As noted, Dr. Eversmann feels that the three conditions 
 
            which he treated surgically are separate and has assigned 
 
            separate injury dates to each.  However, because those three 
 
            conditions occurred so closely in time and act together to 
 
            produce disability, and because some medical opinion 
 
            causally relates the carpal tunnel and trigger finger 
 
            conditions to the original splinter wound, it seems fair to 
 
            find defendants are not prejudiced by a holding that all 
 
            three conditions are fairly encompassed by this litigation.  
 
            Each also occurred within the period of insurance coverage 
 
            by American Motorists (also referred to as Kemper Group).  
 
            Other conditions, including arthritis, tendonitis of the 
 
            wrist, bursitis and spinal problems are properly compensable 
 
            here only if they are more reasonably viewed as sequela of 
 
            the original puncture wound, as opposed to being causally 
 
            related to subsequent overuse.
 
            
 
                 Dr. Eversmann relates the three conditions he treated 
 
            to the original wound or to overuse.  His notation on April 
 
            28, 1987, that radiographic studies showed degenerative 
 
            arthritis in the elbow along with possible loose body 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            formation tends to indicate that it was not caused by the 
 
            original puncture wound, because the findings are so nearly 
 
            immediate in point of time.  Although none of the other 
 
            doctors are seen to have discussed this specifically, 
 
            physicians have testified before this deputy on a number of 
 
            occasions that radiographic evidence or arthritic changes is 
 
            not usually seen so soon after a traumatic event; and, it is 
 
            noted that the elbow is located at some distance from the 
 
            thumb.  Under Iowa Code section 17A.14(5), the agency's 
 
            experience, technical competence and specialized knowledge 
 
            may be utilized in the evaluation of evidence.  With respect 
 
            to other symptoms, Dr. Eversmann has pointed to continuing 
 
            overuse, degenerative arthritis, possible rotator cuff 
 
            tendonitis, impingement syndrome and diabetic neuropathy as 
 
            possibly causative.
 
            
 
                 Dr. Sarswat offered the following opinions on 
 
            causation:
 
            
 
                    Q.  Prior to February 2nd, 1987,, did you ever 
 
                 observe any arthritic condition in Mr. Eberhardt's 
 
                 right upper extremity, hands, shoulder, spine?
 
            
 
                    A.  No, not to my knowledge.
 
            
 
                    Q.  Then would it be fair to say that from your 
 
                 records that those conditions resulted after the 
 
                 date of his injury?
 
            
 
                    A.  Something made them happen, and I would 
 
                 attribute it to the injury, yes.
 
            
 
            And, as to the left upper extremity and other parts of the 
 
            body:
 
            
 
                    A. I think that's a good possibility.  Once you 
 
                 injure your right upper extremity and are not able 
 
                 to use it to the best of your capabilities and if 
 
                 you continue to work requiring or overcompensating 
 
                 the use of the left upper extremity, there is a 
 
                 good chance of developing degenerative changes in 
 
                 the compensated arm.
 
            
 
                    Q.  Would that also be what you might expect as 
 
                 far as injuries or as far as disabilities in the 
 
                 neck, back, hips, legs, and other parts of the 
 
                 body as is found in Mr. Eberhardt's condition?
 
            
 
                    A.  It's possible.
 
            
 
            And:
 
            
 
                    Q.  Okay.  Now, Doctor, do you have an opinion 
 
                 based on a reasonable degree of medical certainty 
 
                 as to whether the injury sustained by Mr. 
 
                 Eberhardt and the subsequent complications are the 
 
                 primary cause of his present disability, being to 
 
                 his right upper extremity, his left upper 
 
                 extremity, his neck, back, hips, and legs?
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                    A.  The right upper extremity for sure.  I can 
 
                 tell that with certainty.  The others are 
 
                 speculative.
 
            
 
            But:
 
            
 
                    Q.  Now this was a point in time, it's 
 
                 approximately three and a half years after the 
 
                 sliver injury of February 2nd of 1987.  Do you 
 
                 have an opinion based upon a reasonable degree of 
 
                 medical certainty as to whether once the injury 
 
                 occurs, Mr. Eberhardt has treatment, goes back to 
 
                 work, continues to work at Tama Pack, the 
 
                 continuing to work at Tama Pack is aggravating his 
 
                 right arm?  Do you have an opinion based upon a 
 
                 degree of medical certainty as to whether that 
 
                 would be the case?
 
            
 
                    A.  I would presume so, yeah.
 
            
 
            (Sarswat Deposition, Pages 19, 23, 25-26, 43-44)
 
            
 
                 From this, it seems fair to say that Dr. Sarswat 
 
            attributes claimant's right upper extremity problems to his 
 
            sliver injury (or, perhaps only the cumulative trauma carpal 
 
            tunnel and trigger thumb problems) and other symptomatology 
 
            to subsequent overcompensation and overuse.  Dr. Sarswat's 
 
            opinion as to the right upper extremity is weakened by the 
 
            fact that he was unaware as late as 1989 that claimant had 
 
            developed arthritis, whereas Dr. Eversmann, the treating 
 
            surgeon, found radiographic evidence of right elbow 
 
            arthritis only a few weeks after the initial puncture wound.
 
            
 
                 Ann H. Schutt, M.D., participated in treating claimant 
 
            at the Mayo Clinic and testified on behalf of that 
 
            institution by deposition on April 28, 1993.  Dr. Schutt is 
 
            a board certified specialist in physical medicine and 
 
            rehabilitation.
 
            
 
                 Dr. Schutt noted that claimant had degenerative 
 
            arthritis of the right elbow, cervical spine and right 
 
            wrist.  Considered together with motor and sensory loss at 
 
            the median nerve above the forearm, severe limitation of 
 
            motion over the right wrist and radicular pain in the right 
 
            arm, she rated impairment at 53 percent of the "upper 
 
            extremity" in accordance with Minnesota workers' 
 
            compensation guidelines.  Dr. Schutt also considered 
 
            claimant to be permanently disabled, but that due also to 
 
            his numerous other conditions, including obesity and a heart 
 
            defect.
 
            
 
                 At one point, Dr. Schutt testified:
 
            
 
                   The things that would be related to his injury, 
 
                 I would say, are probably his severe 
 
                 deconditioning, and not working he became obese, 
 
                 his weight handling capacities, his decreased 
 
                 strength in the right upper, and below average 
 
                 fine motor coordination, and ability to work over 
 
                 his head, and the pain in the upper -- in both 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 extremities, right greater than left.  Those I 
 
                 would say would be related to his injury.
 
            
 
            But, then stated:
 
            
 
                    A.  My opinion is that he is disabled as far as 
 
                 his right upper and right lower -- right and left 
 
                 upper extremity is related to his work.  His 
 
                 deconditioning and his other cardiac factors and 
 
                 his obesity, I cannot relate it to his work 
 
                 injury.  But I feel that I can relate the right 
 
                 upper and left upper extremity to his work 
 
                 injuries.
 
            
 
                 Dr. Schutt related claimant's degenerative arthritis to 
 
            the "work related injury of February 2, 1987."  But, she 
 
            also stated:
 
            
 
                    Q.  Dr. Schutt, are all the injuries to the 
 
                 upper extremity, both right and left, which you 
 
                 referred to consistent with a work related injury?
 
            
 
                    A.  I could say that all of the right wrist, 
 
                 hand, and probably the left wrist problems are 
 
                 related to the injuries.  The elbow problems, I 
 
                 can't exactly say for certain that it wasn't 
 
                 related to the old automobile accidents -- I mean 
 
                 old automobile accident fracture of the forearm.  
 
                 So I can't say that his elbow problems were 
 
                 absolutely related to his injury.
 
            
 
                    Q.  Would they have been aggravated by the 
 
                 injury?
 
            
 
                    A.  Yes.
 
            
 
                 Dr. Schutt further opined the infection caused by the 
 
            original work injury had an "effect on Mr. Eberhardt's 
 
            carpal tunnel."
 
