Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL J. HEATH,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  853060
 
            W.P. JOHNSON COMPANY,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            J. Heath as a result of injuries to his head which occurred 
 
            on May 13, 1987.  Defendants denied compensability for the 
 
            injury, paid no weekly benefits and paid no medical 
 
            expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on April 3, 1991.  The record in the proceeding 
 
            consists of claimant's exhibits 1; 2; 3; 4, pages 3 and 4; 
 
            5; 6; 7; 8; 9; defendants' exhibits A through D and 
 
            testimony from claimant.
 
            
 
                 Pages 1 and 2 of claimant's exhibit 4 were accepted as 
 
            an offer of proof.  Claimant's objection to pages 18 and 19 
 
            of defendants' exhibit A is sustained as the documents were 
 
            not served 15 days prior to hearing and pages 18 and 19 are 
 
            accepted as an offer of proof only.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on May 13, 
 
            1987, which arose out of and in the course of employment;
 
            
 
                 2.  The causal connection of the injury to temporary 
 
            disability during a period of recovery; and
 
            
 
                 3.  Claimant's entitlement to Iowa code section 85.27 
 
            benefits.
 
            
 
                 It is noted that by stipulation of the parties the 
 
            issues of odd-lot and permanent partial disability are 
 
            bifurcated.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Michael Heath, was employed by defendant W.P. 
 
            Johnson Company on May 13, 1987, as a working supervisor.  
 
            Claimant worked the third shift which started at 11 p.m.  On 
 
            May 13, 1987, claimant went on break at about 1 a.m.  This 
 
            break period was to last about 10 minutes and claimant was 
 
            paid for that time.
 
            
 
                 Claimant stated that other employees would take their 
 
            breaks outside of the plant in order to escape the heat 
 
            produced by the factory's furnace.  On May 13, 1987, 
 
            claimant went out to his car to get a car jack for a friend.  
 
            After break was over claimant reentered the factory.  At 
 
            that point in time, claimant's memory of the events in 
 
            question ceased.  The next thing claimant remembered was 
 
            waking up in Broadlawns Hospital with a severe headache.
 
            
 
                 Based upon the various records, depositions and hearsay 
 
            testimony, it appears that after entering the plant, 
 
            claimant sustained a severe trauma to the head.  Claimant 
 
            was found wandering around the welding area with his shirt 
 
            off.  Claimant was holding his shirt to his right ear which 
 
            was oozing blood.
 
            
 
                 Claimant allegedly stated that he had punctured his ear 
 
            with a toothpick, (exhibit D).  Claimant was taken to 
 
            Broadlawns Hospital for treatment.
 
            
 
                 Upon claimant's return to work after recovery he was 
 
            unable to locate anyone with information concerning the 
 
            cause of his head injury.  To date of hearing no evidence 
 
            was obtained concerning how the claimant hit his head or 
 
            punctured his ear.
 
            
 
                 The medical records substantiate that claimant 
 
            sustained some type of trauma to the skull (ex. 1, pages 
 
            1-3; ex; 2, pp. 47 & 54).  The doctors who took claimant's 
 
            history also related that the cause of the trauma is unknown 
 
            (ex. 2, p. 54).  The conclusion is that claimant's head 
 
            injury is secondary to a trauma of unknown origin(ex. 2, p. 
 
            67).
 
            
 
                 The deposition testimony of Tammy Reiner indicates that 
 
            no one had knowledge of how claimant sustained a head injury 
 
            (ex. b, p. 21).  The deposition of Johnny Glick also 
 
            indicates a lack of knowledge of the cause of claimant's 
 
            head injury (ex. C).
 
            
 
                 The deposition of Jacqueline Johnson revealed that 
 
            claimant  thought he had stuck a toothpick in his ear (ex. 
 
            D).  However, considering claimant's condition at the time 
 
            he was found on May 13, 1987, those statements are probably 
 
            unreliable.
 
            
 
                 In this proceeding claimant has the burden of proving 
 
            by a preponderance of the evidence that the injury of May 
 
            13, 1987, arose out of and in the course of employment.  The 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            words, "arising out of" refer to the cause or source of the 
 
            injury.  In other words, the injury must have some nexus to 
 
            the employment.  It is found that claimant has failed to 
 
            prove by a preponderance of the evidence that the head 
 
            injury of May 13, 1987, was in any way caused by his 
 
            employment.  The reasoning follows:
 
            
 
                 From the evidence offered it is found that claimant did 
 
            sustain a trauma to the head on May 13, 1987, while at work.  
 
            The head trauma is found to be one which is sometimes 
 
            referred to as idiopathic injury which occurred for a reason 
 
            which has not been shown to be related to claimant's 
 
            employment.
 
            
 
                 The medical evidence presented clearly reveals a head 
 
            trauma with a resulting injury to the brain all of which 
 
            occurred on May 13, 1987 (ex. 1, p. 1; ex. 2, p. 47).  The 
 
            record is also completely devoid of evidence concerning the 
 
            source of the trauma (ex. 2, p. 54).
 
            
 
                 It is entirely possible that the May 13, 1987, head 
 
            trauma was caused by an assault personal to claimant or by a 
 
            fall caused by an illness not related to work.  Any number 
 
            of plausible theories can be propounded.  In summary there 
 
            is no evidence which arises above the level of speculation 
 
            to support a finding that the May 13, 1987, head trauma was 
 
            caused by his employment.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on May 13, 1987, 
 
            which arose out of and in the course his employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The law concerning idiopathic trauma was discussed in 
 
            the following arbitration decision filed before this agency:
 
            
 
                 The controlling issue in this case is whether an 
 
                 injury and the condition in claimant's back arose 
 
                 out of his employment.  The general rule is that 
 
                 the results of an idiopathic fall are not normally 
 
                 compensable since the fall itself was caused by an 
 
                 idiopathic condition which did not have any 
 
                 relation to claimant's employment.  In O'Rourke v. 
 
                 North Star Chemicals, Inc., 218 N.W.2d 192, 194 
 
                 (Minn 1979), a case dealing with a subarachnoid 
 
                 hemorrhage, the Minnesota Supreme Court stated:
 
            
 
                      [1] The evidence permitting the 
 
                      inference that employee fell into the 
 
                      boxcar also compels the inference that 
 
                      his fall itself was caused by an 
 
                      idiopathic condition not shown to have 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            ns 628, 630 (1985)].
 
            
 
                 The fact that an injury occurs on the employer's 
 
            premisses and during work hours does not automatically make 
 
            it compensable.  For example a claimant who swallowed a 
 
            chicken bone while eating at work failed to prove an injury 
 
            because eating chicken is equally hazardous whether 
 
            performed at work or elsewhere.  Klodt v. Hillside Manor 
 
            Care Center, file number 855442 (Appeal Decision 1989).
 
            
 
                 In the case at hand no evidence was presented to 
 
            establish the manner in which claimant's head trauma was 
 
            incurred; therefore, the analysis of whether the trauma is 
 
            related to work cannot be made.  Claimant has failed to 
 
            prove by a preponderance of the evidence that he sustained 
 
            an injury on May 13, 1987, arising out of and in the course 
 
            of employment with defendant employer.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 That the parties are taxed with their respective costs 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
                 Copies to:
 
            
 
            Mr. Michael Jankins
 
            Attorney at Law
 
            2323 Grand Ave
 
            Des Moines, Iowa  50312
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            8th Floor Fleming Bldg.
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      51100
 
                      Filed May 1, 1991
 
                      MARLON D. MORMANN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MICHAEL J. HEATH,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 853060
 
            W.P. JOHNSON COMPANY,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            TRAVELERS INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51100
 
            Idiopathic injury case.  Claimant received a brain injury of 
 
            unknown origin when returning from break.  No witnesses were 
 
            found and claimant lost all memory of what happened upon his 
 
            entering employer's factory.  Claim failed as no proof 
 
            available revealing that injury arose out of employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL SKIVER,
 
         
 
              Claimant,
 
         vs.
 
         
 
         DONOHOO STEEL TREATING CO.,                  File No. 853199
 
         
 
              Employer,                                 A P P E A L
 
         
 
         and                                            R U L I N G
 
         
 
         AMERICAN STATES INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
         part:
 
         
 
                 No appeal shall be separately taken under this or 
 
              4.25 (17A, 86) from an interlocutory decision, order or 
 
              ruling of a deputy industrial commissioner.  A 
 
              decision, order or ruling is interlocutory if it does 
 
              not dispose of the contested case, unless the sole 
 
              issue remaining for determination is claimant's 
 
              entitlement to additional compensation for unreasonable 
 
              denial or delay of payment pursuant to Iowa Code 
 
              section 86.13.
 
         
 
              The ruling filed March 29, 1988, which is the subject matter 
 
         of this appeal, is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed is hereby dismissed.
 
         
 
         
 
               Signed and filed this 25th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         SKIVER V. DONOHOO STEEL TREATING CO.
 
         Page   2
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Michael D. Skiver
 
         1217 North Blanchard St.
 
         Davenport, Iowa 52804
 
         CERTIFIED MAIL
 
         
 
         Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWARD NYE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 888035 & 853265
 
            CONSOLIDATED PACKAGING CORP., :
 
                                          :      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 brought by Edward 
 
            Nye, claimant, against Consolidated Packaging Corporation, 
 
            employer (hereinafter referred to as Consolidated), and 
 
            Liberty Mutual Insurance Company, insurance carrier, defen
 
            dants, for workers' compensation benefits as a result of 
 
            alleged injuries on May 1, 1987 and June 7, 1988.  It should 
 
            be noted that at hearing the caption was ordered changed to 
 
            reflect the real name of the defendant employer.  On 
 
            February 27, 1991, 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 con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Consolidated at the time of the alleged 
 
            injuries.
 
            
 
                  2.  On June 7, 1988, claimant received an injury which 
 
            arose out of and in the course of his employment with 
 
            Consolidated.
 
            
 
                 3.  Claimant is not seeking additional temporary total 
 
            disability or healing period benefits for either injury.
 
            
 
                 4.  If the injury is found to have caused permanent 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 5.  Claimant's rate of weekly compensation for both 
 
            injuries shall be $303.30.
 
            
 
                 6.  The issue of medical benefits raised at the pre
 
            hearing conference is no longer in dispute.  Also, the claim 
 
            of the application of the odd-lot doctrine was withdrawn at 
 
            the time of hearing.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury on May 1, 
 
            1987, arising out of and in the course of his employment 
 
            with Consolidated; and,
 
            
 
                  II.  The extent of claimant's entitlement to permanent 
 
            disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Consolidated since 1977 and 
 
            continues to do so at the present time.  Since 1977, 
 
            claimant has been a maintenance mechanic and he continues to 
 
            perform this same job at the present time.
 
            
 
                 On or about May 1, 1987, claimant injured the skin of 
 
            his arm, back and chest from a severe burn.  The burn 
 
            occurred when a plug was left out of a fitting and very hot 
 
            water sprayed onto claimant's body.  The injury arose out of 
 
            and in the course of his employment.  Claimant was hospital
 
            ized for five days as a result of the injury and he was off 
 
            work for six to seven weeks.  Although claimant has not 
 
            received medical treatment recently, upon doctors' advice he 
 
            must regularly apply oil to the burn scars.  Claimant states 
 
            that he cannot take off his shirt when he is outdoors 
 
            because of the risk of sunburn on the scars.
 
            
 
                 Due to the need of regular oiling of the scar tissue 
 
            and avoidance of direct sunlight, claimant has suffered a 
 
            mild permanent partial impairment or loss of use to the body 
 
            as a whole from the May 1, 1987 injury.  Given the 
 
            claimant's age of 58; his work experienced primarily con
 
            sisting of only heavy maintenance work which at times places 
 
            him outdoors; and, claimant's mild problems with the use of 
 
            the area of his body containing the scars, claimant has suf
 
            fered a mild three percent loss of earning capacity as a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            result of the May 1, 1987 burn injury.
 
