5-1803
 
            Filed July 22, 1991
 
            Clair R. Cramer
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DARLA M. LAMP, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 855487
 
            M.A. FORD MANUFACTURING CO.,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Short form affirmance of deputy decision filed March 13, 
 
            1990 awarding 35 percent industrial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
                                        
 
         DARLA M. LAMP,
 
         
 
               Claimant,
 
         
 
         VS.
 
                                               File No. 855487
 
         M.A. FORD MANUFACTURING, CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         AETNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Darla M. 
 
         Lamp, claimant, against M.A. Ford Manufacturing Company, 
 
         employer, and Aetna Insurance Company, insurance carrier, 
 
         defendants, for benefits as the result of an injury that occurred 
 
         sometime between September 1, 1987 and September 4, 1987.  A 
 
         hearing was held on October 25, 1989, in Davenport, Iowa, and the 
 
         case was fully submitted at the close of the hearing.  Claimant 
 
         was represented by Burton H. Fagen.  Defendants were represented 
 
         by Patrick W. Driscoll.  The record consists of the testimony of 
 
         Darla M. Lamp, claimant; Karl D. Madsen, personnel manager; Wendy 
 
         S. Johnson, former employee of employer; Bob A. Lamp, Jr., 
 
         claimant's former husband; Lee Schneider, employer's vice 
 
         president of engineering; and joint exhibits A through P.  The 
 
         deputy ordered a transcript of the hearing.  Claimant's attorney 
 
         submitted an excellent prehearing brief.  Defendants' attorney 
 
         did not submit either a prehearing or a posthearing brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 2
 
         
 
         
 
              That claimant sustained an injury between September 1, 1987 
 
         and September 4, 1987, which arose out of and in the course of 
 
         employment with employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That the injury was the cause of temporary disability; that 
 
         claimant was paid 6 5/7 weeks of temporary disability benefits 
 
         for the period from September 7, 1987 to October 26, 1987; and 
 
         that temporary disability benefits are no longer a disputed issue 
 
         in this case at this time.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is October 26, 
 
         1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $135.51 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendants.
 
         
 
              That defendants seek no credit for employee 
 
         non-occupational group health plan benefits paid to claimant 
 
         prior to hearing.
 
         
 
              That defendants seek no credit for any workers' 
 
         compensation partial permanent disability benefits paid to 
 
         claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for 
 
         determination at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits to which she is 
 
         entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was 35 years old at the time of the injury and 37 
 
         years old at the time of the hearing.  She completed two years of 
 
         high school through the tenth grade and never obtained a GED 
 
         (transcript p. 98).  Initially she worked in restaurants.  She 
 
         then became engaged in electronics and assembled and soldered
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         dials and resisters on circuit boards.  She then took another 
 
         circuit board electronics job where they built testing equipment 
 
         such as ozone meters.  She then took a third electronics job 
 
         reading blueprints and inserting coils into pumps and electrical 
 
         motors.  She then worked as a mother and homemaker for five 
 
         years.  She then took a fourth electronics job reading 
 
         blueprints, building and soldering wire harnesses.  Electronics 
 
         work paid approximately $5 per hour.  When this employer closed 
 
         she drew unemployment for a period of time.  She found her job 
 
         with this employer through Job Service.
 
         
 
              Claimant was hired for this job by Karl Madsen and went to 
 
         work on Monday, August 31, 1987.  She was happy to receive this 
 
         job because her unemployment was running out and her husband was 
 
         not providing any income for the family.  Claimant testified that 
 
         she was in perfect health at this time.  She denied any allergies 
 
         or hay fever.  Weather conditions did not bother her breathing.  
 
         She was able to walk up stairs.  She had no history of any 
 
         respiratory diseases.  She admitted to having pneumonia when she 
 
         was 33 years old, but denied any residual problems from it.  
 
         Claimant admitted that she smoked quite heavily in 1984 and 1985 
 
         during her divorce proceedings and when her mother died.  
 
         Defendants demonstrated that claimant was still smoking two packs 
 
         of cigarettes a day when she saw one of her personal physicians, 
 
         Rebecca Wiese, M.D., on December 30, 1986 (exhibit M, page 2).  
 
         Claimant testified that Dr. Wiese did not treat her for any 
 
         respiratory or pulmonary problems and that she had no respiratory 
 
         or allergy problems at that time (tr. p. 52).  Claimant further 
 
         testified that she was not told that she would  be working with 
 
         carbide material, that would be sprayed in her work area and no 
 
         one ever suggested that she should wear gloves or a mask (tr. p. 
 
         54).
 
         
 
              The company makes circuit board drills and other types of 
 
         cutting tools, but primarily circuit board drills.  Karl Madsen, 
 
         personnel manager, explained that the process begins with a drill 
 
         blank, which is a piece of metal 1 1/4 inches long and 1/8 of an 
 
         inch in diameter (tr. p. 19).  There are three basic jobs, 
 
         grinding, polishing on a polisher and fluting (tr. p. 122).  
 
         Wendy Johnson, a former employer, explained that they are first 
 
         formed in a grinder, then polished and lastly they are put on the 
 
         flute machine.  These are three separate steps (tr. p. 122 & 
 
         123).  These drill bits are made of carbide metal, which is an 
 
         extremely hard metal (tr. p. 20).  A warning which comes with the 
 
         blank drill bits reads in part as follows:
 
         
 
                                     WARNING
 
                                        
 
                              CEMENT CARBIDE PRODUCT
 
                                        
 
                                       ***
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 4
 
         
 
         
 
              READ MATERIAL SAFETY DATA SHEET FOR APPLICABLE CARBIDE GRADE 
 
              BEFORE GRINDING PRODUCT.
 
              
 
              WARNING: GRINDING OF THIS PRODUCT WILL PRODUCE DUST OR 
 
              POTENTIALLY HAZARDOUS INGREDIENTS.
 
              
 
              Dust from grinding this product can cause nose, throat, skin 
 
              and eye irritation and temporary or permanent respiratory 
 
              disease in a small percentage of exposed individuals.  
 
              Permanent respiratory disease can lead to disability or 
 
              death.  Coolant mist from wet grinding may contain dust.
 
         
 
              *  Avoid breathing dust or mist.
 
              
 
              *  Avoid prolonged skin contact with dust or mist.
 
              
 
              *  Use adequate ventilation when grinding.
 
              
 
              *  Maintain dust level below OSHA and ACGIH levels.
 
              
 
              *  Use protective devices.
 
              
 
              *  Wash hands thoroughly after handling before eating or 
 
              smoking.
 
              
 
              *  Dispose of materials according to local, state and/or 
 
              federal regulations.
 
         
 
         (exhibit I)
 
         
 
              Madsen testified that this warning is not shown to 
 
         employees (tr. p. 21).  He added that employees are not required 
 
         to wear masks or gloves (tr. p. 22).  He maintained that the 
 
         drill bits are too small to handle with gloves.  In the last five 
 
         years, he could only find five cases of dermatitis and two cases 
 
         of affected breathing (tr. pp. 23 & 23).  The employees do not 
 
         see the warning because it comes on the box, and the drill bits 
 
         are taken out of the box, counted, weighed and apparently 
 
         dispersed to the work stations without the box and without the 
 
         warning.  He said the plant was checked by OSHA three years ago 
 
         and by another organization one year ago and the company received 
 
         a "clean bill of health" (tr. p. 25).
 
         
 
              When claimant received the drill bits they would have 
 
         already been through the grinding and polishing process and would 
 
         be in racks.  Claimant's job was to flute the drill bits.  An arm 
 
         swings out of the machine to the operator.  The operator reaches 
 
         through a window and puts a drill blank in the arm, then the arm 
 
         swings into the grinding wheels and flutes the drill bits.  The
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 5
 
         
 
         
 
         grinding wheels are probably three feet away from the operator 
 
         and do the fluting automatically (tr. pp. 27 & 28).
 
         
 
              There is a spray from an oil coolant which is used to keep 
 
         the grinding wheel cool.  The machinery is encased in a cubicle 
 
         and the employee works through an 18 x 18 inch square hole.  
 
         Madsen acknowledged an employee sometimes get the coolant on 
 
         their hands, but he denied that it was breathed.  Madsen stated, 
 
         "The breathing zone is not affected.  They do not breathe this 
 
         mist." (tr. p. 29).  Madsen maintained that the mist is taken 
 
         into the ventilation system through a tremendous negative draft.  
 
         He admitted that particles of carbide are contained in the 
 
         coolant spray (tr. p. 30).  He acknowledged that he maintains two 
 
         kinds of medication in the office for skin rashes (tr. p. 31).  
 
         The two persons affected with breathing problems, that he knew 
 
         about, were claimant and Wendy Johnson (tr. p. 24).  The machine 
 
         itself is enclosed in a 4 foot x 4 foot cube, the employees work 
 
         through a window which is 18 inches x 18 inches and this is 
 
         covered by a window of Plexiglass, which the employees work 
 
         through with their hands in order to operate the machine (tr. p. 
 
         35).  The spraying comes from the coolant spraying on the wheel 
 
         as it cuts the tool (tr. p. 36).  Madsen said it is against 
 
         company policy to have the Plexiglass up and open when the 
 
         operator is running the machine.  However, he was aware of the 
 
         fact that some operators will run the machine with the guard up 
 
         (tr. p. 41).
 
         
 
              Claimant testified that on August 31, 1987, she was shown 
 
         how to operate the fluting machine and proceeded to operate it.  
 
         These carbide drills were variously referred to as bits, tips, 
 
         drills and tools.  She was shown how to put them into the fluting 
 
         machine.  She operated it at first with the Plexiglass open.  It 
 
         wasn't until later that another employee told her that she was 
 
         supposed to close the Plexiglass.  When claimant awoke on 
 
         Tuesday, she found that she was covered with a rash on her arms, 
 
         neck, face and eyes.  She notified Madsen who gave her a 
 
         protective cream.  He said if this didn't work, he had a more 
 
         potent cream with cortisone in it.  He told her some employees 
 
         get this rash.  Further, if she got it real bad, she would have 
 
         to quit her job if she were allergic to it.  Claimant wanted to 
 
         keep the job because she was the sole support of her two 
 
         children.
 
         
 
              Claimant testified that on Tuesday, September 1, 1987, she 
 
         operated the grinder.  The grinder emitted a dry carbide dust 
 
         which got on her skin.  The fluting machine emitted a wet spray 
 
         which contained the carbide dust which got on her skin.  Claimant 
 
         testified that she continued to encounter the mist even after she 
 
         closed the Plexiglass door.  After work on Tuesday, she began 
 
         coughing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 6
 
         
 
         
 
              On Wednesday, September 2, 1987, she continued nonstop 
 
         coughing and had swelling real bad on her face and arms.  
 
         Claimant worked on Thursday, September 3, 1987 and Friday, 
 
         September 4, 1987, but the rash and swelling continued and the 
 
         coughing continued.  Claimant testified that she did not sleep on 
 
         Wednesday night, Thursday night or Friday night.  She had to sit 
 
         all night because she couldn't breathe if she would lie down.
 