            
 
                 However, on cross-examination, Dr. Schutt testified:
 
            
 
                    Q.  So if what we are talking about is an 
 
                 initial injury and then an aggravation of a 
 
                 cumulative trauma type, to the point where he 
 
                 finds himself off work in 1990, by the time you 
 
                 see him can you tell us what portion of his 
 
                 condition would result from the initial injury in 
 
                 '87 and what portion of it results from the 
 
                 cumulative trauma that occurred after he returned 
 
                 to work after the carpal tunnel surgery?
 
            
 
                    A.  I cannot.  I mean, it's a cumulative thing.  
 
                 He went back to work.  He was overworked.  he 
 
                 worked overtime, six days a week, or whatever.  
 
                 It's a cumulative trauma.  I would never send 
 
                 anybody back to work on that kind of overtime and 
 
                 work schedule after a carpal tunnel.  Ever.  And I 
 
                 think that that certainly contributed greatly to 
 
                 his problems.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
                    Q.  In light of Dr. Sarswat's note, July 24th 
 
                 being the time where Mr. Eberhardt stated that he 
 
                 was working at Tama Packing 12 hours a day, six 
 
                 some days a week, and getting along good, does 
 
                 that indicate to you that the disabling nature of 
 
                 his condition that was in place by the time you 
 
                 saw him would have manifested itself after that 
 
                 point in time?
 
            
 
                    A.  Yes.
 
            
 
            And:
 
            
 
                    Q.  Okay.  Would you agree with me that any 
 
                 pain that he had in the left arm, left hand, left 
 
                 fingers would not be the result of the injury of 
 
                 February 2nd, 1987, where he had the sliver in the 
 
                 right hand?
 
            
 
                    A.  I would disagree with you because he could 
 
                 not use his right hand.  So he has to overuse his 
 
                 left hand and overwork it.  So that that can often 
 
                 cause worsening of a carpal tunnel or carpal 
 
                 tunnel problem that he has in it, in the opposite 
 
                 extremity, because he has to overuse it.  He is 
 
                 right-handed.  He couldn't use his right hand.  So 
 
                 he overused his left hand.  And I feel that is 
 
                 related.
 
            
 
                    Q.  If in fact the medical records from the 
 
                 other providers indicate that he was doing well as 
 
                 of 1988, 1989, into that area of time, and was in 
 
                 fact working six days a week, 12 hours a day at 
 
                 Tama Meat Packing Corporation, and that he in 
 
                 fact, as we discussed earlier, suffered a 
 
                 cumulative trauma injury from going back to work 
 
                 and basically reinjuring himself by overdoing it, 
 
                 would you agree with me that the problems that he 
 
                 was having on the left side could then be a result 
 
                 of that?
 
            
 
                    A.  Might be.  I can't absolutely say that it 
 
                 wasn't.  Because if he was overworking his left 
 
                 hand still because he had pain in the right.  Even 
 
                 though he was working full time.  Overtime.  Slave 
 
                 labor.  It's too much work for anybody.
 
            
 
            (Schutt Deposition, Pages 18-19, 24, 30-31, 34-35)
 
            
 
                 As we see, there are some internal inconsistencies in 
 
            Dr. Schutt's testimony.  In general, though, it seems fair 
 
            to say that she attributes many of claimant's condition to 
 
            overuse during the several years claimant worked long and 
 
            hard hours following this injury.
 
            
 
                 Dr. From, an evaluating physician, saw claimant on one 
 
            occasion only: October 19, 1992.  He concluded:
 
            
 
                    A.  Well, I though that the area of the sliver 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 in his thenar eminence, the base of his thumb, the 
 
                 infection around his wrist and elbow and so forth, 
 
                 all would have been related to that original 
 
                 injury; but that following the surgery to his 
 
                 elbow for the last drainage of infection, that the 
 
                 problems arising from that original injury in 
 
                 February of 1987, whatever it was, were then 
 
                 healed.
 
            
 
                 Dr. From denied that a causal relationship existed 
 
            between the right trigger finger release surgery and the 
 
            original infection, but mistakenly believed that four or 
 
            five years had intervened, rather than only a few months.  
 
            Accordingly, his opinion on that issue must be discounted.  
 
            He specified that problems with the left arm were 
 
            attributable to a "later occurring cumulative trauma 
 
            injury," noting that there may be an indirect relationship 
 
            between right arm problems and overcompensation with the 
 
            left upper extremity.  He believes that claimant has 
 
            osteoarthritis, which is naturally occurring "wear and tear" 
 
            arthritis, not due directly to a traumatic incident.  Nor 
 
            did he think that arthritis throughout the body was causally 
 
            linked to the original infection.
 
            
 
                 Dr. From rated impairment at 27 percent of the right 
 
            upper extremity, to which he attributed five percent to the 
 
            puncture injury and the remainder to the "unrelated" carpal 
 
            tunnel syndrome and limitation of motion in the hand and 
 
            thumb.
 
            
 
                 On September 27, 1990, Dr. Seldon Spencer wrote that 
 
            claimant's right arm symptoms and signs appeared to arise 
 
            from musculoskeletal problems which, in his opinion, "were 
 
            initiated by the accident and subsequent infection of the 
 
            hand as well as the continuing demands on that limb arising 
 
            from the nature of his work."
 
            
 
                 Claimant was also seen for evaluation on January 15, 
 
            1991, by Gregory S. Peterson, M.D.  On March 4 of that year, 
 
            Dr. Peterson writes that claimant's evaluation was 
 
            incomplete, but that he "appears to have several causes for 
 
            his right upper extremity pain."
 
            
 
                 Based on this welter of opinion, it is found that the 
 
            February 2, 1987 injury is limited to infection in the area 
 
            of the thumb.  The chronologically-associated right carpal 
 
            tunnel and right thumb "trigger finger" releases are caused 
 
            by cumulative trauma, not infection.  However, as noted, 
 
            those problems are still appropriately addressed in this 
 
            litigation; defendants are not thereby prejudiced.  Some of 
 
            claimant's other numerous health problems, especially 
 
            including development of neurological pain in the right arm, 
 
            may be related to subsequent overuse syndromes or 
 
            impingement syndromes, but are not directly associated with 
 
            the injury under consideration.  This, of course, is not 
 
            intended to suggest any particular result with respect to 
 
            potential future litigation.
 
            
 
                         
 
            
 

 
            
 
            Page  13
 
            
 
 
 
 
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
                 
 
                 As seen above, this decision takes a liberal and 
 
            expansive view of claimant's original petition, addressing 
 
            and compensating not only residuals of the puncture injury 
 
            on February 2, 1987, but the right carpal tunnel and right 
 
            thumb releases performed soon afterwards.  The reasoning set 
 
            forth in the findings of fact is hereby adopted as a 
 
            procedural conclusion of law.
 
            
 
                 The parties have stipulated that the work injury caused 
 
            both temporary and permanent disability.  Claimant believes 
 
            he is entitled to healing period benefits through May 19, 
 
            1992, when Dr. Schutt concluded he had reached maximum 
 
            medical improvement.  Mr. Eberhardt advances this contention 
 
            even though he worked on a full-time basis for literally 
 
            years following the injury.
 
            
 
                 Under Iowa Code section 85.34(1), healing period is 
 
            compensable beginning on the date of injury and continuing 
 
            until the employee has returned to work, it is medically 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, or until the employee is medically capable 
 
            of returning to substantially similar employment, whichever 
 
            first occurs.
 
            
 
                 The record shows that claimant was off work from 
 
            February 4 through February 15, February 24 through June 28 
 
            and July 19 through August 18, 1987, with respect to the 
 
            three separate conditions compensated in this decision.  
 
            Healing period, of course, can be intermittent in nature.  
 
            Willis v. Lehigh Portland Cement Co., II-I Iowa Industrial 
 
            Commissioner Decisions, 485 (1984).  Claimant returned to 
 
            work on September 19, and missed no additional time due to 
 
            these injuries.  Accordingly, it is held that he is entitled 
 
            to intermittent healing period benefits as set forth above, 
 
            totaling 23 weeks.
 