            
 
                 On or about June 7, 1988, claimant fell off a ladder 
 
            injuring his low back.  The final medical diagnosis was a 
 
            herniated disc.  When conservative treatment failed to alle
 
            viate claimant's low back pain, claimant underwent two back 
 
            surgeries.  Claimant returned to the same job following 
 
            recovery from these surgeries but with extensive restric
 
            tions on his physical activity.
 
            
 
                 As a result of the work injury of June 7, 1988, 
 
            claimant has suffered a 20 percent permanent partial impair
 
            ment to or loss of use to the body as a whole.  This is an 
 
            additional impairment over and above the impairment found as 
 
            a result of the burn injury in May of 1987.  Also, as a 
 
            result of the injury, claimant is permanently restricted 
 
            from activity consisting of lifting over 14 pounds from a 
 
            squat and 25 pounds from an arm lift.  Claimant is also 
 
            restricted from repetitive lifting of no more than seven 
 
            pounds from a squat and 12 pounds from an arm lift.  
 
            Claimant is unable to sit longer than an hour and must be 
 
            able to change positions regularly to avoid pain according 
 
            to his physicians.  Claimant's present back condition is 
 
            causally connected to the work injury according to all of 
 
            the medical experts who have treated or examined claimant 
 
            for his back problems.  The finding of impairment and physi
 
            cal restrictions is based upon the views of the physicians 
 
            at the Spine Diagnosis and Treatment Center at the 
 
            University of Iowa Hospitals and Clinics.  These physicians 
 
            are the last treating physicians for claimant.  Contrary 
 
            views from one time evaluators such as Peter Wirtz, M.D., 
 
            were rejected due to their lack of clinical involvement in 
 
            claimant's course of treatment.  There is evidence that 
 
            claimant had back pain prior to the injury but the two 
 
            physicians who performed the surgeries on claimant's back 
 
            rejected the idea that such pain was indicative of a prior 
 
            herniation.  Both agreed that the disc herniation repaired 
 
            by the surgeries was of recent origin and due to the fall at 
 
            work in June of 1988.  Claimant states that he continues to 
 
            have burning pain in his back and legs despite relatively 
 
            successful surgery.  Claimant is severely restricted in his 
 
            household and recreational activities.
 
            
 
                 As a result of the work injury of June 7, 1988, 
 
            claimant has suffered a 20 percent loss of earning capacity.  
 
            Claimant's medical condition before the work injury was 
 
            excellent and he had no severe functional impairments or 
 
            disabilities.  This finding of a loss of earning capacity is 
 
            in excess of the loss of earning capacity which occurred as 
 
            a result of the burn injury.  Before the work injury 
 
            claimant was able to fully perform physical tasks involving 
 
            heavy lifting, repetitive lifting, bending, twisting and 
 
            stooping and prolonged sitting and standing.  Due to his 
 
            physical limitations, these type of activities are severely 
 
            restricted as set forth above.  Claimant's medical condition 
 
            prevents him from fully performing all of his current work.  
 
            However, claimant was able to return to the same job without 
 
            loss of pay due to accommodations made by claimant's 
 
            employer for claimant's disability.  Claimant earns $13.23 
 
            per hour in his current job.  Claimant's work history con
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            sists of mostly manual labor work at Consolidated and one 
 
            other prior employer.  Claimant is severely limited in the 
 
            type of work he can perform in his current job as well as in 
 
            the jobs he has held in the past.  Claimant operated a 
 
            tavern for a few years but this was an unsuccessful venture.  
 
            Claimant is 58 years of age and nearing the end of his work
 
            ing life but certainly had no retirement plans before the 
 
            work injury.  Claimant only has a tenth grade formal educa
 
            tion but has earned his GED.  Claimant was a poor student 
 
            while in school and states that he has difficulty at the 
 
            present time spelling words correctly.
 
            
 
                 Claimant has failed to show that his current employment 
 
            is unstable.  Claimant testified that his employer is 
 
            approximately a week behind in paying wages.  No other evi
 
            dence was offered concerning the financial condition of 
 
            Consolidated.  The fact that claimant may have not received 
 
            one week of wages is insufficient evidence by itself upon 
 
            which to base a finding of instability.  Even if 
 
            Consolidated is having financial difficulties at the present 
 
            time, this would not necessarily translate into job insecu
 
            rity for claimant.  Defense witnesses testified that due to 
 
            claimant's high seniority in the plant, the entire plant 
 
            would have to shut down before claimant would be laid off.  
 
            Claimant forcefully argued in his brief that he should not 
 
            be frozen in any one job with any one employer.  The under
 
            signed deputy commissioner must respond that claimant is not 
 
            frozen in any job and no action of this agency will freeze 
 
            him in any job.  If he is compelled by his back pain to 
 
            leave his current employment or is laid off for reasons 
 
            unrelated to his injury, this agency is available to review 
 
            that matter at a later date.  However, at the current time, 
 
            he has suffered no greater loss of earning capacity than 
 
            what is found above.
 
            
 
                                conclusions of law
 
            
 
                  I.  Claimant has the burden of proving by a preponder
 
            ance 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 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 
 
            therein.
 
            
 
                 In the case sub judice, claimant's testimony as to the 
 
            work injury is uncontroverted and this deputy had little 
 
            choice but to make a finding of a work injury in May of 
 
            1987.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            shown that the work injury was a cause of a permanent physi
 
            cal 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 condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a three percent loss of his earning capacity as a 
 
            result of the work injury of May 1, 1987.  Based upon such a 
 
            factual finding, claimant is entitled as a matter of law to 
 
            15 weeks of permanent partial disability benefits under Iowa 
 
            Code section 85.34(2)(u) which is three percent of 500 
 
            weeks, the maximum allowable for an injury to the body as a 
 
            whole in that subsection.
 
            
 
                 It was further found that claimant had suffered an 
 
            additional 20 percent loss of his earning capacity as a 
 
            result of the work injury of June 7, 1988.  Based upon such 
 
            a finding, claimant is entitled as a matter of law to an 
 
            additional 100 weeks of permanent partial disability bene
 
            fits under Iowa Code section 85.34(2)(u).  If claimant for 
 
            some reason loses his employment during the three year 
 
            period following the payment of weekly benefits under this 
 
            award, he may return to this agency for a review-reopening 
 
            as the current finding of a loss of earning capacity is 
 
            based upon the continuation of claimant's current employment 
 
            and the continuation of the defendants' accommodation for 
 
            claimant's disability.
 
            
 
                 It should be noted that no date for commencing perma
 
            nent partial disability benefits was set forth in the pre
 
            hearing report.  However, according to the prehearing 
 
            report, there was an agreement that all temporary total dis
 
            ability or healing period benefits have been paid to 
 
            claimant.  Obviously, there is no dispute as to a commence
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            ment date for permanent partial disability.  Therefore, the 
 
            order will simply provide for payment of permanent partial 
 
            disability benefits without a date of commencement.  If this 
 
            is not satisfactory for the parties, the parties may request 
 
            for an enlarged order within the time this deputy has 
 
            jurisdiction - 20 days.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant fifteen (15) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            three hundred three and 30/l00 dollars ($303.30) per week as 
 
            a result of the work injury of May 1, 1987.
 
            
 
                 2.  Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred three and 30/l00 dollars ($303.30) per week 
 
            as a result of the work injury of June 7, 1988.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive a credit against this award for 
 
            all weekly benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fees paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Mr. Walter F. Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa  IA  52501
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed May 6, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EDWARD NYE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 888035 & 853265
 
            CONSOLIDATED PACKAGING CORP., :
 
                                          :      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.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of permanent disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY J. SIMOENS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 853380
 
            QUAKER OATS COMPANY,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRANSPORTATION INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Simoens against his employer, Quaker Oats Company, its 
 
            insurance company, Transportation Insurance Company, and the 
 
            Second Injury Fund of Iowa, based upon an injury that 
 
            occurred on May 22, 1987.  Claimant seeks compensation for 
 
            permanent disability.  The following are the primary issues 
 
            in the case:
 
            
 
                 1.  Whether claimant is entitled to additional weekly 
 
            compensation for permanent disability from defendants;
 
            
 
                 2.  Claimant's workers' compensation rate;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27;
 
            
 
                 4.  Whether claimant is entitled to reimbursement for 
 
            an independent medical examination under Iowa Code section 
 
            85.39, and the reasonableness of the costs incurred for this 
 
            examination.
 
            
 
                 The case was heard and fully submitted at Cedar Rapids, 
 
            Iowa on December 7, 1990.  The record consists of testimony 
 
            from Larry Simoens; Sandra Simoens; joint exhibits 1A 
 
            through 1F; employer's exhibits A and B; claimant's exhibits 
 
            2 through 8; and, Second Injury Fund's exhibits 1, 2, and 5.
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Having considered all of the evidence received, the 
 
            following findings of fact are made:
 
            
 
                 Larry Simoens is a 45-year-old man who is married and 
 
            has four dependents.  He graduated from high school in 1963, 
 
            and has not pursued further education.  Upon graduation from 
 
            high school, claimant worked on road construction, and then 
 
            worked primarily in the factory/labor field, for employers 
 
            such as Amana, Allis Chalmers, and FMC.
 
            
 
                 In 1973, claimant began to work for Quaker Oats 
 
            Company.  He has held many positions, including job duties 
 
            as a roll tender; shipping personnel; car sweeper; and chute 
 
            attendant.  Currently, claimant is a car strapper.
 
            
 
                 On May 22, 1987, claimant sustained a work-related         upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 As indicated earlier, claimant has sustained prior 
 
            losses to both ankles and one elbow.  These injuries 
 
            resulted in permanent impairment.  He sustained severe 
 
            burn-type injuries to both palms in an industrial accident 
 
            on May 22, 1987.  Claimant has undergone several skin grafts 
 
            to repair these injuries.  Presently, the scars on both 
 
            palms are visible, although at the hearing, claimant did not 
 
            appear to be in any pain or distress due to the injuries.
 
            
 
                 Claimant has been a laborer all of his life, and has 
 
            used and will continue to use his hands extensively in his 
 
            employment.  Although painful, claimant has had a successful 
 
            healing period. 
 
            
 
                 Claimant is on the declining end of his greatest 
 
            earning capacity years at age 45.  He is a high school 
 
            graduate, and it would probably be difficult to rehabilitate 
 
            him and completely retrain him to enter a different level of 
 
            employment at this stage of his career and life.
 
            
 
                 Claimant has proven to be motivated and an employee who 
 
            is dedicated to his employer, as shown by his return to work 
 
            and cooperation with the medical treatments.  He has 
 
            suffered little lost earning capacity.  It should be noted 
 
            that his prior impairments, which were rated as substantial 
 
            losses, were not shown to have affected claimant's ability 
 
            to attain and maintain employment.
 
            
 
                 After considering all of the factors, and evaluating 
 
            claimant, it is found that claimant has sustained a 15 
 
            percent industrial disability.
 
