BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LOWELL TORGERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 863533
 
            WEBSTER CITY CUSTOM MEATS,    :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issue on appeal:
 
            
 
                 I.  Whether claimant sustained an injury to his 
 
                 right and left upper extremities on or about 
 
                 September 10, 1987
 
            
 
                 II.  Even if claimant sustained an injury on or 
 
                 about September 10, 1987, whether that injury is a 
 
                 substantial cause of claimant's alleged permanent 
 
                 disability?
 
            
 
                 III.  If the alleged injury of September 19, 1987 
 
                 was a cause of permanent disability, what is the 
 
                 liability of liberty mutual for the disability 
 
                 caused by that injury?
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed August 12, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 It is determined that claimant sustained an injury 
 
            which arose out of and in the course of his employment on or 
 

 
            
 
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            about September 10, 1987 to both of his arms simultaneously 
 
            as provided for in Iowa Code section 85.34(2)(s).
 
            
 
                 Claimant started to work for employer as a butcher on 
 
            February 23, 1976 (claimant's exhibit 15, page 1; 
 
            defendants' exhibit 1, page 1).  Claimant worked for 
 
            employer eight and sometimes twelve hours per day, five days 
 
            per week.  He continued to work for employer for a period of 
 
            approximately 11 1/2 years until on or about September 10, 
 
            1987.  At that time, claimant contends that he was unable to 
 
            continue to perform the repetitive work with his hands and 
 
            arms that he had previously performed for employer, and that 
 
            the Mayo Clinic had advised him to seek other employment and 
 
            the employer was unable to accommodate the work restrictions 
 
            recommended by the Mayo Clinic.
 
            
 
                 Claimant performed several repetitive jobs for employer 
 
            that required extensive use of his hands and arms.  These 
 
            jobs included butcher, kill floor supervisor, ham boner, 
 
            custom slaughter, ham trimmer, box making and night cleanup.  
 
            In custom slaughter, he processed 60-80 hogs per day 
 
            (transcript, p. 26).  While making boxes, he processed 
 
            approximately 2000-2500 boxes per day (tr., p. 33).  
 
            Claimant testified that the job of making boxes was harder 
 
            work and caused him more problems than knife work.
 
            
 
                 Claimant received a diploma when he completed the 
 
            butcher training school.  Claimant butchered the hams with 
 
            his right dominant hand and held the hams, flipped them and 
 
            manipulated them with his non-dominant left hand.
 
            
 
                 During the course of claimant's 11 1/2 year career in 
 
            repetitive motion work for employer, he encountered numerous 
 
            problems with his fingers, hands, wrists, forearms, elbows, 
 
            and shoulders of both upper extremities.
 
            
 
                 On May 1, 1981, John A. Grant, M.D., an orthopaedic 
 
            surgeon, performed right carpal tunnel surgery on claimant's 
 
            right hand and wrist.  On December 28, 1984, Deepak Midha, 
 
            M.D., performed carpal tunnel surgery on claimant's left 
 
            hand and wrist.  On May 13, 1985, Arnis Grundberg, M.D., an 
 
            orthopaedic surgeon, performed a decompression of both 
 
            cubital tunnels and surgical correction of medial 
 
            epicondylitis on both of claimant's elbows.  On May 2, 1986, 
 
            Scott B. Neff, D.O., an orthopaedic surgeon, performed right 
 
            carpal tunnel surgery.  The surgical wound became infected 
 
            and Dr. Neff reopened the carpal tunnel incision on June 2, 
 
            1986.
 
            
 
                 After the first three surgeries, claimant received 
 
            temporary disability benefits, but no permanent disability 
 
            benefits, nor did any physician issue an impairment rating 
 
            or place any restrictions on claimant's work.  After Dr. 
 
            Neff's two surgeries on the right wrist, Dr. Neff assessed 
 
            an eight percent permanent impairment of the right hand and 
 
            Dr. Grant assessed an eleven percent impairment of the right 
 
            hand.  Claimant was paid 9.5 weeks of permanent partial 
 
            disability for permanent impairment to the right hand.  
 
            After the surgeries by Drs. Grant, Midha, Grundberg and 
 
            Neff, claimant returned to work without restrictions and 
 

 
            
 
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            performed his assigned job by employer.  Claimant testified 
 
            that he had continuing problems, but that he felt improved 
 
            after each surgery and did perform the work assigned.
 
            
 
                 After the second surgery by Dr. Neff, claimant worked 
 
            for approximately a year until September of 1987 when he 
 
            developed severe symptoms again in his fingers and elbows on 
 
            both upper extremities.  He reported this to employer and as 
 
            in the past he was sent to see the company physician Subhash 
 
            Sahai, M.D., who on this occasion referred claimant to Mark 
 
            P. Brodersen, M.D., an orthopaedic surgeon, who in turn 
 
            referred claimant to William P. Cooney, M.D., an orthopaedic 
 
            surgeon at the Mayo Clinic.
 