            
 
                 Both Dr. Eversmann, the treating surgeon, and Dr. From, 
 
            one of several highly qualified specialists, have rated 
 
            impairment due to the three subject conditions at 27 percent 
 
            of the "upper extremity."  Actually, all of the disability 
 
            compensated here is limited to the hand.  Carpal tunnel 
 
            surgery is performed in the wrist, but the wrist is part of 
 
            the hand.  Elam v. Midland Mfg., II Iowa Industrial Comm'r 
 
            Report 141 (1981).  Under table two of the AMA Guides to the 
 
            Evaluation of Permanent Impairment (4th Edition, 1993), a 27 
 
            percent impairment of the upper extremity is equivalent to a 
 
            30 percent impairment of the hand.  Under Iowa Code section 
 
            85.34(2)(l), loss of a hand is compensated during 190 weeks.  
 
            Thirty percent is 57 weeks.  Accordingly, claimant shall be 
 
            awarded 57 weeks of permanent partial disability commencing 
 
            August 9, 1987.
 
            
 
                 The medical benefits sought by claimant were accrued in 
 
            1988 and thereafter.  Claimant has not established a causal 
 
            nexus between those expenses and the three conditions 
 
            compensated here, although, once again, this decision does 
 
            not address whether those expenses are properly compensable 
 
            under any other claimed injury involving this employer and 
 
            one or more insurance carriers not parties to this 
 
            litigation.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
                 Claimant's entitlement to healing period and permanent 
 
            partial disability benefits totals 110 weeks.  At the 
 
            compensation rate found here of $182.87, claimant's 
 
            entitlement is $20,115.70.  The parties have stipulated that 
 
            defendants paid 76.285 weeks of compensation at the rate of 
 
            $219.79, or $16,766.68.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant twenty-three (23) weeks 
 
            of intermittent healing period benefits at the rate of one 
 
            hundred eighty-two and 87/100 dollars ($182.87), as set 
 
            forth above.
 
            
 
                 Defendants shall pay fifty-seven (57) weeks of 
 
            permanent partial disability benefits commencing August 9, 
 
            1987.
 
            
 
                 Defendants shall have credit for all benefits paid 
 
            prior to hearing.
 
            
 
                 All accrued benefits shall be paid in alump sum 
 
            together with statutory interest.
 
            
 
                 Costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William L Springer
 
            Attorney at Law
 
            Lin-Mar Building
 
            204-208 E Linn Street
 
            Marshalltown Iowa 50158
 
            
 
            Mr Joseph S Cortese II
 
            Attorney at Law
 
            500 Liberty Building
 
            418 6th Avenue
 
            Des Moines Iowa 50309-2421
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed January 31, 1994
 
                                            DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. EBERHARDT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 845280
 
            TAMA MEAT PACKING             :
 
            CORPORATION,                  :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MOTORIST INSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Scheduled member disability was awarded.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD E. EBERHARDT,          :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 845280
 
            vs.                           :
 
                                          :          O R D E R
 
            TAMA MEAT PACKING             :
 
            CORPORATION,                  :           N U N C 
 
                                                       P R O 
 
                                          :           T U N C
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MOTORIST INSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The undersigned filed an arbitration decision on January 31, 
 
            1994.  Defendants have filed an unresisted motion for order 
 
            nunc pro tunc, seeking two changes.
 
            At hearing, the parties stipulated to certain foundational 
 
            facts necessary to calculate the proper rate of weekly 
 
            compensation.  Claimant's gross weekly earnings were 
 
            stipulated to be $282.80, marital status was married and 
 
            claimant was entitled to two exemptions.  Based on those 
 
            foundational facts, the parties calculated the compensation 
 
            rate to be $219.79.  However, the rate tables published by 
 
            the commissioner show that an individual so situated is 
 
            entitled to a rate of $182.87.  Defendants set forth that a 
 
            typographical error was made in the hearing report, and that 
 
            gross weekly earnings should have been at $348.00 per week.  
 
            Since this allegation is against the pecuniary interest of 
 
            defendants and unresisted, the allegation is accepted.  The 
 
            rate tables show that the proper weekly rate based on those 
 
            weekly earnings and the same marital status and exemptions 
 
            is $219.74.  Defendants are to be commended for their 
 
            honesty.
 
            Defendants also point out an inconsistency in the 
 
            arbitration decision as to the extent of healing period and 
 
            permanent disability benefits awarded.  On page 13, the 
 
            decision sets forth three separate periods of intermittent 
 
            healing period benefits (February 4 through February 15, 
 
            February 24 through June 28, and July 19 through August 18, 
 
            1987) and calculates the total at 23 weeks.  After awarding 
 
            57 weeks of scheduled member impairment, the decision 
 
            incorrectly totaled the entire compensation at 110 weeks.  
 
            However, a review of the arbitration decision discloses that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            this is not the only embarrassing arithmetical error.  
 
            Actually, the three periods of intermittent healing period 
 
            benefits total 24 weeks, not 23 weeks.  Accordingly, 
 
            claimant's entitlement to healing period and permanent 
 
            partial disability benefits totals 81 weeks, not 110 weeks.
 
            THEREFORE, IT IS ORDERED:
 
            The arbitration decision filed January 31, 1994 is amended 
 
            to award claimant twenty-four (24) weeks of intermittent 
 
            healing period benefits, not twenty-three (23) weeks (total 
 
            healing period and permanent partial benefits total 81 
 
            weeks);
 
            All benefits shall be paid at the compensation rate of two 
 
            hundred nineteen and 74/100 dollars ($219.74) rather than 
 
            one hundred eighty-two and 87/100 dollars ($182.87).
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                    DAVID R. RASEY
 
                                    DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William L Springer
 
            Attorney at Law
 
            Linn-Mar Building
 
            204-208 E Linn Street
 
            Marshalltown Iowa 50158
 
            
 
            Mr Joseph S Cortese II
 
            Attorney at Law
 
            500 Liberty Building
 
            418 6th Avenue
 
            Des Moines Iowa 50309-2421
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDSUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                   
 
         CHARLES W. SCHERTZ, 
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                File No. 845391
 
         J & J STEEL, INC.,  
 
                                                  A P P E A L
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         LIBERTY MUTUAL INSURANCE 
 
         COMPANY,  
 
                   
 
              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 
 
         September 5, 1990 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of June, 1992.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. W. McGrath
 
         Attorney at Law
 
         P.O. Box 453
 
         Keosauqua, Iowa 52565-0453
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         P.O. Box 716
 
         Ottumwa, Iowa 52501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed June 30, 1992
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            CHARLES W. SCHERTZ, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 845391
 
            J & J STEEL, INC.,  
 
                                                  A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            5, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES W. SCHERTZ,           :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 845391
 
            vs.                           :
 
                                          :
 
            J & J STEEL, INC.,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for additional permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring February 3, 1987.  There was no oral testimony at 
 
            this hearing.  The record consists solely of joint exhibits 
 
            1 through 14, which included the July 16, 1990 deposition of 
 
            claimant, a deposition of Peter D. Wirtz, M.D., and Marc E. 
 
            Hines, M.D.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent partial 
 
            disability over and above the 22 weeks defendants have 
 
            already paid, which defendants paid based on their 
 
            contention claimant has a scheduled injury;
 
            
 
                 2.  Whether there is any causal connection to any 
 
            increase in permanent partial disability benefits over and 
 
            above the 22 weeks defendants have already paid and to which 
 
            22 weeks the defendants stipulated there was a causal 
 
            connection; and,
 
            
 
                 3.  Whether claimant is an odd-lot candidate.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant was present but did not orally testify at his 
 
            hearing.  Claimant testified through a July 16, 1990 
 
            deposition.  Claimant is 55 years old and is a high school 
 
            graduate.  Claimant obtained a certificate indicating he 
 
            completed a basic adult welding course in 1965 at Indian 
 
            Hills Community College.
 
            
 
                 Claimant related his work history which involved 
 
            farming, working for a gas company, service in the United 
 
            States Marines as a demolition worker and combat engineer, 
 
            construction work as a laborer, material handler, placer, 
 
            truck driver, and off and on over the last approximate 16 
 
            years before his February 3, 1987 injury worked as a welder 
 
            and ironworker for various companies in a three-state area 
 
            working out of the union hall.  Claimant also obtained an 
 
            over-the-road long-haul semi truck driving certificate in 
 
            1988.  As of claimant's February 3, 1987 fall, he was 
 
            considered a journeyman ironworker.  Claimant has worked for 
 
            defendant employer off and on since 1971.  Claimant 
 
            described the nature of an ironworker's job.
 