            
 
                 The Fund's liability is determined by using the 
 
            following formula:
 
            
 
                       75 weeks (industrial disability resulting 
 
                    from                  combined effects of all 
 
                    injuries)
 
            
 
                    - 112 weeks (impairment value of the prior 
 
                    losses:                    14% of 250 weeks; 5% 
 
                    of 220 weeks; 30%                    of 220 
 
                    weeks)
 
            
 
                    -  40 weeks (impairment value of the second 
 
                    injuries              for which defendant 
 
                    employer is                          
 
                    responsible)
 
            
 
                    ____________
 
            
 
                    -  77 weeks
 
            
 
                 Claimant takes nothing from the defendant Fund, as his 
 
            industrial disability is not great enough to warrant an 
 
            award of benefits.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 The only ratings the undersigned has to rely upon in 
 
            reaching the amounts to substract are Dr. Walker's ratings 
 
            to the upper and lower extremities.  Even if the undersigned 
 
            converted the ratings to the foot (as the ankle has been 
 
            deemed a part of the foot) the Fund pays nothing:
 
            
 
                       75 weeks (industrial disability resulting 
 
                    from                  combined effects of all 
 
                    injuries)
 
            
 
                    - 110 weeks (impairment value of the prior 
 
                    losses:                    14% of 250 weeks; 7% 
 
                    of 150 weeks; 43%                    of 150 
 
                    weeks)
 
            
 
                    -  40 weeks (impairment value of the second 
 
                    injuries              for which defendant 
 
                    employer is                          
 
                    responsible)
 
            
 
                    ____________
 
            
 
                    -  75 weeks
 
            
 
                 The next issue presented for resolution is whether 
 
            claimant is entitled to additional permanency benefits.
 
            
 
                 Under Iowa Code section 85.34(s), claimant is entitled 
 
            to benefits based on 500 weeks, as he sustained a loss of 
 
            use of two scheduled members in a single accident.
 
            
 
                 Dr. Hales was claimant's treating physician, and it was 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            he who performed all of the skin grafts.  Dr. Delbridge 
 
            rendered a second opinion for the defendant employer, and 
 
            Dr. Walker was chosen by claimant for an independent medical 
 
            examination under Iowa Code section 85.39.
 
            
 
                 Claimant, in his brief, has tried to argue that the 
 
            impairment ratings from Dr. Hale and Dr. Delbridge should be 
 
            combined, thereby giving claimant a ten percent functional 
 
            impairment to the whole body.  This is an inaccurate 
 
            presentation of medical evidence and an unpersuasive 
 
            argument.
 
            
 
                 As noted earlier, Dr. Hales rendered an eight percent 
 
            functional impairment to the body as a whole.  (Jt. Ex. 1B, 
 
            P. 14).  Dr. Delbridge also espoused an eight percent 
 
            functional impairment to the body as a whole.  (Jt. Ex. 1A, 
 
            P. 2).  Dr. Walker gave claimant a 21 percent functional 
 
            impairment to the body as a whole as it related to the hand 
 
            injuries.  (Jt. Ex. 1E, P. 7).
 
            
 
                 In this case, the undersigned finds claimant sustained 
 
            an eight percent permanent partial disability due to the May 
 
            22, 1987 accident at Quaker Oats.  In so finding, it is 
 
            noted that Dr. Hales was the treating physician, and 
 
            performed the skin grafts.  He followed claimant's course of 
 
            treatment and recovery from the time claimant was injured 
 
            until claimant returned to work.  And, Dr. Walker's 
 
            evaluation reveals that claimant had lost full extension of 
 
            the left wrist.  It would seem that Dr. Walker based part of 
 
            the impairment of the left hand to this lost range of 
 
            motion, a symptom not associated with the May 22, 1987 
 
            injury.  Therefore, Dr. Walker's evaluation is based on 
 
            additional limitations beyond the scope of claimant's 
 
            injuries that precipitate this litigation.  Therefore it is 
 
            found that claimant has sustained an eight percent 
 
            impairment to the body as a whole, and is entitled to 40 
 
            weeks of permanent partial disability payments.
 
            
 
                 The next issue to be addressed is claimant's workers' 
 
            compensation rate.
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.  Weekly earnings means gross salary, 
 
                 wages, or earnings of an employee to which such 
 
                 employee would have been entitled had the employee 
 
                 worked the customary hours for the full pay period 
 
                 in which the employee was injured, as regularly 
 
                 required by the employee's employer for the work 
 
                 or employment for which the employee was employed, 
 
                 computed or determined as follows and then rounded 
 
                 to the nearest dollar.
 
            
 
                    1.  In the case of an employee who is paid on a 
 
                 weekly pay period basis, the weekly gross 
 
                 earnings.
 
            
 
            (Iowa Code section 85.36 (1989).
 
            
 
                 It was established at hearing that claimant earned 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            $12.22 an hour, and worked a full-time schedule (40 hours 
 
            per week).  He frequently worked overtime.
 
            
 
                 Evidence presented shows that claimant's gross weekly 
 
            wages 13 weeks prior to the injury were $7035.96 (Claimant's 
 
            Ex. 7).  However, the wage information reveals that 
 
            claimant's wages include three "short" weeks, or weeks where 
 
            he did not earn his customary wages.
 
            
 
                 In accordance with Iowa Code section 85.36, it is held 
 
            that claimant's regular wages ($488.80 per week) are 
 
            substituted for each of the three irregular weeks.  
 
            Therefore, his gross weekly wages are $7,396.91.  
 
            Accordingly claimant's workers' compensation rate is 
 
            $352.22, based on his martial status and exemptions, which 
 
            were stipulated to at the hearing.
 
            
 
                 Another issue listed on the prehearing report is 
 
            whether claimant is entitled to medical benefits under Iowa 
 
            Code section 85.27.
 
            
 
                 Iowa Code section 85.27 states, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter...shall furnish reasonable 
 
                 surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 There can be no serious issue raised with respect to 
 
            claimant's entitlement to medical benefits.  He is awarded 
 
            payment of all bills incurred to treat these injuries.
 
            
 
                 The last issue to be addressed is the reasonableness of 
 
            Dr. Walker's independent medical examination.
 
            
 
                 Dr. Walker ordered certain x-rays to be taken, 
 
            including the following charges:
 
            
 
                 lumbar spine x-ray               $ 61.00
 
            
 
                 lumbar spine x-ray                 44.00
 
            
 
                                                  $105.00
 
            
 
                 He also charged $675.00 for an office visit and an 
 
            evaluation.  Dr. Delbridge charged $199.00 for his 
 
            impairment evaluation; Dr. Hales charged $148.00 for his 
 
            impairment evaluation.  (Employer Ex. B).
 
            
 
                 The charges for the lumbar spine x-rays are 
 
            automatically subtracted from the total costs; claimant's 
 
            back injury is the subject of a different workers' 
 
            compensation claim.
 
            
 
                 The undersigned finds Dr. Walker's fee unreasonable 
 
            when compared to the charges from the other physicians.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Defendant Quaker Oats shall pay one-third of the $675.00 
 
            examination fee, and $60.00 for the hand x-rays; defendant 
 
            Second Injury Fund shall pay one-third of the $675.00 
 
            examination fee; claimant pays the remaining amount, in 
 
            addition to the $105.00 for the lumbar spine x-rays.  The 
 
            remaining $104.00 charged for x-rays to the left and right 
 
            elbows are assessed against the defendants.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant's workers' compensation rate is three 
 
            hundred fifty-two and 22/100 dollars ($352.22) per week.
 
            
 
                 That claimant is entitled to forty (40) weeks of 
 
            permanent partial disability payments paid by the defendant 
 
            employer at the rate of three hundred fifty-two and 22/100 
 
            dollars ($352.22) per week.
 
            
 
                 That claimant is entitled to medical benefits pursuant 
 
            to Iowa Code section 85.27.
 
            
 
                 That claimant is entitled to partial payment of the 
 
            independent medical examination performed by Dr. Walker as 
 
            set out previously in this decision.
 
            
 
                 That defendant employer shall pay the accrued weekly 
 
            benefits in a lump sum, and credit against same.
 
            
 
                 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 rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Robert R Rush
 
            Attorney at Law
 
            526 2nd Ave SE
 
            PO Box 2457
 
            Cedar Rapids Iowa 52406
 
            
 
            Mr James M Peters
 
            Attorney at Law
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            1200 MNB Building
 
            Cedar Rapids Iowa 52401
 
            
 
            Ms Eleanor E Lynn
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines Iowa 50319
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      3200; 3202
 
                      Filed March 8, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY J. SIMOENS,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 853380
 
            QUAKER OATS COMPANY,     :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            TRANSPORTATION INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3200; 3202
 
            Claimant received injuries to both hands in one accident.  
 
            Two physicians (one treating) rated claimant's impairment as 
 
            8 percent body as a whole, which has accepted over Dr. 
 
            Walker's independent evaluation. 
 
            Claimant received 40 weeks of compensation, healing period 
 
            and medical benefits.
 
            Claimant had sustained two broken ankles and one broken 
 
            elbow in previous accidents.
 
            Dr. Walker was the only physician who rated these 
 
            impairments, and gave claimant a 14 percent impairment to 
 
            the upper extremity due to the elbow; 30 percent impairment 
 
            to the left lower extremity due to the broken ankle; and 5 
 
            percent to the right lower extremity due to the right broken 
 
            ankle.
 
            Claimant was evaluated as having a 15 percent industrial 
 
            disability due to all of the disabilities.  He was 48 years 
 
            old at the time of the hearing, and was still working for 
 
            the defendant employer.  Claimant was working at a different 
 
            job, but he had bid on the job to be on a different shift, 
 
            not because of the injuries and lack of ability to perform 
 
            his prior job.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant's prior losses had not precluded him from attaining 
 
            and maintaining any type of employment.
 
            The following formula was used to determine the Second 
 
            Injury Fund's liability:
 
                   industrial disability from all impairments
 
                 - preexisting disabilities
 
                 - amount of disability for which defendant                  
 
            employer was responsible
 
                  
 
                 = amount of weeks for which the Fund is responsible.
 
            In this case, the formula looked like this:
 
              75 weeks
 
            -112 weeks
 
            - 40 weeks
 
            - 77 weeks
 
            Although the Fund was properly brought into the suit, it 
 
            will not pay any benefits due to the low amount of 
 
            industrial disability and the high impairment from Dr. 
 
            Walker.
 
            It should be noted that Dr. Walker used impairment to the 
 
            lower extremities to rate the ankles.  The agency has ruled 
 
            the ankle as part of the foot, and a second formula using 
 
            conversion impairments to the foot still resulted in a 
 
            finding that the Fund would not pay any benefits to the 
 
            claimant.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBIN D. BOHL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File Nos. 769025
 
            ARMOUR FOOD COMPANY,          :                   853390
 
                                          :
 
                 Employer,                :      A R B I T R A T I O N
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            TRAVELERS INSURANCE COMPANY   :
 
            and THE HARTFORD,             :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 The above captioned matters were consolidated by an 
 
            Order filed January 30, 1990.
 
            
 
                 File number 853390 is a proceeding in arbitration upon 
 
            claimant's petition filed April 13, 1989.  Claimant alleged 
 
            a cumulative injury of May 11, 1987 to his right arm 
 
            sustained during the course of his employment as a loading 
 
            dock worker for defendant employer Armour Food Company 
 
            (Con-Agra).  He sought benefits under the Iowa Workers' 
 
            Compensation Act from that employer and its then insurance 
 
            carrier, Hartford Insurance Company, but then entered into 
 
            an agreement for settlement with Armour and Hartford prior 
 
            to hearing, and approved by this agency on October 4, 1989.  
 
            Those parties agreed to an intermittent healing period (May 
 
            12 through August 2, 1987 and January 12 through March 17, 
 
            1988) and that claimant had sustained a permanent partial 
 
            impairment of eight percent of the right arm.  However, 
 
            claimant still seeks relief from the Second Injury Fund of 
 
            Iowa.
 