         
 
              This began as a dry cough, but by Saturday, she was 
 
         coughing up blood and phlegm and it continued to get worse.  On 
 
         Monday, September 7, 1987, she had planned to go to work, but her 
 
         stepsister came over and saw that she was gasping for air and 
 
         took her to the emergency room at Mercy Hospital where she was 
 
         treated by Al Schmitt, M.D.  Dr. Schmitt took claimant off work 
 
         and made this comment in that note, "This patient's medical 
 
         problems of rash and bronchitis are work related and totally 
 
         unable to perform her job." (ex.  A).  Dr. Schmitt put her on a 
 
         mist inhaler which enabled her to breathe easier.  He also 
 
         prescribed hydrocortisone pills to stop the itching of the rash.  
 
         He also prescribed a Ventolin inhaler and antibiotics.
 
         
 
              Madsen then arranged for claimant to see the company 
 
         doctor, Marvin F. Ohsann, M.D.  She saw him on September 12, 1987 
 
         and September 19, 1987 and he continued to keep her off work 
 
         (exs. B & C).  Dr. Ohsann referred claimant to Akshay Mahadevia, 
 
         M.D., a pulmonologist.  Dr. Ohsann also administered treatments 
 
         on the breathing machine and prescribed more antibiotics.  
 
         Claimant testified at this point that her condition was still 
 
         getting worse and that she was not able to lie down to sleep 
 
         because her lungs were so full (tr. pp. 55-73).
 
         
 
              Claimant testified that Dr. Mahadevia took more tests, 
 
         prescribed antibiotics, inhalers, breathing tablets and steroids.  
 
         Dr. Mahadevia continued to keep claimant off work.  She 
 
         understood him to say that she would not be able to return to 
 
         this job or any job which involved chemicals.  Claimant testified 
 
         that she has difficulty with weather changes, going up and down 
 
         steps and using household cleaning agents because they bring on 
 
         coughing attacks.  Claimant testified at this time that her 
 
         former husband moved in with her to assist with watching the 
 
         children and performing the household tasks, but he was unable to 
 
         help her financially.  Claimant testified that she is still 
 
         taking medicine prescribed by Dr. Mahadevia (tr. pp. 71-83).
 
         
 
              Claimant testified that she was able.to take new employment 
 
         with Ralston Purina on October 26, 1987.  She took a 
 
         pre-employment physical examination and passed it, which included 
 
         a blood test, urine test, hearing test and eye test.  The doctor 
 
         did not closely examine her lungs or breathing and she used the 
 
         Ventolin inhaler just before he came into the room.  She did not 
 
         disclose her breathing problems because she needed the 
 
         employment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 7
 
         
 
         
 
              Claimant said she prevailed upon Dr. Mahadevia to release 
 
         her to work because she needed the employment.  He released her 
 
         on the condition that she would not be around any type of 
 
         chemicals and that she would continue to take her medication.  
 
         She continued to have coughing attacks in the new employment (tr. 
 
         pp. 83-89).
 
         
 
              Claimant testified that she is down to about five 
 
         cigarettes a day at the time of hearing and planned to see a 
 
         hypnotist to try to quit the rest of the way (tr. p. 96).  
 
         Claimant testified that she is unable to go back to 
 
         the.electronics field because she cannot be around the fumes of 
 
         soldering.  Claimant testified that she is sensitive to the smell 
 
         of soaps and detergents in stores, various scents such as candle 
 
         scents and she is very sensitive to fumes of all kinds.  Claimant 
 
         denied she had any of these problems before September 1, 1987.  
 
         She testified that she was sick at the time of the hearing and 
 
         had an appointment with Dr. Mahadevia on November 7 (tr. pp. 
 
         96-98).
 
         
 
              On cross-examination claimant admitted that she lied on her 
 
         job application with employer by stating that she had obtained a 
 
         high school diploma (tr. pp. 88 & 89).  After she was told to 
 
         close the Plexiglass she did so, but she still felt like there 
 
         was mist on her at all times.  She was constantly wiping it off 
 
         (tr. pp. 100-102).  Claimant testified that she started at 
 
         Ralston Purina for $10 an hour and was currently earning $13.26 
 
         per hour at the time of hearing (tr. p. 102).
 
         
 
              Claimant acknowledged that she may not have seen Dr. 
 
         Mahadevia after June 24, 1988, until the date of the hearing on 
 
         October 25, 1989, but that she had an appointment to see him on 
 
         November 7, 1989 (tr. pp. 105-109).  The current appointment is 
 
         because of the lung infection which has developed again (tr. p. 
 
         109).  Claimant acknowledged that even though she may not have 
 
         seen Dr. Mahadevia from June of 1988 until October of 1989, a 
 
         period of 16 months, she had, nevertheless, spoken to him on the 
 
         telephone and had received prescriptions from him.  She also 
 
         stated that she had seen her family physician and obtained 
 
         prescriptions.
 
         
 
              Stephen Sidwell, M.D., submitted an office visit record 
 
         that he had seen claimant on April 22, 1989.  He noted that 
 
         claimant was a known asthmatic and presented with a cough of 
 
         several days duration.  She had coughed up thick, slightly 
 
         discolored sputum.  He diagnosed bronchitis with history of 
 
         asthma and prescribed breathing medications (exs. J-1 and J-2).  
 
         Claimant testified that it is difficult to see Dr. Mahadevia in 
 
         person because he is at the hospital in the morning and she 
 
         begins work in the afternoon.  Also, he is a very busy doctor 
 
         because he is not only a pulmonologist, but he is also a sleep 
 
         disturbance specialist and he is very difficult to see (tr. p. 
 
         120).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 8
 
         
 
         
 
              Wendy Johnson testified that she was employed by employer 
 
         in August of 1987.  She operated the grinder, the polisher and 
 
         the flute machine.  The grinder and polisher do not have guards 
 
         and carbide dust gets on the operator.  The flute machine uses a 
 
         cutting oil that puts off a mist on the operator.  Some of the 
 
         employees work with the Plexiglass up (tr. pp. 121-128).  Johnson 
 
         testified that she left employer because the job made her sick.  
 
         She developed a rash and a cough and had difficulty breathing.  
 
         Johnson testified that another employee, Randy Bankston, with 
 
         whom she was associated, coughed up black stuff, and he produced 
 
         black stuff when he blew his nose (tr. p. 129).  Claimant 
 
         acknowledged that she only worked for employer for eight days 
 
         (tr. p. 130).  Employer's records show that Johnson worked there 
 
         from August 3, 1987 to August 14, 1987 (tr. p. 132).
 
         
 
              Robert A. Lamp, Jr. testified that he is claimant's former 
 
         husband, but he is presently residing with her.  He returned 
 
         after September 7, 1987, to assist her because she had a rash on 
 
         her hands and arms, her face was puffed up, her eyes were almost 
 
         closed and she could hardly breathe.  It was necessary for her to 
 
         sit in a chair all of the time.  She coughed all of the time and 
 
         she produced phlegm and blood.  She was not capable of any 
 
         physical activity at that time.  He testified that he is not able 
 
         to provide any financial support to her or their two children.  
 
         He verified that Dr. Mahadevia is difficult to see and that is 
 
         why claimant went to see Dr. Sidwell (tr. pp. 133-140).
 
         
 
              Lee Schneider testified that he is a 22 year employee of 
 
         employer.  He is responsible for the plant machinery and 
 
         equipment.  He is also responsible for safety.  He explained that 
 
         Excelene 5595 is the cutting fluid used in the grinding 
 
         operations as a lubricant and coolant.  The witness examined a 
 
         material safety data sheet and confirmed that section V, health 
 
         hazard data, stated, "Prolonged or frequent skin contact may 
 
         cause irritation."  This agent is used on the fluting machine.
 
         
 
              Safety devices installed by the company are that the 
 
         machines are enclosed and ventilated so that air is pulled into 
 
         the machine and out through an air handling precipitron unit, but 
 
         it is necessary to handle parts that have this cutting fluid on 
 
         them so it is not possible to avoid prolonged or frequent contact 
 
         (tr. pp. 140-146; exs.  N-1 and N-2).  He indicated that the 
 
         company operates within guidelines established by the government 
 
         (tr. p. 145).  The witness examined a letter and a report from 
 
         the Department of Labor.  An inspection was performed on February 
 
         20, 1986 under the section entitled, "Organic Vapors", it showed 
 
         that no benzene, hexane, or xylene were detected in monitored air 
 
         samples.  The report said other solvents may be present, but were 
 
         not requested in the lab analysis.  The report does not mention 
 
         excelene or carbide (exs. 0-1 & 0-2).  Schneider testified that 
 
         he believed that the operators perform their.duties with the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 9
 
         
 
         
 
         Plexiglass door shut according to his observation (tr. p. 149).  
 
         He examined a document submitted by the supplier of excelene 
 
         dated September 29, 1987.  The supplier of excelene reported to 
 
         employer, "According to our test results, the product in the 
 
         system does not contain any solvent or materials that could cause 
 
         dermatitis." (exs.  P-1 & P-2).  The witness acknowledged that 
 
         sometimes employees operate the machines without the Plexiglass 
 
         shields in place (tr. p. 154).
 
         
 
              Dr. Mahadevia completed a blank form, "Physician's and 
 
         Surgeon's Report to Lawyer of Patient", on January 28, 1988 (ex. 
 
         D).  He indicated that he first saw claimant on September 17, 
 
         1987 for asthmatic bronchitis aggravated by chemical exposure.  
 
         He showed that he prescribed bronchodialators, inhalers and a 
 
         short course of steroids.  Question 3 asks, "What disability now 
 
         exists?"  The doctor answered, "None, except certain 
 
         environmental exposures." The form then asked, "Permanent?"  The 
 
         doctor replied, "No."  The form then asked, "Temporary?"  The 
 
         doctor replied, "No." Paragraph 4,  Prognosis, asks, "Complete 
 
         recovery?"  The doctor replied, "No."
 
         
 
              On January 25, 1988, the doctor reported that initial 
 
         x-rays showed some inflammatory changes, but a repeat chest x-ray 
 
         on September 23, 1987 was normal.  He administered pulmonary 
 
         function tests and pulmonary exercise tests.  The latter tests 
 
         showed pulmonary impairment to exercise.  Claimant was started on 
 
         various medications to improve her condition.
 
         
 
              Dr. Mahadevia summarized claimant's situation as follows on 
 
         January 25, 1988:
 
         
 
              ...My impression is that she has chronic asthmatic 
 
              bronchitis with significant deterioration after chemical 
 
              exposure.  She was exposed to cemented carbide products as 
 
              mentioned above, and they contain tongstun cobard and also 
 
              Tantalum.  These products have irritating effects on 
 
              bronchial mucosa and can cause significant inflammatory 
 
              changes.  I think Darla had marked aggrevation [sic] of 
 
              inflammatory changes in her bronchial tubes after exposure, 
 
              but over a period of a few months with treatment, she has 
 
              progressively improved.  Since October, she has gone back to 
 
              work at Ralston Purina, and has been working well without 
 
              significant difficulty.  She still has occasional episodes 
 
              of shortness of breath, but with her treatment, she feels 
 
              much improved.
 
              
 
              In my opinion, her chronic asthmatic bronchitis will require 
 
              continuous treatment, but the effect of chemical exposure 
 
              has been slowly disappearing.  I have advised her to 
 
              continue to work at Ralston, and to con-
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 10
 
         
 
         
 
              tinue to take medication, and I will follow her 
 
              periodically.
 
         
 
         (exhibit E-1)
 
         
 
              The cardiopulmanary stress test report dated October 14, 
 
         1987, indicates pulmonary impairment to exercise (ex. E-5).
 