            
 
                 Claimant related his past accidents and injuries.  He 
 
            described his fall in 1978 while working for defendant 
 
            employer which resulted in claimant breaking an L-1 
 
            vertebra.  He received workers' compensation for this, and 
 
            the record indicates he received a 10 percent permanent 
 
            partial disability for that work-related accident.  Claimant 
 
            indicated there might be some residue from that injury but 
 
            it was hard to tell.  He emphasized construction workers 
 
            always have pains from their work.  The record is clear that 
 
            claimant was not suffering from any results of a prior 
 
            injury as of February 3, 1987 and was performing without any 
 
            apparent problems in his work as an ironworker.  There is no 
 
            evidence that there were any restrictions or any effects of 
 
            a prior impairment in connection with claimant's ability to 
 
            work until his work injury of February 3, 1987.
 
            
 
                 Claimant is not currently working and is receiving a 
 
            $272 per month ironworker pension since January 1990 and 
 
            $636 per month in social security benefits since August of 
 
            1989.
 
            
 
                 Claimant fell on February 3, 1987 while on a 
 
            construction project for defendant employer.  Claimant was 
 
            standing on a beam while putting on a roof and fell 20 feet 
 
            backwards on his rear, breaking his hip and pelvic in two 
 
            places and receiving other bruises, wounds and jolts to his 
 
            back and body, generally.  Claimant has pain in his right 
 
            hip, tailbone, low back area and up down the back of his 
 
            right leg.  Claimant indicated his ulcers have developed 
 
            since his fall and the record is clear that although 
 
            claimant may have had episodes of stomach or ulcer problems 
 
            in the past, he was not having any appreciable problems or 
 
            treatment for them until after his fall.  The record shows 
 
            that claimant took several types of medicine after his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            injury, some of which are known to have an effect on people 
 
            resulting in ulcer problems, stomach problems or other side 
 
            effects.
 
            
 
                 Claimant went to vocational rehabilitation.   Upon 
 
            graduating from a truck driving school in August 1988, he 
 
            went out on the road and worked for CRST Trucking during a 
 
            five week period as a semi driver until September 16, 1988, 
 
            when he had to leave this job after the company further 
 
            reviewed his medical record.  Claimant said that he had gone 
 
            through three or four training programs but that he could 
 
            not get a job anywhere through these programs.
 
            
 
                 Claimant then worked from November 30, 1988 to May 5, 
 
            1989 at the Ottumwa Community Schools but had to leave this 
 
            job because the work involved too much twisting, turning and 
 
            bending.  It appears claimant's last job was in April or May 
 
            1989 doing light farm work, but it became too hard for 
 
            claimant to do and he had to quit.  Claimant indicated he 
 
            has 70 or 80 resumes around the country and can't get a job.  
 
            Claimant relates his inability to obtain work to his medical 
 
            condition as a result of his February 3, 1987 fall.  
 
            Claimant then sought disability benefits because of his 
 
            status and this eventually resulted in him receiving the 
 
            disability pension from the union and social security 
 
            disability benefits.
 
            
 
                 M. W. Crane, M.D., performed right hip surgery which 
 
            involved an open reduction internal fixation right hip - 
 
            femoral neck on February 4, 1987.  Claimant had basically a 
 
            pelvic fracture, also.
 
            
 
                 Marc E. Hines, M.D., testified through his deposition 
 
            of June 29, 1990.  Dr. Hines first saw claimant on January 
 
            19, 1989 after having been referred to him by the vocational 
 
            rehabilitation to rule out a seizure disorder.  Dr. Hines' 
 
            associate, a Dr. Sires, had seen claimant on May 12, 1988.  
 
            The doctor described claimant's limitation.  The doctor saw 
 
            claimant again in March 1989, October 1989 and June 26, 
 
            1990.  It seems undisputed that claimant has currently an 
 
            arthritic condition and some degeneration of the spine.  
 
            Defendants contend that this was from either a preexisting 
 
            injury or condition and that claimant's current arthritis 
 
            and degeneration in his vertebra is the result of his aging 
 
            process and would have occurred regardless of the injury.  
 
            Dr. Hines addressed this issue through various questions 
 
            asked of him in his deposition.  Dr. Hines said:
 
            
 
                 ...that the final common pathway for pain 
 
                 production in the back is often arthritis, but it 
 
                 has a number of different manifestations.  In 
 
                 other words, the arthritis can pinch the nerves 
 
                 and the nerves become irritated and then they 
 
                 cause pain.  The arthritis is both a spontaneously 
 
                 occurring problem but also something that's due 
 
                 sometimes to trauma.  So as long as you understand 
 
                 that there may be a number of mechanisms whereby 
 
                 arthritis can cause pain and a number of 
 
                 mechanisms where arthritis itself can be 
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 caused....
 
            
 
                    ....
 
            
 
                 ...[I]t's evident from the records that he 
 
                 probably did have some arthritis before the fall, 
 
                 but that he also had very significant injury with 
 
                 the fall.  There is even some question about the 
 
                 L-1 fracture as to whether it was old or not.  But 
 
                 putting that aside, here's a gentleman who had a 
 
                 clear cut femoral neck fracture, shortening of the 
 
                 femoral bone, which will cause one leg to be 
 
                 shorter than another.  Additionally, he had pelvic 
 
                 fractures and who has ever since the fall and 
 
                 because of the fall and around the time of the 
 
                 fall had pain in his hips and his back and his 
 
                 leg, pain that radiates down into his legs.  
 
                 Around that time, ever since that time he has 
 
                 continued to have pain of a similar character, 
 
                 although he clearly has had some improvement in 
 
                 terms of the fractures healing....The right leg is 
 
                 shorter and the areas of fractures often   hurt 
 
                 for prolonged periods and he continues to have 
 
                 pain in these areas with muscle spasm, limitation 
 
                 in motion that he shouldn't have and so I think 
 
                 that he does have some residual injury due to the 
 
                 fall.  I emphasize the leg being shorter because 
 
                 when one leg is shorter, that now will cause him 
 
                 to have a tilt in his pelvis and that has to be 
 
                 reflected in a change in position in the 
 
                 vertebrae; that's where the tilt will be 
 
                 compensated for in order to keep his head straight 
 
                 on top of it all.  So with that curvature in his 
 
                 back that will be induced by that pelvic tilt, 
 
                 even if it's slight, will produce a more rapid 
 
                 progression of arthritis in the back as will the 
 
                 previous injury so it's not surprising now for him 
 
                 to have some further progression of his arthritis.  
 
                 So I think that there is clearly a relationship 
 
                 between his current problems and his fall as I've 
 
                 just described.
 
            
 
            (Joint Exhibit 1, pp. 14-16)
 
            
 
                 Dr. Hines also indicated that claimant is not going to 
 
            be able to do the kind of manual labor that requires 
 
            bending, lifting, climbing and stooping.  He further 
 
            indicated:
 
            
 
                 [H]e's probably not going to be able to even stand 
 
                 for long periods or sit for long periods.  It's 
 
                 going to be if he can work at all, he's going to 
 
                 have to look for a job in which he can change 
 
                 position frequently and that doesn't require much 
 
                 in the way of operation of foot
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            controls or -- and certainly none of those 
 
            previously discussed activities.
 
            
 
            (Jt. Ex. 1, p. 17)
 
            
 
                 The doctor described claimant's fracture of each side 
 
            of the pubic rami where he indicated these two bones meet in 
 
            the middle and cause the pubic bone to be made.  He also 
 
            indicated there was another fracture of the sacrum (Jt. Ex. 
 