            
 
                 File number 769025 is a proceeding in arbitration upon 
 
            claimant's petition filed May 9, 1989.  Claimant allegedly 
 
            sustained an injury to his right arm and shoulder through a 
 
            traumatic incident while moving pallets on March 16, 1984, 
 
            and sought benefits from Armour and its then insurance 
 
            carrier, The Travelers Insurance Company.  However, after 
 
            trial of the cause, claimant, Armour and The Travelers 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entered into an agreement for settlement approved by this 
 
            office on August 2, 1990.  Those parties agreed that 
 
            claimant was entitled to healing period benefits from July 9 
 
            through August 13, 1984 and that he had sustained an 
 
            "industrial" disability equivalent to five percent of the 
 
            right arm (but compensated as a scheduled member 
 
            disability).  Claimant continues to seek benefits from the 
 
            Second Injury Fund of Iowa.
 
            
 
                 Hearing on the arbitration petitions was had in Mason 
 
            City, Iowa, on April 30, 1990.  The record consists of 
 
            claimant's exhibits 1 through 20, 22, 24 through 26 and 28, 
 
            Second Injury Fund exhibit 1, and the testimony of claimant 
 
            and his wife, Sara Bohl.  In addition, official notice was 
 
            taken of the agreement for settlement in file number 853390.
 
            
 
                                      issues
 
            
 
                 As has been seen, claimant now seeks relief in both 
 
            files only from defendant Second Injury Fund of Iowa.  
 
            Pursuant to the prehearing report in file number 853390, 
 
            claimant and Second Injury Fund of Iowa have stipulated:  
 
            that an employment relationship existed between claimant and 
 
            employer at the time of the alleged injury; that if claimant 
 
            sustained permanent disability, it is a scheduled member 
 
            disability to the right upper extremity; that the 
 
            appropriate rate of weekly benefits is $201.69.
 
            
 
                 In case number 853390, the following issues are 
 
            presented for resolution:  whether claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            May 11, 1987; whether the injury caused permanent 
 
            disability; the extent of permanent disability, if any; 
 
            whether the claim is barred by limitations under Iowa Code 
 
            section 85.26; taxation of costs.
 
            
 
                 In file number 769025, the parties have stipulated:  to 
 
            the existence of an employment relationship; that if the 
 
            injury caused permanent disability, it is a scheduled member 
 
            disability to the right arm; that the proper rate of 
 
            compensation is $193.29.
 
            
 
                 Issues presented for resolution in file number 769025 
 
            include:  whether claimant sustained an injury arising out 
 
            of and in the course of his employment on March 16, 1984; 
 
            whether the injury caused permanent disability; whether the 
 
            claim is barred by limitations; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 38, is a 1970 high school graduate.  In 
 
            addition, he completed a 12-month course at a community 
 
            college and has been certified in building trades as a 
 
            carpenter.
 
            
 
                 Claimant's employment history includes work as a cook 
 
            for several years, work in an asphalt plant for a few weeks, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            finish work for a trailer manufacturer, duties as a mechanic 
 
            (fuel and electrical systems repair) during service with the 
 
            United States Army, forklift driver and monorail operator, 
 
            cement finishing and carpentry, carpentry for a low income 
 
            housing agency and employment with Armour Food (subsequently 
 
            purchased by Con-Agra) as a forklift driver starting in 
 
            December, 1983 and continuing until he quit that work on 
 
            October 26, 1988.
 
            
 
                 On April 11, 1979, claimant underwent a left medial 
 
            meniscectomy based on pre- and post-operative diagnoses of a 
 
            bucket handle tear of the medial meniscus of the left knee.  
 
            This is the alleged "first injury" for Second Injury Fund 
 
            purposes.  An evaluating physician, John R. Walker, M.D., 
 
            wrote on March 31, 1989 that claimant had residuals or 
 
            probable very early, post-traumatic arthritis of the left 
 
            knee resulting from an earlier injury and excision of the 
 
            medial meniscus.  Dr. Walker opined that claimant had 
 
            sustained a ten percent permanent impairment of the left 
 
            leg.
 
            
 
                 Robert E. McCoy, M.D., who treated claimant for the arm 
 
            injuries that are the subject matter of this litigation, 
 
            reported on June 16, 1989 that claimant had a good result 
 
            from his medial meniscectomy and rated impairment at five 
 
            percent of the left lower extremity.  Dr. McCoy expected a 
 
            good prognosis as claimant had no evidence of degenerative 
 
            arthritis ten years after the procedure and claimant 
 
            reported that he could walk any distance without difficulty, 
 
            but that the knee felt weak on running and that he 
 
            occasionally had very mild, nonpainful catch over the medial 
 
            joint line when off balance while weight bearing on the 
 
            knee.  Claimant reported no swelling, catching, locking, 
 
            clicking or giving way of the knee.  However, he reported 
 
            leaving his work as a cement finisher due to aching in the 
 
            knee and inability to kneel or squat following surgery.
 
            
 
                 Claimant testified that his knee occasionally locks and 
 
            sometimes aches in cold or damp weather, but that "I can 
 
            walk and function alright."  He agreed that his knee has not 
 
            affected his employment status since at least 1981.
 
            
 
                 On March 16, 1984, claimant was engaged in transferring 
 
            wooden pallets from one roller to another over a two-foot 
 
            gap.  The bottom board of one pallet jammed, causing a 
 
            jerking injury to claimant's right arm.
 
            
 
                 Claimant was first seen by his family physician, James 
 
            K. Coddington, M.D.  Dr. Coddington's chart notes of March 
 
            20, 1984 indicate that claimant believed he had pulled a 
 
            muscle pulling a pallet.  Dr. Coddington's initial 
 
            assessment was of possible pinched nerve in the neck.
 
            
 
                 Dr. Coddington eventually referred claimant to R. L. 
 
            Emerson, M.D., who reported on June 26, 1984 an impression 
 
            of probable carpal tunnel and perhaps concurrent thoracic 
 
            outlet syndromes on the right.  Electromyographic testing 
 
            revealed borderline motor nerve conduction velocities and 
 
            prolonged sensory nerve conduction velocity across the wrist 
 
            of the right median nerve indicating mild right carpal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            tunnel syndrome.  The ulnar nerve indicated mild compression 
 
            of Guyon's canal.  On July 9, 1984, Dr. Emerson performed a 
 
            carpal tunnel release, Guyon's canal release and an anterior 
 
            transposition of the ulnar nerve upon a post-operative 
 
            diagnosis of carpal tunnel syndrome and hypermobility of the 
 
            ulnar nerve at the elbow.  Dr. Emerson's chart notes of July 
 
            17, 1984 reflect that both elbow and wrist symptoms were 
 
            definitely aggravated by claimant's work.  Claimant was 
 
            released to return to work without restriction on August 13, 
 
            1984.
 
            
 
                 Defendants Armour Food and Travelers Insurance 
 
            voluntarily paid weekly benefits, the last payment being 
 
            made on August 15, 1984.  The petition in this matter was 
 
            filed almost five years later on May 9, 1989.
 
            
 
                 On March 20, 1987, claimant returned to Dr. Coddington 
 
            complaining of persistent left elbow discomfort and numbness 
 
            in the fourth and fifth fingers, and indicating that pain 
 
            had become worse during the past two months.  From the chart 
 
            notes, it appears that claimant was seen by Dr. Coddington's 
 
            associate, Samuel R. Hunt, M.D.
 
            
 
                 Claimant was referred back to Dr. Emerson.  His chart 
 
            notes of April 24, 1987 indicate that claimant had not had 
 
            carpal tunnel symptoms since surgery, but for the past two 
 
            months had gradually increasing symptoms of numbness in the 
 
            right hand over the ulnar two fingers and an increasingly 
 
            weakened grip.  Dr. Emerson's impression was that the ulnar 
 
            nerve had shifted position from the initial post-operative 
 
            position and he recommended another repositioning.
 
            
 
                 On May 11, 1987, Dr. Emerson gave claimant a "work 
 
            release," apparently meaning that he was taken off work.  
 
            The petition in file number 853390 was filed on April 13, 
 
            1989.  Weekly benefits were paid by Armour Food and Hartford 
 
            Insurance Company, the last payment being made on March 24, 
 
            1988.
 
            
 
                 Claimant thereafter underwent further surgery on May 
 
            27, 1987, a repositioning of the right ulnar nerve following 
 
            diagnosis of ulnar nerve paresthesias secondary to recurrent 
 
            minor ulnar nerve trauma.  Unfortunately, although claimant 
 
            experienced some relief shortly after surgery, he continued 
 
            to experience problems with his right arm.  He was released 
 
            to return to work effective August 3, 1987, apparently 
 
            without restrictions.  On October 9, 1987, the treating 
 
            physician, Dr. McCoy, noted that claimant had made a good 
 
            though incomplete recovery.  Dr. McCoy assessed claimant as 
 
            having sustained a five percent impairment of the upper 
 
            extremity and dismissed him from care.
 
            
 
                 However, claimant returned on January 18, 1988 
 
            complaining of increasing pain.  Dr. McCoy contemplated 
 
            performing a third ulnar nerve surgery, but this has never 
 
            been done (of course, there is at this point great risk of 
 
            complications and possible failed surgery).  Claimant was 
 
            thereafter off work from January 12 through March 17, 1988.
 
            
 
                 Dr. McCoy's chart notes of January 29, 1988 reflect 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            that he advised against further surgery, but that "it would 
 
            be best simply to acknowledge that he can't do work heavy 
 
            enough to cause ulnar nerve pain and seek retraining for 
 
            another kind of work."  Chart notes of February 16, 1988 
 
            reflect Dr. McCoy's view that claimant should be retrained 
 
            for some sort of job that would not require forceful use of 
 
            the right upper extremity.
 
            
 
                 Dr. McCoy's chart notes of December 6, 1988 reflect 
 
            that claimant had improved somewhat since February, but that 
 
            it was "entirely possible" that he cannot tolerate heavy 
 
            forceful use of the right forearm and that heavy use of the 
 
            flexor muscles in the forearm might cause paresthesias and 
 
            discomfort in the ulnar nerve distribution.
 
            
 
                 Dr. McCoy saw claimant for reevaluation on June 6, 
 
            1989.  Claimant continued to complain of considerable 
 
            symptomatic difficulty.  McCoy noted his view that 
 
            claimant's increased symptoms of tenderness in 1987 "seemed 
 
            to be directly related to lifting activities on the loading 
 
            dock at Armour.  It was my feeling that he could not 
 
            tolerate repetitious or heavy lifting with his right upper 
 
            extremity or bumping objects with the medial aspect of his 
 
            elbow."  Upon examination, claimant showed normal sensation 
 
            to touch and pinprick over the entire right hand and forearm 
 
            with no apparent motor weakness of grip or abduction of the 
 
            fingers and thumb.  However, grip strength was consistently 
 
            measured as less on the dominant right side; Dr. McCoy felt 
 
            that claimant showed no element of exaggeration and was 
 
            cooperative.  He further believed claimant to be inhibited 
 
            in the full use of the right upper extremity by residual 
 
            right elbow problems and rated permanent partial impairment 
 
            of function as eight percent of the right upper extremity.
 
            
 
                 Claimant walked off his job with Armour Food on October 
 
            26, 1988.  He alleged that his superintendent had repeatedly 
 
            broken promises not to require him to lift heavy boxes.  
 
            Claimant sought job insurance benefits, but was found in a 
 
            contested case proceeding to have left his work without good 
 
            cause attributable to his employer because he did not leave 
 
            upon the advice of a licensed and practicing physician and 
 
            did not provide the employer with a reason for quitting.
 