         
 
              On February 10, 1988, Dr. Mahadevia stated:
 
         
 
              Darlas [sic] ability to work in irritant environment, or 
 
              environment with irritant chemicals is impaired and that 
 
              would be the extent of her disability which would be very 
 
              difficult to quantify, but could be approximately in the 
 
              range of 10-20%.  If she is to work in an environment free 
 
              of various chemicals, this may not be a significant factor.
 
         
 
         (exhibit F)
 
         
 
              Dr. Mahadevia reported by letter one more time on March 9, 
 
         1988, as follows:
 
         
 
              I am writing in regards to your question, "Under normal 
 
              conditions does Darla have lung dysfunction?"  In answer to 
 
              this question, due to Darlas [sic] asthma, she has very 
 
              sensitive bronchial tubes, but being exposed to such 
 
              irritants, this accelerates her condition.
 
         
 
         (exhibit G)
 
         
 
              In a deposition taken on October 13, 1988, Dr. Mahadevia 
 
         testified that he is board certified in internal medicine and 
 
         board certified in pulmonary medicine.  When he first saw 
 
         claimant on September 17, 1987, she presented with symptoms of 
 
         cough, sputum production and shortness of breath.  She reported 
 
         that she had been exposed to cemented carbide products.  These 
 
         products are mainly irritant to the internal structures of the 
 
         body.  She reported pneumonia two years prior to this time 
 
         without any residual difficulties (ex. H, pp. 1-8).  She also 
 
         reported that she smoked a half a pack of cigarettes a day.  He 
 
         indicated she should stop smoking.  She indicated that she had 
 
         attempted to stop and cut down, but had not been successful (ex. 
 
         H. p. 13).  Dr. Mahadevia did not believe:that smoking alone was 
 
         the cause of her pressing condition, but was a contributing 
 
         factor like humidity, cold air, and dust (tr. pp. 13 & 14).  Dr. 
 
         Mahadevia testified:
 
         
 
              From her history, it seems that the exposure to the
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              chemicals that we described before triggered the irri-
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 11
 
         
 
         
 
              tation of the bronchial tubes and my notes indicate that 
 
              since then she started having all the chronic pulmonary 
 
              symptoms.
 
         
 
         (exhibit H, p. 14)
 
         
 
              Cigarette smoking was not the principle cause because she 
 
         was smoking cigarettes prior to the exposure to the chemicals and 
 
         she did not have similar symptoms (ex. H, p. 15).
 
         
 
              When Dr. Mahadevia saw claimant on January 25, 1988, she 
 
         did complain of episodes of coughing and shortness of breath two 
 
         or three times a day off and on while working at Ralston Purina 
 
         (ex. H, p. 15).
 
         
 
              Dr. Mahadevia said he continues to prescribe Ventolin and 
 
         Uniphyl.  He indicated that she may have to take these 
 
         medications for the rest of her life.  Dr. Mahadevia felt that 
 
         she will, "Very likely will, very likely will have problems off 
 
         and on for several years requiring medical attention, medication, 
 
         et cetera." (ex. H, p. 16).  In the way of restrictions, Dr. 
 
         Mahadevia said that claimant should stay away from extremely cold 
 
         air, very high humidity situations, very smoky environment, dusty 
 
         environment, and various chemical irritants (ex. H, p. 17).
 
         
 
              Claimant indicated to the doctor that it was dusty at 
 
         Ralston Purina and he advised her to discuss it with them and try 
 
         to acquire a job in a relatively clear environment (ex.  H, pp. 
 
         17 & 18).  Claimant also reported to the doctor that after heavy 
 
         work she gets tired, has coughing episodes and becomes short of 
 
         breath (ex.  H, p. 18) .
 
         
 
              Dr. Mahadevia testified that since claimant did not have 
 
         any problems with her pulmonary system before she was exposed to 
 
         cemented carbide, then it was his opinion that the cause of her 
 
         current condition was exposure to cemented carbide products (ex. 
 
         H, pp. 20 & 21).
 
         
 
              He testified that he last saw claimant on June 24, 1988, 
 
         but that she will continue to see him or some other pulmonologist 
 
         for the rest of her life (ex. H, p. 21).  The doctor acknowledged 
 
         that claimant's condition could become better, worse or stay the 
 
         same in the future (ex. H, pp. 21-27).  Dr. Mahadevia testified 
 
         that his nurse completed exhibit D, but that he examined it and 
 
         signed it.  He explained that any inconsistency between the 
 
         answers to the questions in exhibit D and his testimony in the 
 
         deposition were due to the way the questions are asked on the 
 
         blank form (ex. H, p. 30).  He believed that claimant's condition 
 
         had stabilized, but that she will continue to have problems off 
 
         and on (ex. H, pp. 31 & 32).  In his own words, Dr. Mahadevia 
 
         said, "I do not see complete recovery." (ex. H, p. 34).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 12
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of September 7, 1987, is casually 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of casual connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the casual connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              A great deal of the testimony centered on whether employer 
 
         provided employee a safe place to work.  This decision makes no 
 
         determination in that respect.  The parties have stipulated that 
 
         claimant did sustain an injury between September 1, 1987 and 
 
         September 4, 1987, which arose out of and in the course of 
 
         employment with employer.  This decision addresses only whether 
 
         the injury was the cause of permanent disability, and if so,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 13
 
         
 
         
 
         determines claimant's entitlement to permanent disability 
 
         benefits.
 
         
 
              Dr. Mahadevia indicated in his reports and clearly stated 
 
         in his deposition that claimant's condition was caused by the 
 
         exposure to cemented carbide.  The blank form report dated 
 
         January 28, 1988, states, "Asthmatic bronchitis aggravated by 
 
         chemical exposure." (ex. D).  The letter dated January 25, 1988, 
 
         states, "My impression is that she has chronic asthmatic 
 
         bronchitis with significant deterioration after chemical 
 
         exposure.  She was exposed to cemented carbide products as 
 
         mentioned above, and they contain tongstun cobard and also 
 
         Tantalum.  These products have irritating effects on bronchial 
 
         mucosa and can cause significant inflammatory changes." (ex. 
 
         E-1).
 
         
 
              It would appear that claimant's injury bore out a number of 
 
         the warnings that come in the box with cemented carbide products, 
 
         but which the employees never see.  Claimant's case comes within 
 
         this quotation on the warning label: "Dust from grinding this 
 
         product can cause nose, throat, skin and eye irritations and 
 
         temporary or permanent respiratory disease in a small percentage 
 
         of exposed individuals.  Permanent respiratory diseases can lead 
 
         to disability or death.  Coolant mist from wet grinding may 
 
         contain dust."
 
         
 
              Even though claimant smoked as much as two packs of 
 
         cigarettes a day prior to the exposure to cemented carbide, Dr. 
 
         Mahadevia pointed out that she did not have these pulmonary 
 
         complaints that developed after the exposure to cemented carbide.  
 
         Dr. Mahadevia was fully aware of her smoking habits and the 
 
         pneumonia that she suffered two years prior to this injury.  Yet 
 
         he determined that the exposure to cemented carbide was the cause 
 
         of her pulmonary dysfunction (ex. H, pp. 13-15, 27 & 28).
 
         
 
              Wherefore, based on the foregoing evidence, it is 
 
         determined that claimant sustained an injury on September 7, 
 
         1987, which arose out of and in the course of employment with 
 
         employer.  The date of September 7, 1987 is chosen as the date of 
 
         injury in line with the determination in the cumulative injury 
 
         case of McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
         1985), which determined the injury date to be the date that 
 
         claimant was forced to leave employment due to the injury.
 
         
 
              Dr. Mahadevia assigned an impairment rating of between 10 
 
         to 20 percent of the body as a whole (ex. F;:ex. H, pp. 10, 23 & 
 
         29).  Dr. Mahadevia further believed that claimant would require 
 
         medical attention and medication for the rest of her life (ex. H, 
 
         pp. 16, 32 & 34).  She is restricted from working in extremely 
 
         cold air, very high humidity, smoky environment, dusty 
 
         environment or in the presence of chemical irritants (ex. H, p. 
 
         17).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 14
 
         
 
         
 
              Claimant was 35 years old at the time of the injury and 37 
 
         years old at the time of the hearing.  At age 37 she is nearing 
 
         the peak of her earnings capacity.  Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial commissioner 34 
 
         (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa 
 
         Industrial Commissioner Report 426 (1981); McCoy v. Donaldson 
 
         Company, Inc., file numbers 782670 & 805200 (Appeal Decision 
 
         April 28, 1989).
 
         
 
              Claimant's limited education of completing only the tenth 
 
         grade and not obtaining a GED, limits her employment 
 
         opportunities in the competitive employment market.
 
         
 
              The fact that claimant has sustained a work injury and 
 
         litigated a workers' compensation claim coupled with her 
 
         impairment rating and restrictions will restrict her 
 
         employability in the employment market.
 
         
 
              Claimant is foreclosed from returning to grinding, 
 
         polishing and fluting.  These are primarily the jobs offered by 
 
         this employer for employees.  Michael v. Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe 
 
         Products Co., I Iowa Industrial Commissioner Report 282 (1984).
 
         
 
              Claimant is further restricted from returning to her former 
 
         employments in the electronics industry which normally require 
 
         soldering or working in soldering fumes.  Dr. Mahadevia has 
 
         restricted claimant from working in an environment which contains 
 
         fumes.  Therefore, claimant is precluded from returning to her 
 
         previous employments in the electronics industry which require 
 
         soldering or working in an environment with soldering fumes in 
 
         it.
 
         
 
              Claimant is further precluded from employments in extremely 
 
         cold air, high humidity situations, smoky environments, dusty 
 
         environments and environments with various chemical irritants.  
 
         These restrictions eliminate an extremely large portion of the 
 
         available competitive employment market, especially for persons 
 
         without special education or skills.
 
         
 
              Claimant is highly motivated to work because she is the 
 
         sole support of herself and her two dependant children.  She has 
 
         frequently worked under adverse situations where it was not 
 
         particularly advisable for her to do so, but according to her 
 
         testimony, necessity compelled her to do so.
 
         
 
              Claimant previously earned about $5 per hour in the 
 
         electronics industry and for employer.  She now earns $13.26 per 
 
         hour for her current employer.  Even though claimant has not 
 
         suffered an actual loss of earnings, she has demonstrated a 
 
         significant
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 15
 
         
 
         
 
         loss of earning capacity based upon all of the foregoing 
 
         considerations.
 
         
 
              Industrial disability is loss of earnings capacity, rather 
 
         than actual earnings.  Impairment of physical capacity creates an 
 
         inference of lessened earning capacity.  The basic element to be 
 
         determined is loss of earning capacity rather than lack of actual 
 
         wages or earnings in a specific occupation.  Holmquist v. 
 
         Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa Appeals 1977); 
 
         100 A.L.R. 3rd 143; 2 Larson Workmen's Compensation Law, SS57.21, 
 
         57.31. While postinjury earnings create a presumption of earning 
 
         capacity, they are not synonymous with earning capacity. 2 
 
         Larson, id.  Based on claimant's age, education, and inability to 
 
         return to work for this employer; inability to return to work due 
 
         to soldering fumes in the electronics industry; and her inability 
 
         to work in cold, humid, dusty or chemically irritant 
 
         environments; claimant's loss of earning capacity is quite 
 
         substantial.
 
         
 
              Furthermore, Dr. Mahadevia, the board certified internist 
 
         and pulmonologist stated that claimant will require medical 
 
         treatment and medication for the rest of her life.  He said, "I 
 
         do not see complete recovery."
 