            1, p. 18).  He described the sacrum as a triangular bone in 
 
            the back just below the vertebra that makes up your 
 
            backbone.  The doctor indicated that if you do not have a 
 
            functioning pelvis and sacroiliac structure, you would be 
 
            unable to walk and you would have profound difficulties with 
 
            any kind of movement.  The doctor said that the pelvic area 
 
            is contained within the trunk of the body and that the 
 
            sacrum is also in the trunk of the body (Jt. Ex. 1, p. 20).  
 
            Dr. Hines opined that claimant has an 18 percent impairment 
 
            to his whole person (Deposition Exhibit 1 attached to Joint 
 
            Exhibit 1).
 
            
 
                 Marshall Flapan, M.D., opined on March 18, 1988, that 
 
            claimant had a 10 percent permanent partial impairment to 
 
            the functioning of his lower right extremity.  He further 
 
            indicated that it was too early to tell whether he could 
 
            attempt to return to his occupation as an ironworker.  Dr. 
 
            Flapan said that complications of this injury can occur as 
 
            late as two years following the date of the injury.  He 
 
            recommended at the time of his report that claimant should 
 
            seek a more sedentary occupation.  (Dep. Ex. B attached to 
 
            Jt. Ex. 1)  It is upon Dr. Flapan's impairment rating that 
 
            defendants paid 10 percent or 22 weeks of permanent partial 
 
            disability benefits based on a lower right extremity 
 
            impairment.
 
            
 
                 Defendants sent claimant to Peter D. Wirtz, M.D., an 
 
            orthopedic surgeon, on June 18, 1990.  Dr. Wirtz opined a 20 
 
            percent impairment to claimant's right lower extremity and 
 
            further opined in his report:  "The pelvic fracture and 
 
            compression fracture of L1 as well as the degenerative disc 
 
            disease is not functionally limiting and was not materially 
 
            changed with the injury 2/3/87."  (Dep. Ex. 2 attached to 
 
            Jt. Ex. 3)
 
            
 
                 This case is another example of having some specialists 
 
            substantially disagreeing as to the medical condition and 
 
            extent of impairment and the nature of the impairment of a 
 
            patient.  There is no dispute as to the causal connection of 
 
            at least a 10 percent impairment to claimant's right lower 
 
            extremity in relation to his February 3, 1987 injury.  
 
            Before we can determine whether there is greater permanent 
 
            partial disability than the 10 percent, which was obviously 
 
            paid based on a scheduled member injury, the undersigned 
 
            must determine whether claimant's injury is a scheduled 
 
            member injury or an injury to the body as a whole.
 
            
 
                 The undersigned believes that Dr. Hines' opinion is 
 
            supported by the greater weight of the evidence taking into 
 
            consideration all the medical and the nature of the fall and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the injury itself.  Dr. Hines had more contact with the 
 
            claimant than did Dr. Wirtz or Dr. Flapan.  The undersigned 
 
            finds Dr. Hines is more realistic and forthright in his 
 
            diagnosis and is more exact.  It is undisputed that claimant 
 
            broke his pelvic in two places as a result of the February 
 
            3, 1987 fall.  There is no question that the pelvic is part 
 
            of the body as a whole and part of the skeletal system upon 
 
            which substantial weight rests.  It is clear from the 
 
            medical evidence that claimant has arthritis.  It is also 
 
            clear that there was no evidence of claimant having any 
 
            effect of arthritis prior to his February 3, 1987 injury, at 
 
            least to any extent where it was impairing claimant's 
 
            ability to work and keep his employment.  It is a well-known 
 
            fact that, taking into consideration this agency's expertise 
 
            and the medical records, arthritis in a latent arthritic 
 
            condition, can be activated, accelerated or worsened 
 
            spontaneously by many causes.  One common cause is a 
 
            traumatic event.  The nature of this traumatic event whereby 
 
            the claimant fell at least 20 feet to the ground is of such 
 
            a nature that it could, and the undersigned finds did, 
 
            materially and substantially accelerated, lighten up and 
 
            worsened up any latent or inactive arthritic condition that 
 
            the claimant had as of February 3, 1987.  The undersigned 
 
            finds untenable defendants' position that claimant's 
 
            arthritic condition would have accelerated to its current 
 
            condition considering claimant's current age.  There is no 
 
            evidence that claimant would be suffering from the current 
 
            effects of arthritis along with his other complaints and 
 
            injuries if it were not for the February 3, 1987 injury.  
 
            Dr. Falpan, in his June 8, 1987 medical records, indicated:  
 
            "What develops with his hip remains to be seen.  He has been 
 
            made well aware by Dr. Crane of the possible ensuing 
 
            complications such as avascular necrosis, arthritis, etc. 
 
            from this type of injury.  What develops with his hip 
 
            remains to be seen."  (Jt. Ex. 7, p. 2.1)  Although Dr. 
 
            Wirtz allegedly measured and found no shortness or length 
 
            difference between claimant's two legs, Dr. Hines found one 
 
            leg shorter than the other.  This results in the tilting of 
 
            the spine which can also acerbate an arthritic condition.  
 
            Without question, the spine is a part of the body as a 
 
            whole.
 
            
 
                 The undersigned finds that claimant has an 18 percent 
 
            impairment to his body as a whole.  The undersigned further 
 
            finds that any prior impairment that claimant may have had 
 
            as a result of a 1978 accident was not, in fact, impairing 
 
            claimant as of the date of his February 3, 1987 accident, at 
 
            least not to any extent to be included in the 18 percent 
 
            found herein as a result of claimant's February 3, 1987 
 
            injury.
 
            
 
                 The next question is the extent of claimant's 
 
            industrial disability.  Claimant will soon be 56 years old.  
 
            His working history has been in manual labor and in work 
 
            that would basically be considered heavy labor for the most 
 
            part.  Claimant has shown motivation.  He has been a hard 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            worker all of his life and has attempted to progress in 
 
            various jobs to earn greater pay.  His ironworker job was 
 
            his best paying job.  Claimant is limited in his education, 
 
            and his transferable skills are limited.  Claimant has been 
 
            an ironworker off and on since 1971.  It is obvious from all 
 
            the medical evidence that he is unable to return to his job 
 
            as an ironworker.  It is obvious that he would be a menace 
 
            to himself and other workers walking on a beam above the 
 
            ground.  Claimant attempted to drive a truck after his 
 
            injury and found he was unable to do this.  It is obvious he 
 
            is unable to drive a truck for a living.  It appears the 
 
            most that claimant could do, if anything, would be a 
 
            sedentary type job.  It appears claimant is unable to sit or 
 
            stand for very long periods.  Claimant did seek 
 
            rehabilitation and that has not resulted in finding a job 
 
            for which he can work or stay employed.  After claimant made 
 
            an attempt to work around his injuries, he concluded that he 
 
            was unable to find a job.  Defendants have been unable to 
 
            find a job for him.  It is obvious defendant employer has no 
 
            job for which claimant could perform.  Claimant then sought 
 
            disability benefits.  It seems unreal for the claimant to 
 
            continue to find work under the present circumstances.  
 
            Claimant was working and making a good living prior to 
 
            February 3, 1987.  He is no longer working and has lost his 
 
            entire earning capacity.  Claimant's current impairment is 
 
            such that the undersigned finds under the current status of 
 
            the record.  Claimant is incapable of any meaningful 
 
            employment.
 
            
 
                 Taking into consideration claimant's transferable 
 
            skills, work experience, rehabilitation attempt, education, 
 
            age, prior injuries, current impairment, location of the 
 
            injury, motivation, functional impairment, and those other 
 
            items that are considered in determining one's industrial 
 
            disability, the undersigned finds that claimant is 
 
            permanently totally disabled.
 
            
 
                 The parties set out as an additional issue whether 
 
            claimant is an odd-lot candidate.  In light of the above 
 
            findings, the undersigned finds it is moot to further 
 
            determine whether claimant would be an odd-lot candidate 
 
            since the undersigned has already found claimant to be 
 
            totally disabled.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 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). 
 
            
 
                 Expert medical evidence must be considered with all 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. 
 
            United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 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."
 