            
 
                 Claimant was seen for evaluation on March 9, 1988 by 
 
            Peter D. Wirtz, M.D.  Dr. Wirtz found that claimant had 
 
            tenderness to pressure in the musculature and bony 
 
            structures of the elbow, that sensory examination revealed 
 
            decreased feeling over the hypothenar eminence in the fifth 
 
            finger on the right hand and that claimant had inability to 
 
            extend his fingers without any pressure as well as 
 
            interosseous function.  However, he concluded that claimant 
 
            had no neurological condition for restriction of strength or 
 
            any loss of motion that was functional as an impairment.  
 
            Claimant was felt to be capable of activities within his 
 
            physiologic strength and dexterity and there was no 
 
            orthopaedic condition that would limit his work 
 
            capabilities.  Dr. Wirtz suggested no restrictions and 
 
            recommended no further care.
 
            
 
                 Dr. Walker, on the other hand, was of a completely 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            different view.  In addition to finding a painful, chronic 
 
            sprain of the right shoulder with an adduction contracture 
 
            (Dr. McCoy did not believe claimant had residuals from a 
 
            remote shoulder separation) and residuals of the carpal 
 
            tunnel release, he found claimant to have residual, painful 
 
            neuritis involving the ulnar nerve throughout its entire 
 
            length and marked deformity of the osteotomized medial 
 
            condyle of the right elbow.  He concluded that claimant had 
 
            a severe, post-traumatic neuritis of the ulnar nerve and 
 
            should undergo further surgery, possibly including another 
 
            repositioning of the ulnar nerve anteriorly.  He concluded 
 
            that claimant had sustained a permanent partial impairment 
 
            of the right upper extremity of 35 percent.  On May 30, 
 
            1989, Dr. Walker wrote a letter of clarification indicating 
 
            that claimant was much worse since his 1987 cumulative 
 
            injury and ultimate second surgery, that the 1984 problem 
 
            would comprise 30 percent of his impairment and that the 
 
            1987 cumulative problem and surgery would comprise 70 
 
            percent of that impairment.  He noted that claimant 
 
            complained of a shaking type of arm and elbow with gripping 
 
            on the right and of constant muscle spasms.
 
            
 
                 After leaving work with Armour Food Company, claimant 
 
            sought employment at numerous businesses, primarily seeking 
 
            sales, labor or maintenance positions.  He eventually took a 
 
            part-time position as a mail room inserter for a newspaper 
 
            company (inserting ads into the paper) and was employed for 
 
            about three months from May to August, 1989.  He left that 
 
            work to accept a position with the Principal Financial Group 
 
            as a micrographics clerk.  He began on a part-time basis in 
 
            July, 1989 (working two part-time jobs at that point) and 
 
            began working on a full-time basis August 16, 1989.  He 
 
            earns a monthly salary of $930.00.
 
            
 
                 During 1986, the last complete calendar year during 
 
            which claimant worked for Armour Food Company, he earned 
 
            $18,236.40.  He earned $14,494.03 during 1987 and $12,444.08 
 
            in 1988.  During calendar year 1989, claimant earned a total 
 
            of $5,923.34 from the newspaper company and Principal Mutual 
 
            Life Insurance Company.
 
            
 
                 Claimant underwent extensive vocational rehabilitation 
 
            testing with the Iowa State Division of Vocational 
 
            Rehabilitation Services.  He was found to be of average 
 
            intelligence and showed many aptitudes, including good 
 
            attention to detail, clerical skills, sorting and 
 
            discrimination skills and dexterity with and without tools.  
 
            Suggested areas of exploration included work awareness, 
 
            academic preparation, business and office, industrial skills 
 
            and building maintenance.  Claimant was seen as rather 
 
            unfriendly and a "loner," behavioral patterns that could 
 
            interfere with job placement if recurrent.
 
            
 
                 Claimant is an alcoholic and underwent a month-long 
 
            residential treatment program in early 1988.  However, his 
 
            alcoholism does not appear to have been a continuing problem 
 
            since treatment.
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Pursuant to Iowa Code section 85.64, Second Injury Fund 
 
            benefits are payable when an employee who has previously 
 
            lost or lost the use of one hand, arm, foot, eye or leg 
 
            becomes permanently disabled by a compensable injury which 
 
            has resulted in the loss or loss of use of another such 
 
            member or organ.
 
            
 
                 The loss of the use of a member under the statute need 
 
            not be a total loss.  Irish v. McCreary Saw Mill, 175 N.W.2d 
 
            364 (Iowa 1970).  The prior injury need not be work related.  
 
            Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989).
 
            
 
                 The alleged prior loss in this case is to the left leg, 
 
            upon which claimant underwent knee surgery in 1979.  The 
 
            "loss" of this member is minimal, although claimant may have 
 
            trouble with squatting and crawling, required in some of the 
 
            work he did as a carpenter.  However, the evidence is 
 
            undisputed that he has sustained a functional impairment to 
 
            the left leg.  Drs. McCoy and Walker have so opined, and 
 
            this expert opinion stands unrebutted.  Dr. McCoy is of the 
 
            view that claimant has sustained a five percent impairment 
 
            to the left leg, while Dr. Walker believes there is ten 
 
            percent impairment.  In a situation where two physicians 
 
            give similar but different impairment ratings, barring 
 
            inadequacy in the history given, inequality of 
 
            qualifications or insufficiency of physical examination, it 
 
            is reasonable to take the average of those impairment 
 
            ratings.  Caylor v. Lucas County, II Iowa Industrial 
 
            Commissioner Report 73 (1982).  It is held that claimant had 
 
            a prior loss of the left leg equivalent to 7.5 percent.
 
            
 
                 Claimant alleges two separate "second" injuries, one in 
 
            1984 and one in 1987, both to the right arm.  The Second 
 
            Injury Fund of Iowa disputes whether either injury arose out 
 
            of and in the course of employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury or injuries 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 128 
 
            (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Community 
 
            School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. 
 
            Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); 
 
            Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury or injuries 
 
            are causally related to the disability on which he now bases 
 
            his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 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 1984 injury arose at least in part from a traumatic 
 
            incident as claimant credibly described.  While the carpal 
 
            tunnel syndrome apparently preceded the incident and is 
 
            commonly a repetitive motion or cumulative type of injury, 
 
            it was certainly aggravated or lighted up by the traumatic 
 
            incident, as is also the case with the ulnar nerve problems 
 
            affecting the arm.  Claimant promptly sought medical 
 
            attention and was surgically treated.  Claimant was in the 
 
            course of his normal duties when the traumatic incident 
 
            occurred.  He has established an injury arising out of and 
 
            in the course of his employment that caused the necessity 
 
            for surgical treatment.
 
            
 
                 Pursuant to Iowa Code section 85.26(1), an original 
 
            proceeding for benefits under Chapter 85 shall not be 
 
            maintained in any contested case unless the proceeding is 
 
            commenced within two years from the date of the occurrence 
 
            of the injury or, where weekly compensation benefits are 
 
            paid, within three years from the date of the last payment.  
 
            There currently exists a dearth of authority as to whether 
 
            the statute of limitations provided by section 85.26 applies 
 
            to claims against the Second Injury Fund.  However, it 
 
            appears to this observer that in the absence of some 
 
            specific exclusion for Second Injury Fund claims, claimant 
 
            has presented "[a]n original proceeding for benefits under 
 
            this chapter" in a contested case proceeding.  It is held 
 
            that section 85.26 applies to Second Injury Fund claims.  In 
 
            file number 769025, the injury date is March 16, 1984 and 
 
            weekly benefits were last paid on August 15, 1984.  This 
 
            case was commenced by the filing of a petition on May 9, 
 
            1989, far beyond the three-year limitations where benefits 
 
            have been paid.  Accordingly, the Second Injury Fund must 
 
            prevail with respect to the 1984 injury on the basis of the 
 
            limitations defense.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 The claimed 1987 injury might reasonably be considered 
 
            either a sequela of the 1984 injury, or a separate and 
 
            independent injury as alleged.  However, the better evidence 
 
            is that it was actually a second and independent injury, 
 
            although to the same member.  Dr. Walker in particular has 
 
            pointed to the cumulative nature of this problem.  
 
            Claimant's testimony establishes that his condition 
 
            progressively worsened following the 1984 surgery, 
 
            especially in the two months prior to May, 1987.  Dr. McCoy 
 
            and Dr. Walker have each indicated that the condition is 
 
            causally related to claimant's work on the loading dock for 
 
            Armour Food Company.  Contrary evidence does not exist 
 
            (although Dr. Wirtz sees no orthopaedic problem whatsoever).  
 
            In cases of cumulative injury, the injury date is deemed to 
 
            be when claimant, due to pain or physical inability, is no 
 
            longer able to work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).  Claimant was taken off work on May 
 
            11, 1987.  It is held that he has established an aggravation 
 
            of his preexisting condition through cumulative trauma 
 
            effective May 11, 1987.  The mere fact that the preexisting 
 
            condition was also related to employment does not indicate 
 
            that the second injury did not arise out of and in the 
 
            course of claimant's work.  As the petition in file number 
 
            853390 was filed on April 13, 1989, within two years from 
 
            the date of injury, the limitations defense must fail as to 
 
            that cause.
 
            
 
                 Since claimant has established a prior and a "second" 
 
            injury to separate scheduled members as set forth in section 
 
            85.64, he has shown entitlement to Second Injury Fund 
 
            benefits to the extent he has industrial disability.  The 
 
            Iowa Supreme Court has held that where the second injury is 
 
            to a scheduled member and not to the body as a whole, and 
 
            where both injuries together cause industrial disability, 
 
            the Second Injury Fund is liable for the total of industrial 
 
            disability minus the combined total of the scheduled member 
 
            impairments.  Second Injury Fund v. Neelans, 436 N.W.2d 355 
 
            (Iowa 1989).
 
            
 
                 What then is the credit to which Second Injury Fund is 
 
            entitled?  Although claimant is barred by limitations from 
 
            establishing liability by reason of the 1984 injury, the 
 
            Second Injury Fund is nonetheless entitled to "credit" for 
 
            all prior losses for Second Injury Fund purposes.  Shank v. 
 
            Mercy Hosp. Medical Center., file number 719627 (App. Decn., 
 
            August 28, 1989).  Accordingly, Second Injury Fund is 
 
            entitled to credit for the entire functional impairment of 
 
            the right arm without apportionment between the 1984 and 
 
            1987 injuries.
 
            
 
                 There is a substantial conflict in the medical evidence 
 
            as to the extent of claimant's functional impairment to the 
 
            right arm.  On an orthopaedic basis, Dr. Wirtz sees no 
 
            impairment whatsoever and has recommended no restrictions.  
 
            Of course, claimant's problem appears to be neurological 
 
            (relating to the ulnar nerve) as opposed to orthopaedic.  
 
            While claimant may demonstrate full range of motion, 
 
            commonly the sole or primary factor by which orthopaedic 
 
            surgeons assess impairment, his symptomatology is severe and 
 
            neurological in origin.  Dr. Wirtz's opinion is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            unpersuasive.  Dr. McCoy originally assessed claimant's 
 
            right arm impairment at five percent, but increased that to 
 
            eight percent as of June 16, 1989.  Dr. Walker assesses a 35 
 
            percent impairment of the right upper extremity.  To this 
 
            observer, the 35 percent impairment rating assessed by Dr. 
 
            Walker is more in line with claimant's severe 
 
            symptomatology.  It is held that claimant sustained a 35 
 
            percent impairment to his right arm from the 1984 and 1987 
 
            work injuries.
 