         
 
              Wherefore: (1) based on the foregoing considerations; (2) 
 
         all of the evidence presented in this case; (3) and all of the 
 
         factors used to determine industrial disability, Olson, 255 Iowa 
 
         1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven 
 
         Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
         Decisions 654 , 658 (Appeal Decision February 28, 1985); and (4) 
 
         employing agency expertise [Iowa Administrative Procedure Act 
 
         17A.14(5)]; it is determined that claimant has sustained an 
 
         industrial disability of 35 percent to the body as a whole.
 
         
 
              Claimant presented certain medical expenses, specifically, 
 
         medications.  She testified that these had been paid by her 
 
         current health insurance provider.  They cannot be determined by 
 
         this decision as owing by defendants because medical expenses 
 
         were not designated as a hearing issue in this case.  However, it 
 
         is noted that the parties stipulated at paragraph eight of the 
 
         prehearing report that claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27 either had been or will be paid by 
 
         defendants.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              That claimant was employed by employer from August 31, 1987 
 
         through September 4, 1987.
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 16
 
         
 
         
 
              That during that period of time claimant was exposed to 
 
         cemented carbide, which she breathed and which came in contact 
 
         with her skin.
 
         
 
              That claimant sustained severe skin rashes to her hands, 
 
         arms, eyes and face accompanied by severe swelling of these 
 
         parts.
 
         
 
              That claimant developed a severe cough, and expectorated 
 
         phlegm and blood.
 
         
 
              That Dr. Mahadevia, the pulmonary specialist, stated that 
 
         claimant's pneumonia two years prior to this injury and 
 
         claimant's smoking habits were not the cause of these complaints.
 
         
 
              That Dr. Mahadevia said that claimant's pulmonary 
 
         complaints were due to exposure to cemented carbide while working 
 
         for this employer.
 
         
 
              That Dr. Mahadevia said that claimant has sustained an 
 
         impairment of between 10 to 20 percent to the body as a whole.
 
         
 
              That claimant cannot return to work for this employer or 
 
         the electronics industry where there are fumes.
 
         
 
              That Dr. Mahadevia restricted claimant from working in 
 
         cold, humid, dusty, or chemical environments.
 
         
 
              That claimant testified that she is sensitive to soap, 
 
         detergents, perfumes and candle scents which affect her breathing 
 
         and cause her to cough.
 
         
 
              That claimant testified that if she climbs stairs or lifts 
 
         heavy objects, it is extremely difficult for her to breathe.
 
         
 
              That claimant has displayed intense motivation to work to 
 
         support herself and her two minor children and requested a 
 
         release from the doctor so that she could return to work on 
 
         October 26, 1987 with a new employer.
 
         
 
              That Dr. Mahadevia testified that claimant would probably 
 
         require medical attention and prescription drugs as a result of 
 
         this injury for the rest of her life.
 
         
 
              That claimant has sustained an industrial disability of 35 
 
         percent to the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 17
 
         
 
         
 
              That claimant sustained an injury on September 7, 1987, 
 
         which arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant sustained an industrial disability of 35 
 
         percent to the body as a whole.
 
         
 
              That claimant is entitled to 175 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred seventy-five 
 
         (175) weeks of permanent partial disability benefits at the rate 
 
         of one hundred thirty-five and 51/100 dollars ($135.51) per week 
 
         in the total amount of twenty-three thousand seven hundred 
 
         fourteen and 25/100 dollars ($23,714.25) commencing on October 
 
         26, 1987 as stipulated to by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the costs of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 13th day of March, 1990.
 
         
 
         
 
         
 
         
 
                                               WALTER R. McMANUS, JR.
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Burton Fagen
 
         Attorney at Law
 
         2535 Tech Drive #206
 
         Bettendorf, Iowa 52722
 
         
 
         
 
         
 
         LAMP VS.  M.A. FOR MANUFACTURING CO.
 
         Page 18
 
         
 
         
 
         Mr. Patrick W. Driscoll
 
         Attorney at Law 
 
         444W Davenport Bank Bldg
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1106; 51108.50; 51401; 
 
         51402.20; 
 
                                               51402.30; 51402.40; 
 
         51402.60; 51803 
 
                                               Filed March 12, 1990
 
                                               Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARLA M. LAMP,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 855487 
 
         M.A. FORD MANUFACTURING CO.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         AETNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1106; 51108.50
 
         
 
              The parties stipulated that claimant sustained an injury 
 
         between September 1, 1987 and September 4, 1987.  The decision 
 
         determines the injury occurred on September 7, 1987, the day 
 
         claimant was forced to leave work because of the injury in line 
 
         with the McKeever determination of injury date.  This was to give 
 
         certainty and definiteness to the injury in the event a definite 
 
         and certain date should be needed.
 
         
 
         51401; 51402.20; 51402.30; 51402.40; 51402.60
 
         
 
              The only treating physician for all practical purposes, a 
 
         board certified internist and board certified pulmonologist, 
 
         determined that claimant's exposure to carbide dust and spray 
 
         containing carbide dust was the cause of injury and the injury 
 
         was the cause of her permanent disability.  Pneumonia two years 
 
         ago and cigarette smoking were not material contributing factors.
 
         
 
         51803
 
         
 
              Claimant was: (1) awarded 10 to 20 percent permanent 
 
         impairment by treating physician; (2) was precluded from the 
 
         employment at the time of the injury and most of her previous 
 
         employments in the electronics industry; (3) was restricted from 
 
         working in cold, humid, dusty, or chemical environments; and (4) 
 
         the treating physician said that she will never recover from this 
 
         injury and she will require pulmonary treatment and medications 
 
         for it for the rest of her life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WANDA LaFLEUR,                :
 
                                          :
 
                 Claimant,                :         File No. 855490
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            GRIFFIN PIPE PRODUCTS CO.,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed November 23, 1987.  Claimant sustained an 
 
            injury arising out of and in the course of her employment 
 
            stipulated to be November 12, 1987.  She now seeks benefits 
 
            under the Iowa Workers' Compensation Act from defendant 
 
            self-insured employer Griffin Pipe Products.
 
            
 
                 Hearing on the arbitration petition was had in Council 
 
            Bluffs, Iowa, on June 28, 1989.  The record consists of 
 
            joint exhibits 1 through 56 and the testimony of claimant 
 
            and Toni Weiss.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report as supplemented by 
 
            representations of counsel, the parties have stipulated:  
 
            that claimant sustained an injury on November 12, 1987, 
 
            arising out of and in the course of her employment with 
 
            Griffin Pipe Products Company; that if the injury caused 
 
            permanent disability, claimant has sustained an industrial 
 
            disability to the body as a whole; that the appropriate rate 
 
            of compensation is $284.79 per week; that medical benefits 
 
            are no longer in dispute; that defendant paid claimant 84 
 
            weeks, 3 days of compensation at the stipulated rate prior 
 
            to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused temporary or permanent disability and, if 
 
            so, the extent of each and the commencement date of the 
 
            latter; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant was age 41 at the time of hearing.  Although 
 
            she completed only the eighth grade, she has since obtained 
 
            a General Equivalency Diploma.  In addition, she has taken 
 
            courses in business and financial management and taken 
 
            schooling in preparation for obtaining a realtor's license 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            (claimant twice failed the realtor's license test, and has 
 
            not taken the test a third time).  She also has had brief 
 
            training in a key punch course.
 
            
 
                 Claimant has a quite varied work history.  She worked 
 
            as an elevator operator for one year at age 15.  She has 
 
            engaged in self-employment in a carpentry/masonry/plumbing/ 
 
            decorating/refinishing business.  She worked in a catering 
 
            business for four and one-half years.  She has been 
 
            sporadically self-employed in a lawn service enterprise.  
 
            She and her former husband have worked as lumberjacks.  
 
            Claimant managed a 25-unit apartment building for 
 
            approximately four and one-half years.  Claimant worked as a 
 
            clerk and then assistant manager for a large discount 
 
            department store.  She has worked as a nurse's aide and as 
 
            night supervisor for a security business.  With defendant, a 
 
            pipe manufacturing company, claimant has held numerous 
 
            positions involving heavy labor in the forging and 
 
            manufacture of heavy metal pipe.  Claimant has worked as a 
 
            waitress, cashier, ticket taker and cook for a resort and 
 
            has worked as a barkeeper/manager, baker, and janitor.  
 
            Claimant is able to operate a forklift, heavy earth moving 
 
            equipment, farm equipment and has a chauffeur's license.
 
            
 
                 Prior to the subject work injury, claimant had 
 
            something of a history of back problems and muscle pulls.  
 
            On June 11, 1979, she filed an original notice and petition 
 
            alleging a work injury to the back of September 7, 1978.  
 
            She was at that time employed by K-Mart Corporation.  
 
            Claimant eventually entered into a compromise special case 
 
            settlement under Iowa Code section 85.35, approved by a 
 
            deputy industrial commissioner on May 29, 1981.  Claimant 
 
            was treated by A. M. Romano, M.D., and other physicians with 
 
            respect to this injury.  Neither Dr. Romano, James Cousins, 
 
            M.D., nor Behrouz Rassekh, M.D., found permanent injury to 
 
            either the back or neck.  However, Dr. Cousins suggested a 
 
            50-pound lifetime lifting restriction because of claimant's 
 
            physical stature.  Dr. Romano concurred in that limitation.  
 
            Dr. Romano's diagnosis was traumatic myositis with lumbar 
 
            and cervical spinous musculature.  Claimant was also seen on 
 
            June 4, 1979 with respect to this injury by Dennis R. Green, 
 
            D.C.  Dr. Green noted that claimant was five feet, one and 
 
            one-half inches tall and weighed 113 pounds.  He diagnosed 
 
            (1) chronic subluxation of the sacroiliac and lumbosacral 
 
            articulations and strain of the paraspinal musculature; (2) 
 
            chronic strain of the cervical paraspinal musculature with 
 
            resultant intermittent headache; (3) chronic strain of the 
 
            dorsal spine; and, (4) exacerbative myositis involving the 
 
            cervical, dorsal, and lumbosacral paraspinal musculature.  
 
            Dr. Green estimated claimant to have sustained a permanent 
 
            disability of five percent.
 
            
 
                 Claimant was seen for evaluation on April 16, 1979 by 
 
            Leonard E. Weber, M.D., of the Department of Neurology, 
 
            Creighton-Nebraska Neurology Program.  He noted that 
 
            claimant had been injured approximately one year before at 
 
            K-Mart while throwing a box and again in September, 1978.  
 
            Further, he noted that claimant had injured her back ten 
 
            years before while lifting a patient as a nurse's aide, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            resulting in the sudden onset of low back pain of an aching 
 
            quality which persisted approximately ten months.  Claimant 
 
            on this occasion was hospitalized for three weeks and was 
 
            thereafter intermittently troubled for a time by foot drop 
 
            on the right side.  Dr. Weber found claimant's neck pain in 
 
            association with an alteration of sensation in the territory 
 
            supplied by the right greater occipital nerve to be 
 
            compatible with occipital neuralgia, secondary to injury of 
 
            the right greater occipital nerve.  Claimant's history of a 
 
            lifting injury as a nurse's aide was typical of a herniated 
 
            intervertebral disc, most likely at L4,5 and the September 
 
            1978 injury was compatible with a herniated disc at L2-3.  
 
            As far as prognosis, Dr. Weber opined that both conditions 
 
            may continue to be chronic problems.
 