            
 
                 The opinion of the supreme court in Olson v. Goodyear 
 
            Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), 
 
            cited with approval a decision of the industrial 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            commissioner for the following proposition:
 
            
 
                    Disability * * * as defined by the Compensation 
 
                 Act means industrial disability, although 
 
                 functional disability is an element to be 
 
                 considered....In determining industrial 
 
                 disability, consideration may be given to the 
 
                 injured employee's age, education, qualifications, 
 
                 experience and his inability, because of the 
 
                 injury, to engage in employment for which he is 
 
                 fitted. * * * *
 
            
 
                 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).
 
            
 
                 Similarly, a claimant's inability to find other 
 
            suitable work after making bona fide efforts to find such 
 
            work may indicate that relief would be granted.  McSpadden 
 
            v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980).
 
            
 
               preexisting arthritic condition and L-1 vertebra injury, 
 
            resulting in claimant becoming permanently totally disabled.
 
            
 
                 That claimant has been unable to find a job which he 
 
            was able to perform due to his February 3, 1987 injury and 
 
            having failed in his attempts is on union disability pension 
 
            and social security disability.
 
            
 
                 That claimant has a 100 percent loss of earning 
 
            capacity.
 
            
 
                 That claimant's permanent total disability is causally 
 
            connected to his February 3, 1987 work injury.
 
            
 
                 That claimant has a 100 percent industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant compensation for permanent 
 
            total disability at the stipulated rate of two hundred 
 
            ninety-two and 28/100 dollars ($292.28) per week during the 
 
            period of claimant's disability, commencing August 19, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.  Since all payments to which the claimant, even 
 
            under this decision, would be entitled to prior to August 
 
            19, 1988 was stipulated to and paid in full by the 
 
            defendants and since the parties agreed that any additional 
 
            permanent partial disability benefits over and above the 
 
            twenty-two (22) weeks previously paid to claimant would 
 
            begin on August 19, 1988, there is no additional credit to 
 
            the defendants under this decision.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of September, 1990.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr J W McGrath
 
            Attorney at Law
 
            Fourth & Dodge St
 
            P O Box 453
 
            Keosauqua IA 52565
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Mr Walter F Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803.1; 1804; 52206
 
                                          Filed September 5, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES W. SCHERTZ,           :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 845391
 
            vs.                           :
 
                                          :
 
            J & J STEEL, INC.,            :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1804
 
            Found claimant permanently, totally disabled.
 
            
 
            1803.1
 
            Found claimant's injury was to his body as a whole and not 
 
            to a scheduled member.  Claimant's injury broke his hip and 
 
            pelvis when he fell 20 feet from an iron beam on his rear.
 
            
 
            52206
 
            Claimant's injury substantially and materially aggravated 
 
            and lightened up an inactive arthritic condition and prior 
 
            vertebral injury which prior condition and injury were not 
 
            affecting or improving claimant's work as an ironworker 
 
            prior to his February 3, 1987 injury.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JERRY R. ARRICK,
 
         
 
              Claimant,
 
                                                   FILE NO. 845438
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         PERKINS RESTAURANTS, INC.,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Jerry R. 
 
         Arrick, claimant, against Perkins Restaurants, Inc., employer 
 
         (hereinafter referred to as Perkins), and Wausau Insurance 
 
         Companies, insurance carrier, for workers' compensation benefits 
 
         as a result of an alleged injury on May 7, 1986.  On April 27, 
 
         1988 a hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Nanette Arrick and Terry Garvey.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  Claimant's rate of weekly compensation in the event of 
 
              an award of weekly benefits from this proceeding shall be 
 
              $109.99 per week; and,
 
         
 
              2.  Claimant is not seeking temporary total disability or 
 
              healing period benefits in this proceeding.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
              Whether claimant received an injury arising out of and in 
 
         the course of employment;
 
         
 
              II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   2
 
         
 
         
 
             III.  The extent of claimant's entitlement to weekly 
 
         benefits for permanent disability; and,
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Perkins from 
 
         September, 1985 until January, 1987 as a waiter and later as an 
 
         associate assistant manager.  Claimant stated that his duties 
 
         consisted of waiting on and cleaning tables and managerial duties 
 
         as an assistant manager.  Claimant's supervisor testified that 
 
         claimant was a good employee and was commended in writing on one 
 
         occasion for the quality of his work.  Claimant stated at hearing 
 
         that he left his employment after the work injury to accept an 
 
         assistant manager position at Hardee's Restaurants for career 
 
         reasons and not due to his claimed work injuries in this case.
 
         
 
              Claimant testified that on May 7, 1986, while taking down a 
 
         very large American flag in front of the Perkins' restaurant in 
 
         which he was working, the wind caught the flag and threw him into 
 
         an adjacent parked car.  Claimant said that he struck his lower 
 
         abdomen and his right elbow.  Claimant was taken to the hospital 
 
         where he received treatment for a contusion to the right elbow.  
 
         Tests at time indicated the absence of a fracture and claimant 
 
         was allowed to return immediately to regular duty by the 
 
         emergency room physician, Lynn Leibel, M.D.  Dr. Leibel did not 
 
         report any complaints at that time of back or abdominal pain.
 
         
 
              On May 20, 1986 claimant returned to the emergency room with 
 
         complaints of abdominal pain and nausea.  This nausea and pain 
 
         increased in intensity and claimant was admitted to the hospital 
 
         for testing in June, 1986.  After extensive testing the cause of 
 
         the abdominal pain was not found.  Claimant's physician at the 
 
         time, D. P. Moffett, M.D., felt that claimant's pain and nausea 
 
         were secondary to duodenitis and ulcerations of the duodenal 
 
         bulb, an intestinal problem.  On October 29, 1986 claimant 
 
         reported to his superiors at Perkins that he could not continue 
 
         working due to left lower quadrant pain for the last two days.  
 
         Claimant was again hospitalized on October 31, 1986 for this pain 
 
         and lateral flank pain along with vomiting.  Again, claimant 
 
         underwent another round of testing.  As the pain tended to 
 
         radiate into the back, claimant's care was transferred to Maurice 
 
         Margules, M.D., a neurosurgeon.  Dr. Margules concluded that 
 
         claimant had suffered back strain and treated claimant until 
 
         November, 1987.  On May 4, 1987 Dr. Margules states as follows:
 
         
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   3
 
         
 
              It is our opinion at this time that this patient has made a 
 
              satisfactory recovery except for residual pain at the level 
 
              of the mid-dorsal region which will continue for an 
 
              undetermined period of time.  No specific treatment is 
 
              recommended at this time.
 
         
 
              On December 18, 1987 Dr. Margules further states as 
 
              follows:
 
         
 
              You have our previous letter of May 4th, 1987; since then 
 
              there has been no improvement of the patients condition.  He 
 
              continues to complain of pain similar to the one he had 
 
              following the accident of May 7, 1986.  I have no specific 
 
              treatment to recommend [sic] to Mr. Arrick at this time.  I 
 
              only recommend that the patient try to obtain a sedentary 
 
              type of employment.
 
         
 
              As a result of the injuries sustained on May 7, 1986 it is 
 
              our opinion that the patient has a partial permanent 
 
              physical disability that is rated at 5% of the body as a 
 
              whole.
 
         
 
              On June 23, 1987 claimant was examined by an orthopedic 
 
         surgeon, Michael Morrison, M.D.  It was the opinion of Dr. 
 
         Morrison that claimant did not suffer permanent impairment from 
 
         the alleged work injury.
 
         
 
              Prior to May 7, 1986, claimant was admitted to Mercy 
 
         Hospital on several occasions.  In July, 1984, claimant 
 
         voluntarily admitted himself to the chemical dependency unit.  At 
 
         that time claimant had related a history of stomach problems.  In 
 
         January, 1985, claimant was admitted for an intentional overdose 
 
         of Contact cold pills and other medication.  In November, 1985, 
 
         claimant received treatment for "leg numbness, vomiting and 
 
         headache."
 
         
 
              Claimant testified that his back continues to bother him 
 
         most of the time.  He described a throbbing lower back pain while 
 
         sitting or riding.  He described no real pattern to the pain 
 
         episodes.  Claimant stated that he was an avid bowler before the 
 
         work injury but has not bowled since.  Claimant states that he 
 
         must restrict the amount of standing and walking he does.  
 