            
 
                 Dr. Cooney evaluated claimant on October 12, 1987 and 
 
            began his report dated November 6, 1987 by stating that 
 
            claimant was a 39-year-old meat trimmer who presented with a 
 
            history of bilateral median and ulnar neuritis related to 
 
            his work for employer.  Although Dr. Cooney did not give an 
 
            impairment rating, he did find a two-point discrimination 
 
            subjectively present in both median nerve distributions, 
 
            tenderness over the old incision site, decreased vibratory 
 
            sensation on the right, increased vibratory sensation on the 
 
            left, positive Tinel's at the cubital tunnel along the ulnar 
 
            nerve on the right, positive Tinel's on the left ulnar nerve 
 
            and positive Phalen's sign on the right.  A work capacity 
 
            evaluation performed on October 21, 1987 at the Mayo Clinic 
 
            noted that claimant was cooperative in all aspects of 
 
            testing and appeared to exert a genuine effort.
 
            
 
                 The results of the functional capacity examination 
 
            demonstrated that claimant was able to perform work at a 
 
            light level with regard to the following abilities:  hand 
 
            strength (below average); fine motor skills (below average); 
 
            tool handling (below average); lifting (15 pounds); carrying 
 
            (10 pounds); push/pulling (14.5 pounds of force over a 
 
            distance of 25 feet).  Claimant had normal sitting, standing 
 
            and squatting tolerance as well as balance, walking and 
 
            stair climbing.  However, he was unable to perform light 
 
            level work and was limited with above shoulder reaching, 
 
            body mechanics and endurance.  Dr. Cooney concluded:
 
            
 
                 Overall it was the opinion of the evaluator that 
 
                 the client would not be able to perform work as a 
 
                 meat trimmer due to the repetitive nature of the 
 
                 activities.  However, he would be able to perform 
 
                 work within the light level work demands.  . . .  
 
                 Mr. Torgerson's major limiting factor at this time 
 
                 is endurance deficiencies in the upper extremities 
 
                 for repetitive activity.
 
            
 
            (Exhibit A, p. 11)
 
            
 
                 In spite of the previous cubital tunnel surgeries, Dr. 
 
            Cooney found the ulnar nerves were still lying in the area 
 
            of the cubital tunnels.  If symptoms persisted, anterior 
 
            transposition of the ulnar nerve would be recommended.  He 
 
            doubted if additional carpal tunnel surgery was necessary at 
 
            that time.
 
            
 

 
            
 
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                 Dr. Brodersen wrote on December 31, 1987:
 
            
 
                 This obviously is a complex situation with 
 
                 multiple nerve involvement.  He has had injury or 
 
                 damage to both the ulnar nerves at his elbows as 
 
                 well as the median nerves at his wrists.  These 
 
                 are two separate conditions that seem, as far as I 
 
                 can tell, to be related to his employment 
 
                 situation.  I do believe that these conditions 
 
                 have been aggravated by repetitive use of his 
 
                 upper extremities.
 
            
 
            (Exhibit A, p. 50)
 
            
 
                 In response to a questionnaire submitted to Dr. 
 
            Brodersen by the Second Injury Fund, Dr. Brodersen answered 
 
            that based on claimant's injury history, the surgery 
 
            reports, his own personal examination, and the neurological 
 
            findings of Dr. McKee, he opined within a reasonable degree 
 
            of medical certainty that claimant's condition with respect 
 
            to his median and ulnar nerves on both extremities were 
 
            present prior to 1986.  Dr. Brodersen also indicated that 
 
            these conditions to claimant's upper extremities developed 
 
            simultaneously or nearly simultaneously in both arms (Second 
 
            Injury Fund exhibit D).  Dr. Brodersen's opinion is 
 
            supported by the history of claimant's medical treatment.
 
            
 
                 Even though an early undated entry of Dr. Sahai, which 
 
            may be dated in 1978, records right arm and middle finger 
 
            pain (exhibit A, p. 18), and even though Dr. Sahai reported 
 
            pain and numbness of the thumb, index and middle finger on 
 
            the right hand on April 21, 1981, Dr. Grant first records 
 
            bilateral swelling on April 15, 1982 when claimant was 
 
            making boxes at work (exhibit A, p. 34).  Dr. Sahai then 
 
            reports left index finger swelling on the left hand on July 
 
            29, 1982 and bilateral hand and elbow problems on November 
 
            29, 1984 at which time he said both hands were red and sore 
 
            and swollen, his arms hurt, and most of the tenderness was 
 
            in his elbows also (exhibit A, p. 19).  Thus, this case is 
 
            distinguishable from Himschoot v. Montezuma Mfg., file 
 
            numbers 672778 and 738235 (App. Decn., April 15, 1988, 
 
            affirmed Iowa Court of Appeals, February 22, 1990), and 
 
            Kebernik v. Thatcher Plastic Packaging, file number 704973 
 
            (Arb. Decn., December 22, 1988), which were also decided by 
 
            this deputy in which claimant reported bilateral symptoms on 
 
            her first visit to the doctor.
 