            
 
                 Claimant appeared at the emergency room of Mercy 
 
            Hospital in Council Bluffs, Iowa, on January 3, 1983.  She 
 
            complained of falling down three steps at a friend's home on 
 
            that date and complained of left flank, upper back and right 
 
            upper arm pain.  X-rays of the left ribs were negative.  
 
            Although claimant denies recollection of this incident, the 
 
            hospital records are more convincing.
 
            
 
                 Office notes of Dr. Romano dated July 20, 1987, show 
 
            that claimant walked stiffly as if in distress and had 
 
            limitation of motion of the neck in flexion and extension.  
 
            Rotation of the chin was not limited, but bending the head 
 
            to the side caused pain to the opposite side, more on the 
 
            right than on the left.
 
            
 
                 Claimant also complained of a rib injury in September, 
 
            1987.  Although she testified to one or more fractured ribs, 
 
            Dr. Romano found no evidence of fracture, but did find 
 
            contusion on the right side.  His notes of September 25 show 
 
            that, when he refused to enter into the argument of whether 
 
            the injury occurred at work or at home, claimant stormed out 
 
            of the office without examination.
 
            
 
                 When the work injury occurred, claimant was running 
 
            six-inch pipe to the after furnace from the furnace.  While 
 
            pulling a pipe with a hook, the hook slipped and the pipe 
 
            "picked up" claimant and dropped her to the floor.  Claimant 
 
            described losing consciousness and being incontinent.  After 
 
            a short rest, claimant continued working until relief 
 
            arrived.  Thereafter, she was taken to a local hospital in 
 
            "agony" from a severe headache.
 
            
 
                 Emergency room records of November 12, 1987 from Mercy 
 
            Hospital in Council Bluffs show that claimant appeared two 
 
            and one-half hours after her fall complaining of headache, 
 
            thoracic and lumbar pain, but no numbness or tingling in the 
 
            extremities.  Radiological examination performed by D. T. 
 
            Van de Water, M.D., on that date showed normal lumbar spine, 
 
            no definite abnormality of the thoracic spine, and no 
 
            definite abnormality of the cervical spine.  However, the 
 
            frontal view of the cervical spine showed a slight leftward 
 
            tilt of the upper portion of the surgical region and Dr. Van 
 
            de Water was unclear whether this was positional or related 
 
            to muscle spasm.  The emergency room physician ordered that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant not return to work until seen by a physician for 
 
            follow-up and referred her to Charles V. Edwards, M.D.
 
            
 
                 Claimant was seen again at the emergency room on 
 
            November 21 complaining of burning pain between the shoulder 
 
            blades and an ache in the right arm and loss of bladder 
 
            control.  In her testimony, claimant complained of 
 
            persistent problems with incontinence.
 
            
 
                 Dr. Edwards wrote defendant on March 14, 1988 to note 
 
            that the type of pain claimant complained of, the 
 
            distribution of that pain and the factors that alleviate or 
 
            exacerbate the pain "do not follow any logically physical 
 
            deficits or injuries."  Dr. Edwards opined that claimant had 
 
            a great deal of psychological functional complaints and what 
 
            he termed "overlay" of many of her physical problems and 
 
            that emotional factors aggravated and confused any physical 
 
            complaints.  Dr. Edwards did not feel he could offer 
 
            claimant any more assistance and that she needed psychiatric 
 
            care or at least psychiatric counseling and evaluation.  He 
 
            further opined that claimant's psychological status should 
 
            not "come under workmen's compensation."  In her testimony, 
 
            claimant indicated dissatisfaction with Dr. Edwards' care.
 
            
 
                 On November 19, 1987, claimant was seen for evaluation 
 
            of pain by Dr. Rassekh.  Two days later, Dr. Rassekh wrote 
 
            that claimant was very anxious, had some limitation of neck 
 
            motion as well as some mild cervical muscle spasms.  
 
            Claimant had no spasm of the lumbar musculature, but 
 
            anti-flexion of the spine was slightly restricted.  The 
 
            extremities showed no sensory motor deficit and reflexes 
 
            were symmetrical.  Dr. Rassekh's impression was of soft 
 
            tissue injury, stress incontinence.  Dr. Rassekh recommended 
 
            that claimant continue with mild analgesic and a medication 
 
            for anxiety and was to continue wearing a cervical collar.  
 
            He believed that claimant should be treated conservatively, 
 
            but felt the prognosis of her returning to work was guarded.  
 
            Claimant also testified to dissatisfaction with Dr. 
 
            Rassekh's treatment.
 
            
 
                 Claimant was seen again at the Mercy Hospital emergency 
 
            room on January 18, 1988.  She complained of pain in the 
 
            right jaw, between her shoulder blades, in the right arm and 
 
            in the right leg.  Examination showed much tenderness with 
 
            spasm on the right of the neck and tenderness with spasm at 
 
            the lower thoracic and upper lumbar regions of the back.
 
            
 
                 On February 13, 1988, Joel D. Elson, M.D., performed 
 
            magnetic resonance imaging.  He found the examination of the 
 
            lower cervical and upper thoracic spine between C4 and T6 to 
 
            be normal with no findings of disc herniation or spinal 
 
            stenosis at any of the intervertebral disc space levels.
 
            
 
                 Claimant was also seen at the Mercy emergency room on 
 
            April 27, 1988.  She complained of pain in the upper back, 
 
            neck and right arm with shooting pain down the right leg.
 
            
 
                 Claimant was also treated by Ronald A. Cooper, M.D.  
 
            Dr. Cooper wrote on March 2, 1988 to Dr. Edwards.  He noted 
 
            that MRI and EMG were completely normal and that, combined 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            with his examination, he elected not to proceed with any 
 
            further studies as he could find no definite neurological 
 
            deficit.  He suggested that claimant's pain "remains 
 
            musculoskeletal in origin."  He found nothing to suggest a 
 
            radicular component or anything to involve spinal cord 
 
            dysfunction and suggested that it was "very difficult" to 
 
            say how much of claimant's difficulty was related to 
 
            underlying situational and emotional factors.  On June 3, 
 
            1988, Dr. Cooper wrote claimant's then attorney to note she 
 
            had been seen once only, on January 18, 1988.  He noted that 
 
            claimant complained of constant headache and back pain, 
 
            interscapular pain, lower back pain, bilateral upper 
 
            extremity pain and diffuse numbness in the right upper 
 
            extremity.  Dr. Cooper could find no weakness, reflex 
 
            changes or any definite sensory changes to suggest problems 
 
            with isolated nerve dysfunction or nerve root dysfunction.  
 
            He reiterated that EMG and MRI testing was normal and that 
 
            claimant's pain was on a musculoskeletal basis without any 
 
            definite neurologic deficit.  Again, claimant testified to 
 
            dissatisfaction with Dr. Cooper's treatment.
 
            
 
                 Claimant was also seen for evaluation by Ronald K. 
 
            Miller, M.D., on April 29, 1988.  Dr. Miller is an 
 
            orthopaedic surgeon.  Claimant related problems with pain in 
 
            the neck, right shoulder, thoracic area and low back.  She 
 
            further described pain in the right temporal mandibular 
 
            joint, right ear, right side of the head, headaches, upper 
 
            thoracic area, neck and right arm.  Although claimant made 
 
            complaint of pain upon examination, Dr. Miller found right 
 
            and left lateral bending to be normal as were spinal 
 
            extension, spinal flexion, right and left lateral rotation, 
 
            shoulder elevation on the right and left, biceps and triceps 
 
            function, hand and neuromuscular function in the forearm, 
 
            peripheral pulses, deep tendon reflexes on both extremities.  
 
            Films of the right shoulder, cervical spine, thoracic spine 
 
            and lumbar spine were normal.  Claimant was extensively 
 
            tested with a tuning fork, showing pain reactions which Dr. 
 
            Miller apparently found to be inconsistent with typical pain 
 
            distributions.  He concluded:
 
            
 
                 This woman in short does not present with any 
 
                 demonstrable evidence of neurological or vascular 
 
                 deficit.  She does have what we felt to be a 
 
                 normal range of motion of the cervical spine and 
 
                 as judged by the tuning fork test I would think 
 
                 she is either overtly psychotic or malingering.
 
            
 
                 Claimant was also treated by neurological surgeon 
 
            Daniel M. McKinney, M.D.  Dr. McKinney wrote on July 18, 
 
            1988 that claimant's back was structurally sound and that no 
 
            surgical treatment was required, but that he believed she 
 
            had suffered a straining injury to ligaments and muscles of 
 
            the back.  He had no further recommendations regarding 
 
            treatment, other than to possibly stay with a light exercise 
 
            program and try to gradually increase tolerance.  Dr. 
 
            McKinney further noted that claimant's job description 
 
            called for lifting weights up to 60 pounds, and frequent 
 
            lifting of weights up to 40 pounds.  He felt it unlikely 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            that claimant would be able to return to this work in the 
 
            future in view of the strain injury to the back and 
 
            persistence of symptoms.
 
            
 
                 Dr. McKinney saw claimant again on January 18, 1989.  
 
            He found that she had made considerable improvement, 
 
            although continuing to have intermittent interscapular pain 
 
            and pain about the right rib cage and mid-lumbar region.  On 
 
            examination, he found no weakness, reflex change or sensory 
 
            loss.  Deep tendon reflexes were all active and symmetrical 
 
            and no pathological reflexes were elicited.  Station and 
 
            gait were normal, but there was mild increased tension in 
 
            the paravertebral muscles of the lumbar spine.  He believed 
 
            that claimant continued to suffer from cervical and lumbar 
 
            strains, a diagnosis comparable to a myofascial syndrome.  
 
            While it was "possible" that claimant might be able to 
 
            return to her previous strenuous job, he felt it would be 
 
            better for her to find light or sedentary employment.
 
            
 
                 Dr. McKinney wrote again on February 16, 1989 that 
 
            claimant "may have some weakness of her spine as a result of 
 
            her work related injury."  He assigned claimant a permanent 
 
            partial "disability" in the neighborhood of five percent of 
 
            the body as a whole.
 
            
 
                 Claimant also testified to a back injury on June 30, 
 
            1988, at her daughter-in-law's house while she was dressing.  
 
            She testified further to a lengthy list of assorted painful 
 
            areas, particularly from the jaw to the neck.  She 
 
            complained of choking and gagging.  She believed that she is 
 
            slowly getting better and that her loss of strength is 
 
            resolving.  She believed that she is emotionally improved 
 
            and performs such chores as yard work, vacuuming, picking up 
 
            the house, taking short walks and doing paperwork.  She 
 
            complained of an inability to do laundry, twist at the 
 
            waist, work eight hours in a row, and particularly to 
 
            continue her heavy employment with defendant.  Claimant has 
 
            not applied for any work whatsoever since the work injury.
 
            
 
                 Claimant was evasive and nonresponsive during much of 
 
            her testimony.  Her demeanor was not such as to inspire 
 
            confidence in the accuracy and truthfulness of that 
 
            testimony.  Claimant felt that Dr. Miller and Dr. Cooper 
 
            were biased and unethical, that Dr. Rassekh was 
 
            antagonistic, that she lacked confidence in Dr. Edwards, and 
 
            she testified further to problems getting along with a 
 
            previous supervisor and her first attorney (Sheldon M. 
 