         Claimant testified that he believes that all of his back problems 
 
         are attributable to the May 7, 1986 fall at Perkins.  Claimant's 
 
         wife testified that from her observations of claimant, he gave 
 
         the appearance of having back problems after the fall incident in 
 
         May, 1986.  She stated that claimant has been "down" or bed 
 
         ridden on three occasions since the incident in October, 1986, 
 
         May, 1987, and again in October, 1987.
 
         
 
              Claimant testified that Hardee's terminated him for failure 
 
         to perform his duties which he attributes to his back problems.  
 
         Claimant currently is employed as a data entry operator and 
 
         complains that his back continues to bother him in his current 
 
         job.
 
         
 
              Claimant testified that his past employment primarily 
 
         consists of work as a restaurant waiter.  His earnings from such 
 
         employment at the time of the work injury was between $6,000 and 
 
         $7,000 annually.
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   4
 
         
 
         
 
              Claimant stated at the hearing that he is 22 years of age 
 
         and has a high school education.  Claimant appeared to possess 
 
         above average intelligence while testifying at hearing.
 
         
 
              Claimant's appearance and demeanor at the hearing and that 
 
         of his wife's indicated that they were testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. Desoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              There is little dispute in this case that claimant suffered 
 
         some sort of work injury on May 7, 1986.  The fighting issue in 
 
         this case is whether the injury was limited to the elbow or also 
 
         involved the back.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.   A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   5
 
         
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an . employee is not entitled to recover 
 
         for the results of a preexisting injury or disease but can 
 
         recover for an aggravation thereof which resulted in the 
 
         disability found to exist.  Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).
 
         
 
              Only two physicians have rendered causal connection opinions 
 
         in this case.  Dr. Margules opines that claimant suffered a back 
 
         injury on May 7, 1986 and believes that the abdominal pain 
 
         claimant suffered 14 days after the incident was referred back 
 
         pain.  It is not specifically known whether Dr. Margules was 
 
         aware of claimant's history of stomach problems and vomiting 
 
         prior to May, 1986, although it can be safely assumed that Dr. 
 
         Margules had access to all of the hospital records for his review 
 
         at the time of the initial consultation during the 
 
         hospitalization in November, 1986.  Claimant has only been 
 
         admitted to one hospital over the last several years and these 
 
         records would include his complete history.  Only Dr. Morrison 
 
         disputes the permanency opinions of Dr. Margules.  Given a more 
 
         extensive involvement in claimant's medical care, Dr. MargulesO 
 
         opinions are given the greater weight.  Therefore, claimant has 
 
         established by a preponderance of the evidence that he suffered a 
 
         five percent permanent partial impairment as a result of the 
 
         injury on May 7, 1986.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employeeOs 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.  
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   6
 
         
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's condition before the work injury was certainly 
 
         not excellent but he appeared to have no functional impairments 
 
         or ascertainable disabilities.  There is no evidence of drug or 
 
         alcohol abuse after the 1984 hospitalization.  Claimant was able 
 
         to fully perform physical tasks involving repetitive lifting, 
 
         bending, twisting and stooping along with prolonged standing and 
 
         sitting before the work injury.
 
         
 
              Claimant's treating physician, Dr. Margules, has given 
 
         claimant a significant permanent impairment rating to the body as 
 
         a whole and has restricted his work activities by prohibiting 
 
         tasks such as heavy physical work and prolonged sitting and 
 
         standing.
 
         
 
              Claimant's medical condition prevents him from returning to 
 
         his former work as a waiter which requires prolonged standing.  
 
         Claimant testified that he was fired for an inability to perform 
 
         work at HardeeOs.  However, claimant was not very specific about 
 
         this incident and little can be concluded from his testimony 
 
         dealing with his loss of employment at HardeeOs.  Claimant has 
 
         demonstrated by his own testimony that he has the ability to 
 
         perform sedentary work.
 
         
 
              Claimant has not shown a substantial loss of earnings as a 
 
         result of his inability to return to work as a waiter.  His past 
 
         waiter employment did not pay appreciably more than his current 
 
         sedentary clerical work.  However, an industrial disability award 
 
         can still be awarded for a loss of earning capacity despite a 
 
         failure to show actual loss of earnings.  Michael v. Harrison 
 
         County, Thirty-Fourth Biennial Report of the Iowa Industrial 
 
         Commissioner 218, 220 (Appeal Decision 1979).
 
         
 
              Claimant is 22 years old and at the beginning of his working 
 
         career.  His age and intelligence is favorable for retraining.  
 
         See Walton v. B & H Tank Corporation, II Iowa Industrial 
 
         Commissioner Report 426 (Appeal Decision 1981).
 
         
 
              After examination of all the factors it is found as a matter 
 
         of fact that claimant has suffered a 15 percent loss of his 
 
         earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 75 weeks of 
 
         permanent partial disability benefits which is 15 percent of the 
 
         500 weeks, the maximum allowable number of weeks for an injury to 
 
         the body as a whole.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27 claimant is 
 
         entitled to reasonable medical expenses for treatment of the work 
 
         injury.  Claimant is entitled to an order of reimbursement only 
 
         for those expenses which he has previously paid.  Krohn v.State, 
 
         420 N.W.2d 463 (Iowa 1988).
 
         
 
              All the requested medical benefits in the prehearing report, 
 
         exhibits 8 through 15 appear reasonable and causally connected to 
 
         the work injury from the evidence submitted.  These expenses 
 
         total $7,307.17 and defendant will be awarded to pay them either 
 
         to claimant if he has paid the bills or directly to the provider 
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   7
 
         
 
         it they are unpaid.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant and his wife were credible witnesses.
 
         
 
              2.  On May 7, 1986 claimant suffered an injury to his right 
 
         elbow and low back which arose out of and in the course of 
 
         employment with Perkins.  The elbow injury consisted only of a 
 
         contusion but the back injury developed an onset of pain 
 
         beginning on May 20, 1986 and which continues to the present 
 
         time.
 
         
 
              3.  The work injury of May 7, 1986 was a cause of a five 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of no heavy physical work and restricted activity to 
 
         sedentary occupations.
 
         
 
              4.  The work injury of May 7, 1986 and the resulting 
 
         permanent partial impairment was a cause of a 15 percent loss of 
 
         earning capacity.  Claimant is unable to return to work as a 
 
         waiter due to his standing requirements of his job.  Claimant's 
 
         only work experience has been as a waiter and as a helper in a 
 
         food service establishment.  However, claimant is 22 years of age 
 
         and has a high school education with above average intelligence.  
 
         He has not suffered a substantial loss of actual earnings 
 
         Claimant is currently employed in suitable sedentary work.  
 
         Claimant has a high degree of potential for vocational 
 
         rehabilitation.
 
         
 
              5.  The medical expenses listed in the preheating report, 
 
         exhibits 8 through 15, are fair and reasonable and were incurred 
 
         for claimant for reasonable and necessary treatment of his back 
 
         condition as a result of the work injury on May 7, 1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability and medical benefits 
 
         as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred (75) weeks 
 
         of permanent partial disability benefits at the rate of one 
 
         hundred nine and 99/100 dollars ($109.99) per week from May 7, 
 
         1986.
 
         
 
              2.  Defendants shall pay the medical expenses listed in 
 
         exhibits 8 through 15 either directed to claimant if paid or to 
 
         the medical provider it unpaid.  Claimant's attorney shall have a 
 
         lien for his fees upon any of these medical benefits obtained by 
 
         him in this proceeding prior to any direct payment of those 
 
         expenses to a provider.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   8
 
         
 
              5.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas L. Root
 
         Attorney at Law
 
         306 First Federal
 
         Savings & Loan Bldg.
 
         P. 0. Box 1502
 
         Council Bluffs, Iowa 51502
 

 
         
 
         
 
         
 
         ARRICK V. PERKINS RESTAURANTS, INC.
 