            
 
                 Pursuant to Iowa Code section 85.34(2)(o), the loss of 
 
            a leg is compensable during 220 weeks.  Seven point five 
 
            percent of 220 weeks is 16.5 weeks.  Under 85.34(2)(m), the 
 
            loss of an arm is compensable during 250 weeks.  Thirty-five 
 
            percent of 250 weeks is 87.5 weeks.  Accordingly, the Second 
 
            Injury Fund is entitled to deduct 104 weeks from any 
 
            assessed industrial disability to determine its liability in 
 
            this matter.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 The various factors making up industrial disability 
 
            should be weighted or considered differently in cases where 
 
            only the Second Injury Fund remains as a party defendant.  
 
            For example, failure of an employer to provide continued 
 
            work to claimant or to provide for vocational rehabilitation 
 
            may operate to increase industrial disability.  Obviously, 
 
            this is intended to provide an incentive for employers and 
 
            insurance carriers to provide continued work or at least 
 
            retraining.  Yet, it seems unfair that the Second Injury 
 
            Fund should be penalized by such decisions that are 
 
            completely outside its control.  It does not appear to this 
 
            observer that claimant had any industrial disability 
 
            resulting from the 1984 arm injury.  He had no medical 
 
            restrictions and continued in his same employment for three 
 
            years thereafter, continuing even beyond the 1987 surgery.  
 
            Following the 1987 surgery, claimant found it painful to 
 
            lift and he now complains of continued pain and numbness, 
 
            along with an inability to participate in certain 
 
            recreational activities, or to lift beyond 20 pounds 
 
            comfortably.  Dr. McCoy advised that claimant discontinue 
 
            heavy lifting or forceful use of the right forearm in his 
 
            work.  It seems clear that claimant will be disabled from 
 
            many of the career choices he has previously elected, in 
 
            particular his training and certification as a carpenter.  
 
            Claimant has suffered a clear diminution both in his 
 
            earnings and in his earning capacity since the 1987 surgery.  
 
            On the other hand, he is of at least average intelligence 
 
            and has many aptitudes.  Claimant is clearly a suitable 
 
            candidate for retraining.  Although industrial disability 
 
            attributable to the 1979 leg injury is minimal, claimant has 
 
            suffered substantial industrial disability from his 1987 arm 
 
            injury.
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained an 
 
            industrial disability equivalent to 30 percent of the body 
 
            as a whole, or 150 weeks.  All of this is attributable to 
 
            the 1987 injury.  As the Second Injury Fund is entitled to 
 
            "credit" of 104 weeks, liability of the Second Injury Fund 
 
            is assessed at 46 weeks.
 
            
 
                 The agreement for settlement in case number 853390 
 
            called for a healing period ending March 17, 1988 and 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            provided for 20 weeks of permanent partial disability 
 
            benefits thereafter.  Therefore, the commencement date for 
 
            Second Injury Fund benefits is August 5, 1988.  Accordingly, 
 
            all benefits have accrued.  However, interest shall accrue 
 
            only from the date of this decision.  Second Injury Fund of 
 
            Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 769025, claimant shall take nothing.
 
            
 
                 In file number 853390, defendant Second Injury Fund of 
 
            Iowa shall pay unto claimant forty-six (46) weeks of Second 
 
            Injury Fund benefits at the stipulated rate of two hundred 
 
            one and 69/100 dollars ($201.69) per week commencing August 
 
            5, 1988 and totalling nine thousand two hundred 
 
            seventy-seven and 74/100 dollars ($9,277.74).
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum.  Interest shall accrue from the filing date of 
 
            this decision.
 
            
 
                 The costs of this action shall be assessed to defendant 
 
            Second Injury Fund of Iowa pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant Second Injury Fund of Iowa shall file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert S. Kinsey III
 
            Attorney at Law
 
            214 North Adams
 
            P.O. Box 679
 
            Mason City, Iowa  50401
 
            
 
            Mr. Mark A. Wilson
 
            Attorney at Law
 
            30 Fourth Street NW
 
            P.O. Box 1953
 
            Mason City, Iowa  50401
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           July 24, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL J. HOHENFIELD,        :
 
                                          :    File Nos. 853502, 894171,
 
                 Claimant,                :     931341, 931342, 931343,
 
                                          :     931344, 931345 & 931346
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            SNAP-ON TOOLS CORP.,          :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE CO.,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant was awarded a 40 percent permanent partial 
 
            disability due to a bilateral shoulder injury.  Claimant was 
 
            severely restricted to lifting 25 pounds or less and to 
 
            working within an imaginary square between the waist and the 
 
            shoulders.  Claimant was terminated from his position.  He 
 
            returned to college and completed his bachelor's degree in 
 
            human services.  At the time of the hearing, claimant had a 
 
            position as a part-time security guard for $4.25 per hour.  
 
            Claimant had no full time job prospects in his field.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CLYDE LEROY GILLESPIE,
 
         
 
              Claimant,
 
                                                  File No. 853613
 
         vs.
 
         
 
         STANDARD CHEMICAL MFG. CO.,           A R B I T R A T I O N
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants,
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Clyde LeRoy 
 
         Gillespie, claimant, against Standard Chemical Manufacturing 
 
         Company, employer, and Travelers Insurance Company, insurance 
 
         carrier, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result personal injuries claimant sustained on January 
 
         22, 1986 which arose out of and in the course of his employment. 
 
          This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner September 13, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant and 
 
         April Gillespie, his wife; and joint exhibits 1 through 28, 
 
         inclusive.  For reasons evident in the record, exhibit 29 was not 
 
         admitted into evidence and was not considered in making this 
 
         decision.
 
         
 
                                      ISSUE
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved September 13, 1988, the sole issue presented for 
 
         resolution is the extent of claimant's permanent partial 
 
         disability stipulated to be an industrial disability to the body 
 
         as a whole.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on January 22, 1986 when, while reaching 
 
         to open the doors on a truck, he slipped and became entangled in 
 
         an auger sustaining crush injuries to his feet, right worse than 
 
         left.  Claimant testified he was hospitalized for four days 
 
         thereafter and subsequently treated with bed rest and physical 
 
         therapy.  Claimant explained he attempted to return to work in 
 
         the spring of 1986 but, after two days of work, found the pain 
 
         and swelling in his foot unbearable and, after seeing his doctor, 
 
         was advised he could work only on "sit duty."  Defendant employer 
 
         had no such work available and the plant manager therefore 
 
         advised claimant to remain at home.
 
         
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   2
 
         
 
              Claimant testified he was hospitalized again in May 1986 
 
         for "nerve blocks" and underwent a right lumbar sympathetic 
 
         block in June 1986.  Claimant stated that although the 
 
         operation eased his symptoms of pain and swelling somewhat he 
 
         continues to experience pain when he is on his feet for four or 
 
         more hours at a time.  In addition, claimant stated he 
 
         continues to use a TNS unit, and has orthotics for his special 
 
         orthopedic shoes and uses a brace on his right leg.  Claimant 
 
         testified he was not able to return to work with Standard 
 
         Chemical where he bagged and loaded feed as a laborer because 
 
         it would be too painful to stand on his feet for eight hours a 
 
         day and because he would not be able to fulfill the lifting 
 
         requirements of that job.
 
         
 
              Claimant considered his regular employment to be with 
 
         Union Carbide/Eveready Battery/Ralston Purina.  Claimant 
 
         testified he began working there in 1979 first as a supplier, 
 
         then as a cam operator and last as a crimper operator which 
 
         involved putting sockets on nine volt transistor radio 
 
         batteries and lifting approximately 35 pounds.  Claimant was 
 
         first laid off from this employment in June 1980 and was 
 
         recalled to work in April 1981.  Claimant testified he did not 
 
         work during this first period of layoff but returned to work 
 
         when recalled until he was laid off again in February 1983.  
 
         During this layoff, specifically in January 1984, claimant went 
 
         to work at Crestline, a manufacturer of plastic pipe where he 
 
         worked on an assembly line catching and stacking pipe weighing 
 
         between 75 to 85 pounds.  Claimant explained he returned to 
 
         work for Union Carbide/Eveready Battery/Ralston Purina when 
 
         recalled in June 1984 and worked steadily until laid off again 
 
         in March 1985.  It was during this period of layoff that 
 
         claimant worked for defendant employer from August 1985 until 
 
         the date of his injury and earned $7.25 per hour.  Claimant 
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   3
 
         
 
         returned to work for Union Carbide/Eveready Battery/Ralston 
 
         Purina in March 1988 when he was recalled.  Claimant originally 
 
         returned to that employer as a crimper operator at a rate of 
 
         pay of $9.97 per hour but explained that he found himself 
 
         unable to stand all day and do the lifting required.  Claimant 
 
         testified he requested a different job and was reassigned to a 
 
         position in zinc chloride recovery which allows him to be 
 
         seated approximately one-half of his working day and which 
 
         requires that he lift no more than 15 pounds approximately six 
 
         times per week.  Claimant testified he is currently earning 
 
         $8.62 per hour.  Claimant stated he is an employee in good 
 
         standing with his present employer although there are 300 
 
         employees with more seniority and he is unsure as to the 
 
         security of his job in light of the company's past history of 
 
         layoffs.  Claimant testified that since his injury he has 
 
         acquired his GED and has attended some classes in civil 
 
         engineering at Iowa Western Community College under the 
 
         direction of and with the assistance of the State Vocational 
 
         Rehabilitation Services and the Job Training Partnership Act 
 
         (JTPA).
 
         
 
              Claimant testified he continues to experience pain and 
 
         swelling in his leg and still has discoloration on the right 
 
         side of his ankle as though his "leg is staying bruised."  
 
         Claimant described his pain as constant although it becomes 
 
         significantly worse if he must stand on it for "hours."
 
         
 
              April Gillespie testified claimant was in good health 
 
         prior to his injury, did not miss "a lot of work," usually one 
 
         or two days a year at most, and had no difficulties with his 
 
         feet or legs.  Mrs. Gillespie explained claimant's injury has 
 
         caused financial hardships for the family although she 
 
         acknowledged defendant insurance carrier has been cooperative 
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   4
 
         
 
         and courteous in their dealings.
 
         
 
              Medical records show claimant was admitted to Jennie 
 
         Edmundson Hospital on January 22, 1986 and noted to have "at 
 
         least 2+ swelling of the right foot with some complaints of 
 
         numbness and tingling sensation over the entire right foot and 
 
         over the left foot." (Joint Exhibit 19, page 2)  Claimant's 
 
         attending physician was and continues to be Ronald K. Miller, 
 
         M.D., who asked Maurice P. Margules, M.D., neurological 
 
         surgeon, for consultation concerning a possible sympathetic 
 
         dystrophy of the right foot.  On discharge from the hospital, 
 
         claimant was advised he was to place no weight on his right leg 
 
         and was referred for physical therapy.  When his symptoms 
 
         failed to dissipate and seemed to worsen, claimant underwent a 
 
         right lumbar sympathetic block performed by Dr. Margules on May 
 
         12, 13 and 14, 1986, which confirmed the diagnosis of reflex 
 
         sympathetic dystrophy of the right foot due to trauma and was 
 
         placed on a therapy of medicine.  However, when again no change 
 
         was noted in claimant's condition, claimant underwent a right 
 
         lumbar sympathectomy on June 24, 1986 and was again referred 
 
         for physical therapy, principally on the use of a TNS unit 
 
         which had been prescribed by E.M. Prikaszczikow, D.P.M., and 
 
         from which it is noted claimant got some relief.  Dr. 
 
         Prikaszczikow also prescribed the use of orthotics which 
 
         claimant continues to utilize.  Dr. Margules testified claimant 
 
         would never have a normal right lower extremity and stated:
 
         
 
              Q.  What, then, is your current diagnosis?  Does it 
 
              remain reflex sympathetic dystrophy?
 
         
 
              A.  Yeah, it's the same.  It's been treated now by mean 
 
              of sympathectomy, so he has a sympathectomized right 
 
              limb and right hemipelvis.
 