            Gallner, who still appears as an attorney of record in this 
 
            matter).
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated to a work injury on 
 
            November 12, 1987.  However, they dispute whether the injury 
 
            caused temporary or permanent disability.  The injury was 
 
            itself a traumatic event and caused immediate 
 
            hospitalization.  The emergency room physician took claimant 
 
            off work, which is indicative of a causal relationship 
 
            between the injury and the immediate loss of time from 
 
            employment.  No physician has indicated that claimant was 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            not at least temporarily disabled by reason of the work 
 
            injury.  Dr. McKinney attributes a permanent impairment to 
 
            the work injury.  Dr. Cooper, while not finding objective 
 
            indications of permanent impairment, suggested that claimant 
 
            did suffer musculoskeletal pain.  Dr. Rassekh believed that 
 
            claimant sustained a soft tissue injury.
 
            
 
                 The greater weight of the evidence establishes that 
 
            claimant suffered temporary disability causally related to 
 
            the work injury.
 
            
 
                 Under Iowa Code sections 85.32 and 85.33, temporary 
 
            total disability is compensable beginning on the date of 
 
            injury and until the employee has returned to work or is 
 
            medically capable of returning to substantially similar 
 
            employment, whichever first occurs.
 
            
 
                 Claimant has not returned to work, and pursuant to the 
 
            recommendations of Dr. McKinney, probably will not return to 
 
            the same or substantially similar employment.  Dr. McKinney, 
 
            a treating physician, assigned claimant an impairment rating 
 
            on February 16, 1989.  Assignment of a permanent impairment 
 
            rating implies that further medical improvement is not to be 
 
            anticipated.  If claimant had established entitlement to 
 
            permanent partial disability benefits, this would end the 
 
            healing period.  Claimant had a preexisting medical 
 
            restriction that would appear to bar a return to this work.  
 
            Therefore, it is held that claimant's temporary total 
 
            disability began on November 12, 1987 and ended on February 
 
            16, 1989, a total of 66 weeks, 1 day.
 
            
 
                 The evidence is closer as to whether the work injury 
 
            caused permanent disability.  Dr. Edwards, a treating 
 
            physician, noted that the distribution of pain and the 
 
            factors that alleviate or exacerbate pain do not follow any 
 
            logical pattern and suggested that claimant had a great deal 
 
            of psychological "overlay."  Dr. Rassekh felt that the 
 
            prognosis of claimant's returning to work was guarded, but 
 
            did not assess permanent impairment or suggest permanent 
 
            medical restrictions.  Dr. Cooper could find no objective 
 
            signs of permanent impairment and found it "very difficult" 
 
            to determine how much of claimant's problems were related to 
 
            underlying situational and emotional factors.  As a result 
 
            of inconsistencies in claimant's physical responses, 
 
            particularly pain reactions during the tuning fork testing, 
 
            Dr. Miller flatly suggested that claimant was overtly 
 
            psychotic or malingering.  Dr. McKinney believed that 
 
            claimant had suffered a straining injury, but seems to base 
 
            that primarily on claimant's subjective complaints rather 
 
            than clinical findings.  When he saw claimant on January 18, 
 
            1989, the only clinical evidence of permanent impairment was 
 
            mild increased tension in the paravertebral muscles of the 
 
            lumbar spine.  It is unclear whether Dr. McKinney was aware 
 
            of claimant's previous injury as described by Dr. Weber in 
 
            1979.  As will be recalled, Dr. Weber thought claimant had a 
 
            lifting injury typical of a herniated disc at L4-5 or L2-3 
 
            and thought that both problems might be chronic.
 
            
 
                 Given that this observer did not find claimant to be a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            credible witness, given further her expressed 
 
            dissatisfaction with numerous physicians, a previous 
 
            attorney and a previous supervisor, given the concerns 
 
            several physicians have expressed as to claimant's 
 
            psychological status (her testimony that her psychological 
 
            status was improved also implies that she recognizes having 
 
            some problem before the improvement), and giving particular 
 
            weight to the fact that two separate physicians have found 
 
            that her complaints of pain do not correspond with known 
 
            distributional patterns, it is held that claimant has failed 
 
            to meet her burden of proof in establishing permanent 
 
            disability.
 
            
 
                 Because defendants have voluntarily paid benefits in 
 
            excess of the award of temporary disability herein, claimant 
 
            shall take nothing further.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing further from this 
 
            proceeding.
 
            
 
                 Costs of this action shall be assessed to claimant 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Ms. Wanda LaFleur
 
            7040 Park Meadow Plaza
 
            Lot #474
 
            Omaha, Nebraska  68122
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            P.O. Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Alan H. Kirshen
 
            Attorney at Law
 
            661 North 50th Street
 
            Omaha, Nebraska  68132
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            P.O. Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1402.40, 1801, 1802
 
                                               Filed July 10, 1990
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WANDA LaFLEUR,                :
 
                                          :
 
                 Claimant,                :         File No. 855490
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            GRIFFIN PIPE PRODUCTS CO.,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1402.40
 
            Soft tissue back injury found to have caused temporary total 
 
            but not permanent disability.
 
            
 
            1801, 1802
 
            Temporary total disability found to end when claimant 
 
            reached maximum medical improvement where she would not be 
 
            anticipated to return to work due to preexisting medical 
 
            restrictions that were previously ignored.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANET HANDRICK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855601
 
            SISTERS OF MERCY,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Janet 
 
            Handrick against Sisters of Mercy and its insurance carrier, 
 
            CNA Insurance Companies, based upon an injury that occurred 
 
            on February 25, 1987.  Claimant seeks compensation for 
 
            healing period and permanent disability resulting from the 
 
            February 25, 1987 injury.  She claims that she is totally 
 
            disabled and relies upon the odd-lot doctrine.  The rate of 
 
            compensation is also an issue to be determined.
 
            
 
                 The case was heard at Tipton, Iowa on November 29, 
 
            1990.  The evidence consists of testimony from Janet 
 
            Handrick and jointly offered exhibits 1 through 9.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Janet Handrick is a 45-year-old married lady who lives 
 
            at Davenport, Iowa with her husband.  Janet obtained a 
 
            degree in nursing in 1966 and had customarily been employed 
 
            as a hospital nurse throughout her adult life.  She had been 
 
            employed at Mercy Hospital in Davenport, Iowa, the defendant 
 
            employer in this proceeding, since April 1970.  The 
 
            employment was interrupted for approximately two years 
 
            coinciding with the birth of her son.  She then worked 
 
            part-time from approximately 1977 until 1983 when she 
 
            resumed full-time work at the hospital.
 
            
 
                 At the time of injury, Janet was paid every two weeks 
 
            at the rate of $11.59 per hour.  She had worked a total of 
 
            490.5 hours during the 12 weeks preceding the week in which 
 
            the injury occurred.  The thirteenth week prior to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            injury includes the week of Thanksgiving in which she did 
 
            not work her normal number of hours.  The record does not 
 
            contain the number of hours that she worked during the week 
 
            before the week which included Thanksgiving.  Claimant's 
 
            work week, as shown in exhibit 9, ran from Monday through 
 
            Sunday.  Based upon the 12 weeks which are in the record, 
 
            her normal work week averaged 40.875 hours.  If the seven 
 
            days following Thanksgiving were to be included to 
 
            constitute the thirteenth week, as reflected on exhibit 9, 
 
            the average weekly earnings would be a few cents higher, but 
 
            would still round to $474.00.  The week which included 
 
            November 28, 29 and 30 was not a typical work week.  It did 
 
            not fairly represent the claimant's customary hours of work 
 
            and customary earnings.
 
            
 
                 Janet Handrick injured her back on February 25, 1987.  
 
            Thereafter, she continued working despite her complaints 
 
            until June 24, 1987.  Conservative treatment was provided.  
 
            On August 17, 1987, it was decided between Janet and her 
 
            treating neurosurgeon that she would attempt a return to 
 
            work (exhibit 7, page 3).  Claimant did resume employment 
 
            from August 19, 1987 through September 27, 1987, but 
 
            remained symptomatic.  On September 29, 1987, Richard A. 
 
            Roski, M.D., a neurosurgeon, performed bilateral 
 
            microdiscectomy surgery at the L5-S1 level of her spine in 
 
            order to relieve the herniated disc which had been 
 
            identified through diagnostic testing (exhibit 6, page 9).
 
            
 
                 Claimant initially experienced good relief from the 
 
            surgery and was progressing well when discharged from the 
 
            hospital on October 3, 1987 (exhibit 6, page 9).  On 
 
            November 30, 1987, Dr. Roski indicated in his notes that she 
 
            has an excellent result and would be returning to work the 
 
            following day (exhibit 7, page 7).
 
            
 
                 Claimant worked from December 1, 1987 through February 
 
            3, 1988 and then again went off work.  She has not resumed 
 
            employment since February 4, 1988.
 
            
 
                 After claimant's symptoms recurred, she underwent 
 
            diagnostic tests.  An MRI scan performed January 25, 1988 
 
            was interpreted as showing a herniated disc at the mid-line 
 
            and to the right at the L5-S1 level of her spine and also a 
 
            bulging disc at the L-4 level (exhibit 6, page 34).  
 
            Subsequent diagnostic tests did not, however, corroborate 
 
            those findings.  No objective evidence of nerve root 
 
            impingement was found.  It was suggested that post-operative 
 
            scarring was present (exhibit 8).
 
            
 
                 Dr. Roski noted on January 5, 1989 that he was unable 
 
            to rate claimant's permanent impairment (exhibit 7, page 
 
            15).  He reported on April 20, 1989 that physical 
 
            rehabilitation efforts were being made (exhibit 7, page 16).  
 
            On June 8, 1989, he prescribed additional diagnostic testing 
 
            in the form of an EMG and a physical therapy evaluation 
 
            (exhibit 7, page 7).  A note dated August 7, 1989 indicates 
 
            that claimant would be engaging in some efforts to get back 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            to work.  No further treatment or scheduled office visits 
 
            were planned (exhibit 7, page 7).  In a report dated August 
 
            3, 1989, Dr. Roski indicated that he felt that claimant 
 
            would not obtain any benefit from further physical therapy 
 
            or surgery.  He reported that she was unable to perform work 
 
            which required repetitive bending, lifting or pulling 
 
            (exhibit 7, page 17).  On May 26, 1989, Robert J. Chesser, 
 
            M.D., reported that he suggested claimant obtain a physical 
 
            capacity evaluation and begin a work hardening program.  He 
 
            felt that it would possibly increase her capacity for work 
 
            slightly.  He rated her as having a 15 percent impairment of 
 
            the whole person (exhibit 1, pages 1-3).  Thereafter, 
 
            claimant did proceed through a physical therapy and work 
 
            hardening program (exhibits 2 and 4).  Consistent with the 
 
            August 3, 1989 report from Dr. Roski, it is found that it 
 
            was medically indicated on August 3, 1989 that further 
 
            significant improvement from the injury was not forthcoming.
 
            
 
                 Claimant has not resumed employment in any capacity.  
 
            She has not experienced a favorable result from surgery.   
 
            The condition of her back is unstable.  It was aggravated by 
 
            some relatively minor stresses and strains associated with 
 
            travel and extended sitting (exhibit 7, pages 7 and 8).  She 
 
            feels that her condition is worsening.  After thorough 
 
            evaluation, it has been recommended that she severely 
 
            restrict her activities such as standing or sitting to the 
 
            extent that she perform neither continuously for more than 
 
            15 minutes at a time.  She was determined to be able to make 
 
            full use of her hands, but was restricted in lifting to not 
 
            more than 10 pounds by one practitioner and 20 pounds by 
 
            another (exhibit 1, page 4; exhibit 2, pages 8 and 9).  Dr. 
 