         PAGE   9
 
         
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         370 Midlands Mall
 
         P. 0. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed July 29, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JERRY R. ARRICK,
 
         
 
              Claimant,
 
                                                 FILE NO. 845438
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         
 
         PERKINS RESTAURANTS, INC.,
 
                                                 D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded a 15 percent permanent partial disability 
 
         benefits as a result of a work injury which prohibited his return 
 
         to his occupation as a waiter in a restaurant setting.  However, 
 
         claimant will experience only a small loss of earning capacity 
 
         because ms income as a waiter is not appreciably more than 
 
         sedentary clerical work.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JERRY R. ARRICK,
 
         
 
              Claimant,
 
                                                 File No. 845438
 
         VS.
 
                                                     N U N C
 
         
 
         PERKINS RESTAURANTS, INC.,
 
                                                      P R 0
 
         
 
              Employer,
 
                                                     T U N C
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              In order to correct a typographical error, paragraph number 
 
         one of the order portion of the decision is arended by striking 
 
         the words "one hundred" following the word claimant and inserting 
 
         in lieu thereof the words "seventy-five."
 
         
 
              Signed and filed this 29th day of July, 1988
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas L. Root
 
         Attorney at Law
 
         306 First Federal
 
         Savings & Loan Bldg.
 
         P. 0. Box 1502
 
         Council Blufts, Iowa 51502
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         370 Midlands Mall
 
         P. 0. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RUDOLPH K. BAKER,	      :
 
		                      :
 
                 Claimant, 	      :         File No. 845576
 
                      		      :
 
		            vs.       :      A R B I T R A T I O N
 
                		      :
 
            SIVYER STEEL CORP.,       :         D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ____________________________________________________________
 
            STATEMENT OF THE CASE
 
            This is a proceeding in arbitration brought by Rudolph K. 
 
            Baker against his former employer, Sivyer Steel Corporation, 
 
            based upon an alleged injury of December 8, 1986.  The 
 
            claimed injury is varicose veins affecting the claimant's 
 
            left leg.  The disputed issues are whether the condition is 
 
            an injury which arose out of and in the course of his 
 
            employment; whether the alleged injury is a proximate cause 
 
            of any permanent disability affecting Baker's left leg; and, 
 
            if so, the extent of permanent disability attributable to 
 
            the alleged injury.  The claimant stipulated that he had 
 
            been paid compensation benefits for all time he had missed 
 
            work on account of his leg condition and is not seeking any 
 
            additional temporary total disability, temporary partial 
 
            disability or healing period compensation.
 
            The case was heard at Davenport, Iowa, on October 28, 1991.  
 
            The record consists of joint exhibits 1 through 7 and the 
 
            testimony of claimant.
 
            findings of fact
 
            Having considered all the evidence received, together with 
 
            the appearance and demeanor of the witness, the following 
 
            findings of fact are made.
 
            Rudolph K. Baker is a gentleman who was employed at Sivyer 
 
            Steel Corporation in Bettendorf, Iowa, from September 1965 
 
            until his employment ended as a result of a strike in 
 
            September 1988.  Sivyer Steel Corporation operates a foundry 
 
            and approximately 90 percent of Baker's time with the 
 
            employer was spent working as a core maker.
 
            On December 8, 1986, he was assigned to make large cores.  
 
            Part of the work involved carrying the cores and placing 
 
            them on the rack upon which they were baked.  Previously, 
 
            carrying the cores had been performed by two individuals and 
 
            December 8, 1986, was the first day that claimant had ever 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            been required to perform that function alone.  Baker felt 
 
            nothing unusual while at work, but when he returned home 
 
            that evening, he noticed an unusual sensation in his left 
 
            leg and observed redness around the ankle.
 
            Baker has a history of varicose vein problems dating back 
 
            prior to 1971 when he underwent surgical stripping of veins 
 
            in his left leg (exhibit 1).  Following the surgery, Baker's 
 
            symptoms resolved and he was essentially, though not 
 
            completely, asymptomatic prior to December 8, 1986 (exhibit 
 
            2, page 5).
 
            Baker sought medical treatment and was restricted against 
 
            prolonged standing or heavy lifting.  He was provided 
 
            support stockings and medication (exhibit 2, pages 4 and 5).  
 
            Claimant's complaints did not resolve and he was referred 
 
            for an orthopaedic evaluation which failed to disclose any 
 
            spinal causative factor for his leg discomfort (exhibit 2, 
 
            page 2).  The last treatment note is dated April 29, 1987.  
 
            It notes that claimant had continuing slight swelling of 
 
            both the left lower extremity and right lower extremity, but 
 
            that it was not clinically severe.  The note indicates that 
 
            claimant was advised to continue wearing the support 
 
            stocking (exhibit 2, page 3).
 
            Part of claimant's treatment and care was provided by 
 
            general surgeon C. R. Fesenmeyer, M.D.  Dr. Fesenmeyer 
 
            expressed the opinion that claimant had a temporary 
 
            aggravation of his preexisting varicose vein condition as a 
 
            result of his work activities, but that the aggravation was 
 
            only temporary and produced no permanent impairment.  Dr. 
 
            Fesenmeyer related the need for support stockings and 
 
            activity restrictions to the preexisting varicosities and 
 
            not to any incident in November or December of 1986 (exhibit 
 
            3, pages 2-5).  While Dr. Fesenmeyer has assigned a 15 
 
            percent permanent impairment rating of claimant's left lower 
 
            extremity due to the varicose vein condition, he has not 
 
            attributed any part of that impairment to any work injury 
 
            (exhibit 3, page 1).
 
            While there is evidence in the record which seems to 
 
            indicate some possible worsening of the claimant's varicose 
 
            vein condition, that evidence is outweighed by the opinion 
 
            of Dr. Fesenmeyer which characterizes the 1986 injury as a 
 
            temporary aggravation.  There is no expert medical opinion 
 
            evidence which conflicts with the opinion expressed by Dr. 
 
            Fesenmeyer.  The assessment of Dr. Fesenmeyer is therefore 
 
            found to be correct.
 
            conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that he received an injury on December 8, 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            128 (1967). 
 
            An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of December 8, 1986, is 
 
            causally related to the disability on which he now bases his 
 
            claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 
 
            607 (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).
 
            An employee is not entitled to recover for the results of a 
 
            preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            The fact that Rudolph K. Baker had preexisting varicose 
 
            veins does not make him immune from injury.  He has proven, 
 
            by a preponderance of the evidence, that he sustained an 
 
            injury in the nature of an aggravation of that preexisting 
 
            condition on December 8, 1986.
 
            Since the claimant expressly denied any claim for additional 
 
            temporary total disability or healing period compensation, 
 
            the only issue is the claim for permanent partial disability 
 
            compensation.  Baker has failed to prove, by a preponderance 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            of the evidence, that the injury produced any permanent 
 
            disability.  The evidence from Dr. Fesenmeyer clearly 
 
            establishes that the injury is limited to a temporary 
 
            aggravation of the preexisting condition.  It is therefore 
 
            determined that Rudolph Baker is not entitled to recover any 
 
            permanent partial disability compensation on account of the 
 
            December 8, 1986 injury.
 
            Since claimant has prevailed in establishing the occurrence 
 
            of injury arising out of and in the course of employment, he 
 
            will be awarded costs, despite the fact that he is not 
 
            awarded any additional recovery.
 
            order
 
            IT IS FURTHER ORDERED that claimant take nothing from this 
 
            proceeding.
 
            IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            Signed and filed this ______ day of ____________, 1991.
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            4th Floor, Rock Island Bank Bldg.
 
            P.O. Box 4298
 
            Rock Island, Illinois  61204-4298
 
            
 
            Mr. Jeffrey M. Margolin
 
            Mr. E. J. Kelly
 
            Attorneys at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803.1; 5-2206
 
                           Filed November 5, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            RUDOLPH K. BAKER,	      :
 
                      		      :
 
                 Claimant, 	      :         File No. 845576
 
                      		      :
 
		            vs.       :      A R B I T R A T I O N
 
        		              :
 
            SIVYER STEEL CORP.,	      :         D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ____________________________________________________________
 
            
 
            5-1803.1; 5-2206
 
            Claimant proved a temporary aggravation of a preexisting 
 
            condition, but failed to prove any permanency resulting from 
 
            the injury.