         
 
              Q.  Is this a permanent condition?
 
         
 
              A.  Yes.
 
         
 
              Q.  Is there still some residual pain?
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   5
 
         
 
         
 
              A.  There's always residual pain in any of those 
 
              procedures, because the patient is not in control of 
 
              the environments and temperatures and so on that are 
 
              around him so, therefore, that in itself, extreme cold, 
 
              wind, difference in temperature will cause problems of 
 
              vasomotor constriction and so on.
 
         
 
              Q.  What sort of limitation, and I know you dealt 
 
              primarily with the neurological aspect, but can you 
 
              tell us what sort of limitations Mr. Gillespie will 
 
              have in the future as a result of this reflex 
 
              sympathetic dystrophy?
 
         
 
              A.  I think the one limitation that I  would place on 
 
              him is that I don't think he should work in areas where 
 
              there's very cold temperatures, like working in coolers 
 
              or stuff like this or expose his leg to very low 
 
              temperature.  That would be the main really restriction 
 
              that I would place on him.
 
         
 
              Q.  How about time on his feet?
 
         
 
              A.  Time on his feet will cause him to have some--some 
 
              edema of his foot, swelling of his foot but--some 
 
              swelling of his foot, edema of his foot, yes.
 
         
 
         (Jt. Ex. 28, pp. 16-17)
 
         
 
              Dr. Margules opined:
 
         
 
              Q.  Do you have an opinion as to whether or not Mr. 
 
              Gillespie's--is disabled as a result of these 
 
              injuries?
 
         
 
              A.  Yes.
 
         
 
              Q.  And what is that opinion?
 
         
 
              A.  My opinion is that as a result of his injury and 
 
              the ensuing sympathectomy the patient has a partial 
 
              permanent physical disability which I rate at 10 
 
              percent of the body as a whole.
 
         
 
              Q.  Ten percent of the body as a whole, despite the 
 
              fact that the original trauma occurred to the feet?
 
         
 
              A.  That's correct.
 
         
 
              A.  And why is that?  Why does it extend beyond the 
 
              scheduled member to the body as a whole?
 
              Q.  Well, because the--first of all, the disease or the 
 
              result of the trauma is one which is an extensive or 
 
              what we call an extensoprogressive syndrome.  In other 
 
              word, you start by injuring the toe or the foot and you 
 
              end up with a problem involving the entire sometime 
 
              right leg.  And it involve functions of the lower 
 
              extremities, which I mentioned above, vasomotor 
 
              functions, sweating functions and so on.  And then the 
 
              effects of the sympathectomy to the entire right 
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   6
 
         
 
              hemipelvis and right leg, in my opinion, makes it an 
 
              injury of the body as a whole.
 
         
 
         (Jt. Ex. 28, pp. 18-19)
 
         
 
              On March 17, 1987, Dr. Miller stated:
 
         
 
                I would think this gentleman based on his crush 
 
              injury and subsequent soft tissue and neurological 
 
              problems, probably has a ten percent permanent 
 
              impairment of the leg based on the foot.  His x-rays 
 
              today certainly do not show any bony changes.  He has 
 
              been consistent in his symptoms and really has failed 
 
              to show much significant improvement.  I don't know 
 
              what else we have at this point in time to offer this 
 
              patient.  He will be referred to Dr. Margules, and 
 
              instructed to follow-up with us prn.
 
         
 
         (Jt. Ex. 3)
 
         
 
              Claimant had been referred to West Dodge Physical Therapy in 
 
         July 1987 for a work capacity assessment which was conducted by 
 
         Randy Presler, P.T., whose conclusions are extensive and 
 
         specifically found in joint exhibit 26.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
               As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Iowa Code subsection 85.34(2)(u) provides:
 
         
 
                 In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
              paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
                 If it is determined that an injury has produced a 
 
              disability less than that specifically,described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   7
 
 
 
 
 
                                   ANALYSIS
 
              
 
              There is no dispute claimant's injury of January 22, 1986 
 
         arose out of and in the course of his employment or that the 
 
         injury is the cause of a permanent disability stipulated to be an 
 
         industrial disability.  The question is the extent of that 
 
         disability.
 
         
 
              Claimant's treating physicians have rendered opinions that 
 
         claimant has a "ten percent permanent partial disability of the 
 
         leg" and a "partial permanent physical disability" of ten percent 
 
         of the body as a whole.  While it is within the domain of the 
 
         expert witness to testify as to "impairment" as opposed to 
 
         "disability," in light of the fact the parties do not dispute the 
 
         permanency of claimant's injury, this fact will not be stressed.  
 
         It is accepted that claimant's injury has resulted in a 
 
         functional impairment.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   8
 
         
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Claimant is currently 39 years old, has an eleventh grade 
 
         formal education and has managed to acquire a GED and take some 
 
         college classes since his injury.  Claimant appears to the 
 
         undersigned to be of at least average intelligence and to be well 
 
         motivated if for no other reason than the fact that he has six 
 
         children and a spouse to support.  A review of claimant's work 
 
         history reveals claimant has earned his living primarily doing 
 
         manual labor involving lifting and standing.  Although there is 
 
         rio direct medical testimony on any lifting restrictions imposed 
 
         on claimant, claimant testified, and there is no reason to 
 
         question his voracity, that he has difficulty lifting and even 
 
         the medical experts agree claimant does and will continue to have 
 
         difficulty standing for any extended periods of time.  Claimant 
 
         limits his ability to stand eat four hours without incurring 
 
         increased symptoms and swelling in his lower extremity.  Claimant 
 
         has returned to work for Union Carbide/Eveready Battery/Ralston 
 
         Purina but was unable to return to his regular job as a crimper 
 
         operator where he was paid $9.97 per hour because of this work 
 
         injury.  Further, because of his inability to withstand the 
 
         physical requirements of the job, claimant voluntarily 
 
         transferred to a position which did not require the lifting and 
 
         standing but, in doing so, had to take cut in pay equal to $1.35 
 
         per hour.  Claimant did not return to work for defendant employer 
 
         because no work was available to him which did not require 
 
         standing.  A defendant employer's refusal to give any sort of 
 
         work to a claimant after he suffers his affliction may justify an 
 
         award of disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).  However, this fact is of questionable 
 
         significance since claimant considered his job with Union 
 
         Carbide/Eveready Battery/Ralston Purina to be his regular job and 
 
         may have returned to work there even if.he had not been injured.  
 
         Yet, the fact remains that because of his injury claimant did not 
 
         work from March 18, 1987 when his healing period ended through 
 
         March 1988 when he was recalled to work.  Claimant his suffered 
 
         both an actual loss of earnings and a loss of earning capacity as 
 
         a result of the work injury of January 22, 1986.
 
         
 
              Claimant has a scant medical history prior to his injury and 
 
         healing period of some 14 months as a result of this injury.  
 
         Claimant is currently employed in a position which is compatible 
 
         with his medical restrictions.  Although claimant stresses the 
 
         tenuous nature of this employment because of the company's 
 
         history of layoffs, it is claimant's present status that must be 
 
         evaluated.  To consider what may happen to claimant in the future 
 
         is pure speculation and not a proper area of inquiry in this 
 
         proceeding.  See Umphress v. Armstrong Rubber Company, Appeal 
 
         Decision filed August 27, 1987. ( "It appears ... that the deputy 
 
         based his decision in part on what may occur to claimant in the 
 
         future as opposed to his present condition.  This is mere 
 
         speculation.")
 
         
 
              Considering, then, all of the elements of industrial 
 
         disability, it is found that as a result of the personal injury 
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE   9
 
         
 
         sustained on January 22, 1986 which arose out of and in the 
 
         course of claimant's employment, claimant has a permanent partial 
 
         disability of 30 percent for industrial purposes entitling him to 
 
         150 weeks of permanent partial disability benefits.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on January 22, 1986 when he became 
 
         entangled in an auger while reaching to open doors on a truck.
 
         
 
              2.  Claimant sustained crush injuries to his feet, right 
 
         worse than left.
 
         
 
              3.  Claimant was hospitalized on more than one occasion and 
 
         underwent a number of surgical proceedings culminating in a right 
 
         lumbar sympathectomy on June 24, 1986.
 
         
 
              4.  Claimant has an inability to stand during what might be 
 
         considered a normal workday.
 
         
 
              5.  Claimant could not return to work with defendant 
 
         employer as they had no work which was compatible with claimant's 
 
         physical condition.
 
         
 
              6.  Claimant considered his regular employment to be with 
 
         Union Carbide/Eveready Battery/Ralston Purina and had accepted 
 
         work with defendant employer during the period of time when he 
 
         was on layoff with his regular employer.
 
         
 
              7.  Claimant returned to work for his regular employer Union 
 
         Carbide/Eveready Battery/Ralston Purina in March 1988 when he was 
 
         recalled.
 
         
 
              8.  Claimant was unable to return to work with his regular 
 
         employer in his regular occupation of crimper operator as he 
 
         found himself unable to stand all day and do the lifting 
 
         required.
 
         
 
              9.  Claimant accepted reassignment with Union Carbide/ 
 
         Eveready Battery/Ralston Purina which allows him to be seated 
 
         during hall of his work day and which requires he lift no more 
 
         than 15 pounds approximately six times a week but which required 
 
         he take a reduction in salary of $1.35 per hour.
 
         
 
             10.  Claimant continues to experience difficulty with his 
 
         lower extremity, wears a brace on his right leg, uses a TNS unit 
 
         for control of pain, and also uses orthotics in special 
 
         orthopedic shoes.
 
         
 
             11.  Claimant is 39 years, has an eleventh grade formal 
 
         education and has managed to acquire his GED and take some 
 
         college classes since the time of his injury.
 
         
 
             12.  Claimant, as a result of his work injury, has suffered 
 
         an actual loss of earnings.
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE  10
 
         
 
         
 
             13.  Claimant, as a result of his injury, has suffered a loss 
 
         of earning capacity.
 
         
 
             14.  Claimant, as a result of his injury, has sustained 
 
         permanent impairment.
 
         
 
             15.  Claimant, as a result of his injury, has a permanent 
 
         partial disability of 30 percent for industrial purposes.
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
             Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              1.  Claimant has established he has sustained, as a result 
 
         of the personal injury arising out of and in the course of his 
 
         employment on January 22, 1986, a permanent partial disability of 
 
         30 percent for industrial purposes entitling him to 150 weeks of 
 
         permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of one hundred ninety-six and 76/100 dollars ($196.76) per 
 
         week commencing March 18, 1987.
 

 
         
 
         
 
         
 
         GILLESPIE V. STANDARD CHEMICAL MFG. CO.
 
         PAGE  11
 
         
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be paid upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 27th day of September, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Timothy O'Grady
 
         Attorney at Law
 
         604 S. Main St
 
         Council Bluffs, IA 51501
 
         
 
         Mr. James Thorn
 
         Attorney at Law
 
         P.O. Box 398
 
         Council Bluffs, IA 51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1803
 
                                           Filed September 27, 1988
 
                                           Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLYDE LEROY GILLESPIE,
 
         
 
              Claimant,
 
                                                 File No. 853613
 
         
 
         vs.
 