            Chesser, in his May 26, 1989 report, indicated that claimant 
 
            was employable in a light or sedentary capacity (exhibit 1).  
 
            A functional capacity evaluation adopted by Dr. Roski 
 
            indicates that claimant is capable of sedentary work 
 
            (exhibit 5, pages 6 and 7).  When claimant was interviewed 
 
            on March 9, 1989 by representatives from Ellis and 
 
            Associates, a rehabilitation services provider, claimant 
 
            indicated that she was not favorable about returning to work 
 
            other than at a hospital.  Claimant indicated that she could 
 
            not financially afford to perform work other than that which 
 
            was in the employ of a hospital (exhibit 5, page 5).  Her 
 
            motivation to return to work and the degree of her expressed 
 
            symptoms is suspect.  Representatives from Ellis and 
 
            Associates performed a labor market survey in late October 
 
            1990 finding 22 potential jobs for a registered nurse such 
 
            as claimant which offered limited lifting and carrying 
 
            consistent with light work.  The survey resulted in 22 
 
            potential jobs being identified, of which 11 had current 
 
            openings.  The pay for those jobs ranged from approximately 
 
            $8.00 to $11.00 per hour (exhibit 5, pages 8-12).  Ellis and 
 
            Associates did not offer claimant any assistance in actually 
 
            obtaining any of the jobs which had been identified.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            Claimant feels that there are no jobs in the Quad Cities 
 
            area which she is capable of obtaining and performing.
 
            
 
                 Claimant has made some effort at searching for work.  
 
            The defendant employer refused to place her in any position 
 
            in its work force, despite the fact that it has a wide 
 
            variety of positions and many employees.  Most of the jobs 
 
            that Janet actually applied for were either jobs which 
 
            required lifting and other activities which obviously 
 
            exceeded her physical capabilities or jobs which did not 
 
            involve use of her nursing skills and training.
 
            
 
                 At the time of hearing, claimant was receiving Social 
 
            Security disability in the amount of $336 per month and 
 
            long-term disability benefits from her employer in the 
 
            amount of $359 every two weeks.
 
            
 
                                conclusions of law
 
            
 
                 With regard to the rate of compensation, weeks which do 
 
            not represent customary earnings are not used in computing 
 
            the 13 weeks under section 85.36(6).  Schotanus v. Command 
 
            Hydraulics, Inc., I Iowa Industrial Commissioner Report 294, 
 
            289 (1981); Lewis v. Aalf's Mfg. Co., I Iowa Industrial 
 
            Commissioner Report 206, 207 (App. Decn. 1980).  The record 
 
            in this case does not provide evidence of 13 full weeks 
 
            computed on the normal work week which ran from Monday 
 
            through Sunday.  The average weekly earnings are therefore 
 
            determined by taking one-twelfth of the 12 full weeks 
 
            immediately preceding the injury.  The gross average weekly 
 
            earnings are therefore determined to be $473.74, an amount 
 
            which rounds to $474.00.  When applied under the 1986 
 
            benefit schedule with claimant being married and entitled to 
 
            four exemptions, the rate of compensation is $296.10 per 
 
            week.  When computing the rate under the statute, the work 
 
            week which includes the day the injury occurred is excluded.  
 
            The first week to be counted is the work week which precedes 
 
            the one in which the injury occurred.
 
            
 
                 The entitlement to healing period ends at the earlier 
 
            of the three events specified in Code section 85.34(1).  In 
 
            this case, claimant has never successfully resumed her 
 
            employment and has likewise never regained her prior state 
 
            of health.  Healing period is therefore ended by determining 
 
            the point at which she reached maximum medical improvement.  
 
            She is entitled to be paid permanent partial disability 
 
            compensation rather than healing period during the two times 
 
            she attempted to resume work.  According to the stipulation 
 
            in the prehearing report, claimant is entitled to recover 
 
            healing period from June 24, 1987 through August 18, 1987, a 
 
            span of 8 weeks, from September 28, 1987 through November 
 
            30, 1987, a span of 9 and 1/7 weeks.  The final term of 
 
            healing period runs from February 4, 1988 through August 3, 
 
            1989, a span of 78 and 1/7 weeks.  The healing period ends 
 
            at the time the attending physician determines that the 
 
            employee has recovered as far as possible from the effects 
 
            of the injury.  It is not determined through hindsight in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            looking back to determine the point at which improvement 
 
            ceased.  Thomas v. William Knudson & Son, Inc., 394 N.W.2d 
 
            124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. 
 
            Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981).  The fact that 
 
            Robert Chesser provided an impairment rating on May 26, 1989 
 
            does not conclusively establish that the healing period 
 
            ended at that time, particularly since he recommended 
 
            further treatment.  It is also recognized that healing 
 
            period may be interrupted by returns to work and that when 
 
            such occurs, the compensation for permanent partial 
 
            disability is payable commencing at the end of the first 
 
            term of healing period.  Teel v. McCord, 394 N.W.2d 405 
 
            (Iowa 1986).  By the same token, medical treatment which is 
 
            basically maintenance in nature and does not improve the 
 
            individual's condition does not extend the healing period.  
 
            Castle v. Mercy Hosp., I Iowa Industrial Commissioner 
 
            Report 50 (1980).  Claimant has a permanent condition which 
 
            is susceptible to aggravation.  Every aggravation does not 
 
            result in additional healing period.  The physical therapy 
 
            which claimant received in late 1989 is deemed to have been 
 
            maintenance type of treatment rather than healing period.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  DeWall v. Prentice, 224 N.W.2d 428, 
 
            435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 
 
            1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
            516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
            Law, sections 57.21 and 57.31.
 
            
 
                 Janet Handrick is a middle-aged woman who is a 
 
            registered nurse.  She has a serious physical ailment, but 
 
            her physicians have not categorized her as being totally 
 
            disabled.  She is, however, limited to light or sedentary 
 
            work which permits her to change positions frequently.  A 
 
            vocational consultant identified a number of potential jobs, 
 
            but the record does not show claimant to have applied for 
 
            work with all the potential employers identified by the 
 
            vocational consultants.  It is recognized that even capable, 
 
            qualified individuals are not hired every time they apply 
 
            for a job.  Most employers have a number of applicants to 
 
            choose from for any position.  The individual who obtains a 
 
            job is an individual who has made a concentrated effort by 
 
            contacting every available employer and in essence makes a 
 
            full-time job out of seeking employment which is consistent 
 
            with the individual's qualifications and abilities.  The 
 
            record does not show that to have occurred in this case.  To 
 
            the contrary, the predominant portion of this claimant's 
 
            job-seeking activities has been directed at jobs which are 
 
            clearly inappropriate for her, either in the sense of the 
 
            physical requirements or in the sense that the jobs do not 
 
            make use of her professional expertise.  On the other hand, 
 
            the fact that the employer in this case did not make work 
 
            available to her is a strong indication that this claimant 
 
            has a very substantial degree of disability.  Sunbeam Corp. 
 
            v. Bates, 271 Ark. 385, 609 S.W.2d 102 (App. 1980); 2 Larson 
 
            Workmen's Compensation Law, section 57.61(b).  When an 
 
            employer such as the defendant employer in this case has a 
 
            widely varied and diverse work force and, based upon its 
 
            knowledge of the injured employee's qualifications, 
 
            experience and disability, makes the determination that the 
 
            injured employee is not capable of performing any of the 
 
            jobs in its work force, that determination is entitled to a 
 
            great deal of weight.  The employer in whose employ the 
 
            injury occurred has more reason to find work for the injured 
 
            employee than any other potential employer since the injured 
 
            employee's actual employment status is a major consideration 
 
            when determining the disability award.
 
            
 
                 An odd-lot employee is one whom an injury has made 
 
            incapable of obtaining employment in any well-known branch 
 
            of the labor market.  Such a worker is totally disabled if 
 
            the only services the worker can perform are so limited in 
 
            quality, quantity or dependability that a reasonably stable 
 
            market for the services does not exist.  Guyton v. Irving 
 
            Jensen Co., 373 N.W.2d 101 (Iowa 1985).  The agency has 
 
            interpreted the foregoing case as requiring an individual to 
 
            make a bona fide good faith effort to obtain employment 
 
            before the burden of proof with regard to the disability 
 
            issue shifts to the employer.  Brown v. Nissen Corp., file 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            number 837608 (App. Decn. 1989); Emshoff v. Petroleum 
 
            Transp. Services, file number 753723 (App. Decn. 1987).  The 
 
            search made by Janet Handrick does not constitute a bona 
 
            fide search of the type necessary to cause the burden of 
 
            proof to shift.
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is found that claimant does have the 
 
            capacity to perform light or sedentary work and that work 
 
            which makes use of her skills and expertise as a registered 
 
            nurse is routinely available in the geographical area of her 
 
            residence.  She will, however, have difficulty obtaining 
 
            work.  It will require a concentrated effort on her part.  
 
            Any employment which she obtains will most likely pay only a 
 
            fraction of what she would have been earning if she had 
 
            remained employed with the defendant employer.  When all the 
 
            pertinent factors of industrial disability are considered, 
 
            it is determined that Janet Handrick sustained a 60 percent 
 
            industrial disability as a result of the February 25, 1987 
 
            injury.  This entitles her to receive 300 weeks of 
 
            compensation under the provisions of Code section 
 
            85.34(2)(u).  The compensation is payable with 5 and 5/7 
 
            weeks thereof payable commencing August 19, 1987, with 9 and 
 
            2/7 weeks payable commencing December 1, 1987, and with the 
 
            balance payable commencing August 4, 1989.  The interrupted 
 
            permanent partial disability compensation is to allow for 
 
            the healing period compensation previously determined in 
 
            this decision.  An injured employee does not receive payment 
 
            of both healing period and permanent partial disability 
 
            compensation at the same time for the same injury.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Janet 
 
            Handrick ninety-five and two sevenths (95 2/7) weeks of 
 
            compensation for healing period at the rate of two hundred 
 
            ninety-six and 10/100 dollars ($296.10) per week with eight 
 
            (8) weeks thereof payable commencing June 24, 1987, with 
 
            nine and one-seventh (9 1/7) weeks thereof payable 
 
            commencing September 28, 1987, and with seventy-eight and 
 
            one-seventh (78 1/7) weeks thereof payable commencing 
 
            February 4, 1988.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay Janet 
 
            Handrick three hundred (300) weeks of compensation for 
 
            permanent partial disability at the rate of two hundred 
 
            ninety-six and 10/100 dollars ($296.10) per week with five 
 
            and five-sevenths (5 5/7) weeks thereof payable commencing 
 
            August 19, 1987, with nine and two-sevenths (9 2/7) weeks 
 
            thereof payable commencing December 1, 1987, and with the 
 
            remaining two hundred eighty-five (285) weeks payable 
 
            commencing August 4, 1989.
 
            
 
                 IT IS FURTHER ORDERED that defendants shall receive 
 
            credit for the amounts previously paid.  Any past due 
 
            amounts shall be paid in a lump sum together with interest 
 
            pursuant to Iowa Code section 85.30.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Building
 
            Davenport, Iowa  52801
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
            
 
 
            
 
 
 
 
 
                                               1802; 1803; 1804; 1807
 
                                               3001; 4100
 
                                               Filed March 25, 1991
 
                                               MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANET HANDRICK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 855601
 
            SISTERS OF MERCY,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            3001
 
            
 
                 Gross earnings were determined based upon the average 
 
            of 12, rather than 13, weeks preceding the injury.  The 
 
            thirteenth week was atypical and the record did not show the 
 
            earnings for what was actually the fourteenth week prior to 
 
            the injury, the one which should have been used.
 
            
 
            1802
 
            
 
                 Healing period held to end at the time medical 
 
            treatment ceased and it was medically indicated that further 
 
            improvement was not forthcoming.  An impairment rating had 
 
            been issued approximately two and one-half months earlier, 
 
            but the same report which issued the rating also recommended 
 
            further physical therapy.
 
            
 
            1803; 1804; 1807; 4100
 
            
 
                 Claimant, a registered nurse with a back injury which 
 
            prohibited any work which would have involved handling 
 
            patients, was found to have not made a bona fide effort to 
 
            search for employment where she applied only at nursing 
 
            homes, hospitals and restaurants, almost all of which were 
 
            jobs which were clearly beyond her physical capabilities.  
 
            She did not make bona fide efforts to obtain the light work 
 
            jobs which had been identified by the vocational consultants 
 
            retained by the employer or any other light work.  Claimant 
 
            had been awarded Social Security disability.  Claimant in 
 
            this case, a 45-year-old woman, was awarded 60 percent 
 
            permanent partial disability.  She was not motivated to find 
 
            employment other than as a hospital nurse.  The defendant 
 
            employer, a hospital, refused to provide any type of work 
 
            for her.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         STEVE LORENZ,
 
         
 
              Claimant,                      File No. 855644
 
         
 
         vs.                              A R B I T R A T I O N
 
         
 
         REES ASSOCIATES,                    D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Steve Lorenz, 
 
         claimant, against Rees Associates, employer, and The Hartford 
 
         Insurance Company, insurance carrier, to recover benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained June 22, 1987.  This matter comes before the 
 
         undersigned deputy industrial commissioner on a stipulated 
 
         record.
 
         
 
              The record in this case consists of four stipulated facts.
 
         
 
                                      ISSUE
 
         
 
              The sole issue presented for determination is whether 
 
         claimant is entitled to reimbursement of the three day waiting 
 
         period as provided by statute.
 
         
 
                                      FACTS
 
         
 
              Pursuant to the stipulation of facts filed with the 
 
         industrial commissioner October 4, 1988, claimant was injured 
 
         while working for defendant employer at 12:15 a.m. on June 22, 
 
         1987.  Claimant normally worked on the shift commencing at 11:00 
 
         p.m. and ending at 7:00 a.m.  Claimant was paid in full for the 
 
         shift during which he was injured.  Claimant was paid weekly 
 
         benefits for the period of June 26, 1987 through July,6, 1987.  
 
         Claimant returned to work at 11:00 p.m. on July 7, 1987.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The undersigned feels compelled to enter a caveat to this 
 
         decision.  First, it must be noted that the stipulated facts to 
 
         this case are conspicuously void of any medical evidence.  Since 
 
         it is accepted that the workers' compensation law should be 
 
         liberally construed in favor of the claimant to accomplish the 
 
         object and purpose of the legislation [Jacques v. Farmers Lumber 
 
         and Supply, 242 Iowa 548, 47 N.W.2d 236 (1951)] and that the law 
 
         should be construed in claimant's favor to accomplish the 
 
         humanitarian purposes of the workers' compensation law [Arnold v. 
 
         State, 233 Iowa 1, 6 N.W.2d 113 (1942)], the facts, as 
 

 
         
 
         LORENZ V. REES ASSOCIATES
 
         PAGE 2
 
         
 
         
 
         stipulated, are viewed in a light most favorable to the claimant. 
 
         Consequently, because claimant did not return to work before 
 
         11:00 p.m. on July 7, 1987, it is accepted claimant could not 
 
         return before such date and time.  This decision is peculiar to 
 
         only the facts presented herein.
 
         
 
              Iowa Code section 85.32 provides:
 
         
 
                 Except as to injuries resulting in permanent partial 
 
              disability, compensation shall begin on the fourth day 
 
              of disability after the injury.
 
         
 
                 If the period of incapacity extends beyond the 
 
              fourteenth day following the date of injury, then the 
 
              compensation due during the third week shall be 
 
              increased by adding thereto an amount equal to three 
 
              days of compensation.
 
         
 
              The starting point in any case involving the interpretation 
 
         of a statute is the statute itself.  U.S. v. Hepp, 497 F.Supp. 
 
         348, affirmed 656 F.2d 350 (D.C.Iowa 1980).  The plain, obvious 
 
         and rational meaning of the statute is always to be preferred to 
 
         any curious, narrow, hidden sense.  Payne v. Ostrus, 50 F.2d 
 
         1039, 77 A.L.R. 531 (C.C.A.Iowa 1931).  Iowa Code section 85.32 
 
         states in part that compensation shall begin on the fourth day of 
 
         disability after the injury.  Claimant's injury occurred on June 
 
         22, 1987.  The first day after the injury was June 23, the second 
 
         day was June 24, the third day was June 25 and the fourth day, 
 
         the day on which compensation must begin, is June 26, 1987.  
 
         Claimant returned to work at 11:00 p.m. on July 7, 1987.  Iowa 
 
         Code section 85.32 allows for an additional three days of 
 
         compensation to be paid to an individual if the period of 
 
         incapacity extends beyond the fourteenth day following the date 
 
         of injury.  Therefore, continuing the chronology started above, 
 
         the fourteenth day following the date of injury is July 6, 1987.  
 
         For claimant to be entitled to the additional three days of 
 
         compensation, claimant must remain off work beyond that day.  The 
 
         general rule is that when the word "day" is used it means 
 
         calendar day which includes the entire day from midnight to 
 
         midnight.  State v. Sheets, 338 N.W.2d 886 (Iowa 1983).  Pursuant 
 
         to the holding in Sheets, the fourteenth day following the date 
 
         of injury expired at midnight on July 6, 1987.  It is important 
 
         to note that the statute refers to a "period of incapacity" 
 
         extending beyond the fourteenth day.  The statute does not 
 
         dictate that claimant must remain off work for an entire day 
 
         following the fourteenth day in order to be entitled to the 
 
         additional compensation.  Therefore, the undersigned believes 
 
         that a period of incapacity may be less than a day and that 
 
         claimant need not have been off work for the entire day following 
 
         the fourteenth day to be eligible for the waiting period 
 
         benefits.  Since claimant did not return to work until 11:00 p.m. 
 
         on July 7, 1987, some 23 hours after the end of the fourteenth 
 
         day, claimant's period of incapacity extended beyond the 
 
         fourteenth day following the date of injury and claimant is 
 
         entitled to the additional three days of compensation.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on 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 June 22, 1987.
 
         
 
              2.  Claimant normally worked on the shift commencing at 
 
         11:00 p.m. and ending at 7:00 a.m.
 
         
 
              3.  Claimant remained off work from the date of the injury 
 

 
         
 
         
 
         
 
         LORENZ V. REES ASSOCIATES
 
         PAGE   3
 
         
 
         
 
         until he returned at 11:00 p.m. on July 7, 1987.
 
         
 
              4.  The fourth day following the date of injury was June 26, 
 
         1987.
 
         
 
              5.  The fourteenth day following the date of injury expired 
 
         at midnight on July 6, 1987.
 
         
 
              6.  Claimant's period of incapacity extended beyond the 
 
         fourteenth day following the date of injury.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              As claimants incapacity extended beyond the fourteenth day 
 
         following the date of injury claimant is entitled to an 
 
         additional amount equal to three days of compensation.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant an amount equal to three 
 
         (3) days of compensation, or sixty-two and 89/100 dollars 
 
         ($62.89) ($146.59 x .429).
 
         
 
         
 
         
 
              Signed and filed this 14th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        DEBORAH A. DUBIK
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St, Ste 16
 
         Des Moines, IA 50312
 
         
 
         Mr. Robert C. Landess
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Avenue
 
         Des Moines, IA 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1801
 
                                               Filed November 14, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVE LORENZ,
 
         
 
              Claimant,                          File No. 855644
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         REES ASSOCIATES,                        D E C I S I O N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1801
 
         
 
              Claimant was injured June 22, 1987 and returned to work at 
 
         11:00 p.m. on July 7, 1987.  Issue presented was whether claimant 
 
         entitled to the three days of compensation under Iowa Code 
 
         section 85.32.  Claimant's "period of incapacity" found to have 
 
         extended beyond the 14th day, even though it was not an entire 
 
         day and benefits were awarded.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JAMES W. COSPER,              :
 
                                          :
 
                 Claimant,                :      File No. 855687
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            SECOND INJURY FUND,           :      D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Claimant raises the following issue on appeal:  Whether 
 
            claimant is entitled to second injury fund benefits because 
 
            his current cumulative industrial disability exceeds the sum 
 
            of disabilities resulting from the two previous injuries.  
 
            The Second Injury Fund did not appeal or cross-appeal and 
 
            other issues raised in its appeal brief will not be 
 
            considered.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed December 24, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is5 (Iowa 1989); Second Injury Fund v. Mich. Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1970).
 
            
 
                 Claimant was born in 1941.  He was 41 years old in 1982 
 
            when he injured his right arm and shoulder.  He was 46 years 
 
            old in 1987 when he injured his left arm and shoulder.  He 
 
            was 50 years old at the time of the hearing in this matter.  
 
            According to Dr. Pilcher claimant has 14 percent functional 
 
            impairment of the right upper extremity and a 16-24 percent 
 
            impairment of the left upper extremity.  Claimant continues 
 
            to work with the same employer with accommodations from his 
 
            fellow employees.  He has suffered no actual loss of 
 
            earnings.
 
            
 
                 For purposes of determining claimant's entitlement to 
 
            second injury fund benefits the following conclusions are 
 
            made.  Claimant suffered a five percent loss of earning 
 
            capacity from his 1982 injury.  Claimant suffered an 
 
            additional 15 percent loss of earning capacity from his 1987 
 
            injury.  Claimant's current cumulative industrial disability 
 
            is 20 percent.  In determining industrial disability 
 
            claimant's present condition is to be considered, and not 
 
            speculation as to what may occur in the future.  Umphress v. 
 
            Armstrong Rubber Co., Appeal Decision, August 27, 1987.  (No 
 
            appeal.)
 
            
 
                 Dr. Pilcher's opinion, if any, on claimant's disability 
 
            can be given no weight.  There is no indication in the 
 
            record that Dr. Pilcher is qualified to give an opinion of 
 
            industrial disability.  It does not appear that Dr. Pilcher 
 
            was giving an opinion of claimant's industrial disability 
 
            (claimant's exhibit 2, pages 20-21).  Even if he were 
 
            attempting to give an opinion on industrial disability, Dr. 
 
            Pilcher clearly did not utilize all the factors of 
 
            industrial disability.
 
            
 
                 Because claimant's current cumulative industrial 
 
            disability does not exceed the combined disabilities 
 
            resulting from the two previous injuries, claimant is not 
 
            entitled to second injury fund benefits.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, claimant takes nothing from the Second 
 
            Injury Fund in these proceedings.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 That claimant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Benjamin W. Blackstock
 
            Attorney at Law
 
            201 Cedar Plaza
 
            385 Collins Rd NE
 
            Cedar Rapids, Iowa 52402
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319