                                               A R B I T R A T I O N
 
         STANDARD CHEMICAL MFG. CO.,
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY;
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant sustained serious crush injuries to his feet when 
 
         he was caught in an auger.  As a result thereof, he had back pain 
 
         and underwent a right lumbar sympathectomy.  The only issue 
 
         presented for resolution at hearing was the extent of claimant's 
 
         permanent partial disability.  Claimant has an inability to stand 
 
         for extended periods of time and requires a position which allows 
 
         him to sit throughout at least half his day.  Claimant found to 
 
         have sustained a permanent partial disability of 30% for 
 
         industrial purposes.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY KIRCHNER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 853614
 
         SIOUX TOOLS, INC.,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         CRUM & FORSTER COMMERCIAL
 
         INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Gary 
 
         Kirchner, claimant, against Sioux Tools, Inc., employer 
 
         (hereinafter referred to as Sioux Tools), and Crum & Forster 
 
         Commercial Insurance, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on July 
 
         20, 1987.  On February 15, 1990, 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 and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On July 20, 1987, claimant received an injury which arose 
 
         out of and in the course of his employment with Sioux Tools.
 
         
 
              2. The work injury of July 20, 1987, was at least a cause of 
 
         a period of temporary total, disability during a period of 
 
         recovery.  The time off from work for which claimant seeks 
 
         temporary total disability/healing period is
 
         
 
         
 
         
 
         KIRCHNER V. SIOUX TOOLS, INC.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         July 22, 1987 through April 19, 1988 and defendants agree that 
 
         claimant was off work during this period of time.
 
         
 
                                      ISSUES
 
                                        
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I. The causal connection of the claimed disabilities to the 
 
         work injury;
 
         
 
              II. The extent of claimant's entitlement to disability 
 
         benefits; and,
 
         
 
              III. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all the evidence, 
 
         the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue as to the nature 
 
         and extent of the injury and disability.  From his demeanor while 
 
         testifying, claimant appeared credible. However, claimant clearly 
 
         lied in an unemployment compensation proceeding prior to these 
 
         proceedings and as a result was denied such benefits by the 
 
         administrative law judge conducting the hearing.  Also, claimant 
 
         lied in his deposition in these proceedings as to the extent of 
 
         his activities while off work under doctor's care due to the work 
 
         injury.  Claimant specifically denied lifting items while working 
 
         on his house in September 1987 and denied working on his car at 
 
         the same time.  A video tape placed into evidence demonstrates 
 
         otherwise.  Therefore, claimant cannot be found credible.
 
         
 
              Claimant worked for Sioux Tools from October 1969 until 
 
         1987. Claimant performed several production jobs at Sioux Tools.  
 
         While off work after the work injury, claimant was discharged 
 
         when the insurance carrier hired a private detective who observed 
 
         claimant working on his house and cars when he was off work.  At 
 
         the time of his discharge, claimant was assigned to the job of 
 
         operating a computer controlled tape machine in which he loaded 
 
         and checked finished parts.
 
         
 
              On or about July 20, 1987, claimant injured his low back 
 
         while lifting a heavy basket with another employee.  As a result 
 
         of this injury, claimant was absent from his job from July 20, 
 
         1987 until September 22, 1987 upon the advice of his physicians.  
 
         Claimant was referred to treatment to K. M. Keane, M.D.  Dr. 
 
         Keane prescribed conservative care and
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KIRCHNER V. SIOUX TOOLS, INC.
 
         Page 3
 
         
 
         
 
         released claimant for only light duty work with no lifting, 
 
         bending, or twisting for six weeks.  Claimant was then referred 
 
         to Kevin Liudahl, M.D., an orthopedic surgeon.   After a request 
 
         from the management of Sioux Tools that they would be willing to 
 
         work out accommodations in an attempt to return claimant to work, 
 
         Dr. Liudahl recommended that claimant not do so and that claimant 
 
         should not lift anything heavier than a magazine.  The video 
 
         tapes discussed earlier indicated that claimant violated these 
 
         restrictions in his home work projects at that time.  Dr. Liudahl 
 
         released claimant to return to light duty work with no bending, 
 
         twisting, or lifting over 10 pounds on November 13, 1987.  The 
 
         doctor indicated at that time that he expected claimant to return 
 
         to his former work without long-term disability or limitations.  
 
         After a period of unemployment, claimant returned to work with 
 
         another employer in April 1988 as a welder of small parts.  
 
         Claimant said at the hearing that he is required to perform heavy 
 
         lifting on occasion in this job.  Claimant continues in this job 
 
         at the present time.  The finding that claimant's absences from 
 
         work as a result of the injury ended in September 1987 rather 
 
         than at a later date is due to the observations of claimant's 
 
         activities at that time on the video tape.  It is clear that 
 
         claimant was violating the restrictions imposed by Dr. Liudahl in 
 
         September 1987 and was in apparent better shape than he had 
 
         indicated to his physicians.
 
         
 
              The injury of July 1987 was not the claimant's first 
 
         experience with low back problems.  Claimant had a long history 
 
         of low back pain dating back to 1974.  Between 1974 and 1986, 
 
         claimant received periodic chiropractic care and.was off work for 
 
         a few days during many of these episodic bouts of back pal;n upon 
 
         the advice of his chiropractor.  Claimant related all of his back 
 
         problems during this period of time to his employment at Sioux 
 
         Tools.  On May 9, 1986, while lifting a tote pan full of parts, 
 
         claimant injured and twisted his low back.  Claimant was treated 
 
         by H. N. Hirsch, M.D., in the form of aspirin, heat packs and 
 
         physical therapy.  Also, at that time claimant was hospitalized 
 
         for traction, therapy and tests.  Claimant was  then released to 
 
         return to work but was again admitted a week later with the same 
 
         complaints.  A CT scan at the time revealed a herniated disc at 
 
         the L4-5 level. Claimant's conservative treatment at that time 
 
         gradually improved his condition and he was released to return to 
 
         work in October of 1986.  Claimant was laid off for economic 
 
         reasons at that time.and claimant then worked as a welder for 
 
         another employer.  Claimant continued treatment and was told to 
 
         consider surgery.  Claimant was then called back to Sioux Tools 
 
         in April of 1987 and was examined by the plant physician.  This 
 
         physician released claimant to return to full duty at Sioux Tools 
 
         but to "use common sense when lifting." Official notice was taken 
 
         of the fact that claimant settled his claim for workers' com-
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         KIRCHNER V. SIOUX TOOLS, INC.
 
         Page 4
 
         
 
         
 
         pensation benefits with another insurance carrier arising out of 
 
         the May 19, 1986 injury at work.
 
         
 
              Claimant failed to demonstrate that he suffers permanent 
 
         physical impairment as a result of the injury of July 20, 1987.  
 
         For this finding, greater weight was given to the views of Dr. 
 
         Liudahl who indicated that claimant suffers no such impairment.  
 
         Horst Blume, M.D., examined claimant in April 1988 and concluded 
 
         that claimant suffers from a 25 percent permanent partial 
 
         impairment to the body as whole as a result of all of his work 
 
         injuries but noted that claimant has a severe preexisting 
 
         degenerative disc disease.  Apart from the fact that Dr. Blume's 
 
         views do not have the same weight as those of a treating 
 
         physician, the doctor made no attempt to differentiate between 
 
         the various work injuries since 1974.  It is difficult to 
 
         conclude that most of claimant's problems are due to the single 
 
         injury of 1987.  William Hamsa, M.D., examined claimant in 
 
         September 1988 and concluded that claimant does have a 10 percent 
 
         permanent partial impairment but offered no opinion as to the 
 
         cause of this impairment.  Dr. Keane stated in one of his reports 
 
         after the July 1987 incident that claimant's problems were 
 
         related to the original injury.  Dr. Keane had also treated 
 
         claimant following the May 1986 injury.  From the above evidence 
 
         it is concluded that claimant has established only that he 
 
         suffered a temporary aggravation of a preexisting condition on 
 
         July 20, 1987.
 
         
 
              Claimant seeks payment of the bills from Dr. Blume, Dr. 
 
         Hamsa and from the Marian Health Center after September 1987 as 
 
         set forth in exhibits 70 through 75.  Defendants denied payment 
 
         of these bills because of the video tape observations.  The 
 
         services rendered by Dr. Blume and Dr. Hamsa appear to be an 
 
         evaluation of disability but both did, in fact, give treatment 
 
         recommendations.  Also, the treatment of the Marian Health Center 
 
         Clinic is related to the injury in the form of diagnostic tests 
 
         and therapy.  The fact that claimant was observed by a private 
 
         detective working at home in excess of his restrictions does not 
 
         affect the causal connection of these medical expenses to the 
 
         injury or their reasonableness as medical treatment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              I. The claimant has the burden of proving by a 
 
         pre-ponderance 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.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KIRCHNER V. SIOUX TOOLS, INC.
 
         Page 5
 
         
 
         
 
         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 along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award. Giere v. Asse 
 
         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).
 
         
 
              In the case sub judice, legal issues with reference to 
 
         causal connection where not raised by the parties.  Claimant was 
 
         able to show by a preponderance of the evidence that he does 
 
         suffer from some degree of  permanent partial impairment but he 
 
         failed to show that any of this impairment is related to the work 
 
         injury.  Claimant was able to show by a preponderance of evidence 
 
         a causal connection between the work injury and temporary 
 
         disability while recovering from the temporary aggravation.
 
         
 
              II. Pursuant to Iowa Code section 85.33(l), claimant is 
 
         entitled to temporary total disability benefits from the first 
 
         date of disability following the injury until claimant returns to 
 
         work or until claimant is medically capable of returning to 
 
         substantially similar work to the work he was performing at the 
 
         time of injury.  In the case sub judice, it was found that 
 
         claimant was able to return to substan-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KIRCHNER V. SIOUX TOOLS, INC.
 
         Page 6
 
         
 
         
 
         tially similar work to operating a computer tape machine when he 
 
         was observed working at his home on September 22, 1987.  
 
         Claimant's entitlement to temporary total disability benefits 
 
         extends from July 22, 1987 through September 22, 1987, a total of 
 
         nine weeks.  According to the prehearing report, claimant has 
 
         been paid in excess of 15 weeks of benefits.  Claimant is not 
 
         entitled to further weekly benefits.
 
         
 
              III. Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of her work injury.  However, claimant is entitled to 
 
         an order of reimbursement only if claimant has paid those 
 
         expenses.otherwise, claimant is entitled to an order directing 
 
         the responsible defendants to make such payments.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988),
 
         
 
              In the case at bar, claimant established that he is entitled 
 
         to the expenses requested.  Claimant appeared to seek a great 
 
         deal of variety of treatment after September of 1988.  However, 
 
         defendants have denied liability.  This agency has held that 
 
         defendant loses its right to control the medical care when they 
 
         deny liability.  Kindhart v. Fort Des Moines Hotel, I Iowa 
 
         Industrial Commissioner Decisions 3, 611 (Appeal Decision 1985);  
 
         Barnhart  v. MAQ, Inc., I Iowa Industrial Commissioner Report 16, 
 
         (Appeal Decision 1981). Defendants have failed to show by the 
 
         preponderance of the evidence that the requested medical expenses 
 
         where somehow unreasonable.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay the medical expenses listed in the 
 
         prehearing report, exhibits 70 through 75.  Claimant shall be 
 
         reimbursed for any of these expenses paid by him.  Otherwise, 
 
         defendants shall pay the provider directly along with any lawful 
 
         late payment penalties imposed upon the account by the provider.
 
         
 
              2. Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 29th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KIRCHNER V. SIOUX TOOLS, INC.
 
         Page 7
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg
 
         P 0 Box  1194
 
         Sioux City  IA  51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce St, Suite 200
 
         P 0 Box 3086
 
         Sioux City  IA  51102
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St, Suite 16
 
         Des Moines  IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                      5-1801
 
                                                      Filed May 29, 1990
 
                                                      LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY KIRCHNER,
 
         
 
              Claimant,
 
         VS.
 
                                                  File No. 853614
 
         SIOUX TOOLS, INC.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         CRUM & FORSTER COMMERCIAL
 
         INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1801 - Nonprecedential
 
         
 
              Causal connection of permanent disability.