            
 
                 Nevertheless, it is determined that claimant's injury 
 
            which occurred on or about September 10, 1987 is an injury 
 
            to both arms which developed essentially simultaneously out 
 
            of the same repetitive employment activities for the same 
 
            employer from as early as April 21, 1982 and continued until 
 
            September 10, 1987.  An EMG performed on December 11, 1984 
 
            confirmed bilateral distal median slowing in the carpal 
 
            canals (exhibit A, p. 5).  On March 15, 1985, Dr. Grundberg 
 
            diagnosed bilateral carpal tunnel syndrome and compression 
 
            of the ulnar nerve at both elbows prior to performing his 
 
            bilateral cubital tunnel and bilateral surgical correction 
 
            of medial epicondylitis on both elbows on May 13, 1985 
 
            (exhibit A, pp. 1-2).  Dr. Neff on February 17, 1986 records 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            bilateral pain in both elbows (exhibit A, p. 58).  The 
 
            medical records are replete with bilateral complaints and 
 
            treatments after Dr. Grundberg's note on April 21, 1982 
 
            through September 10, 1987.
 
            
 
                 Technically, Iowa Code section 85.34(2)(s) says an 
 
            injury to both arms should be "caused by a single accident."  
 
            However, in a recent case decided by Deputy Industrial 
 
            Commissioner Helenjean Walleser, she determined the injury 
 
            qualified as a section 85.34(2)(s) injury even though the 
 
            symptoms to both extremities were not diagnosed on the first 
 
            office visit as in Himschoot and Jones v. Lamoni Products, 
 
            file number 800310 (Arb. Decn., May 29, 1991).  The language 
 
            of Deputy Walleser interpreting the statute in that decision 
 
            is adopted for this decision and reads as follows.
 
            
 
                 The ultimate goal of statutory construction is to 
 
            determine and effectuate the intent of the legislature.  
 
            Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 532 
 
            (Iowa 1981).  One must look to the object to be 
 
            accomplished, the mischiefs to be remedied, or the purpose 
 
            to be served, and place on the statute a reasonable or 
 
            liberal construction which will best effect, rather than 
 
            defeat, the legislature's purpose.  City of Mason City v. 
 
            Pub. Employment Relations Bd., 316 N.W.2d 851, 854 (Iowa 
 
            1982).  All parts of the statute are to be considered 
 
            together without attributing undue importance to any single 
 
            or isolated portion.  Iowa Beef Processors, Inc., supra.  
 
            Strained, impractical or absurd results are to be avoided in 
 
            favor of a sensible, logical construction.  Ida County 
 
            Courier & Reminder v. Attorney General, 316 N.W.2d 846, 851 
 
            (Iowa 1982).  The policy is to liberally construe workers' 
 
            compensation statutes in favor of the worker.  Caterpillar 
 
            Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981).  It 
 
            is generally presumed that statutory words are used in their 
 
            ordinary and usual sense with the meaning commonly 
 
            attributed to them.  American Home Products Corp. v. Iowa 
 
            State Bd. of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981).
 
            
 
                 The Iowa Supreme Court has defined "injury" very 
 
            broadly.  Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 
 
            724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa 
 
            Workers' Compensation--Law and Practice, section 4-1, page 
 
            19.
 
            
 
                 An accident is not required.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            Proof of a special incident or unusual occurrence is not 
 
            required.  Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 
 
            (1949).  A personal injury may develop gradually over an 
 
            extended period of time.  Black v. Creston Auto Co., 255 
 
            Iowa 671, 281 N.W. 189 (1938).  Cumulative injuries such as 
 
            this one are recognized in Iowa in situations where the 
 
            disability comes on gradually and the compensable injury 
 
            occurs later.  Repetitive activity has been determined to be 
 
            a valid cause of an injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368, 374 (Iowa 1985).
 
            
 
                 Defendant employer's argument that the alleged injury 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            in September of 1987 is only an exacerbation of an old 
 
            injury is without merit for the reason that this is the 
 
            first occasion in which the injury progressed to the point 
 
            where claimant was no longer able to work.  Claimant 
 
            testified that he left work on September 10, 1987 
 
            (transcript, page 40).  For the same reason, September 10, 
 
            1987 is determined to be the injury date in this case.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).
 
            
 
                 Wherefore, based upon the medical records, the opinion 
 
            of Dr. Cooney, and the uncontroverted, uncontradicted, 
 
            unrebutted and unrefuted opinion of Dr. Brodersen that 
 
            claimant's median nerve and ulnar nerve problems in both of 
 
            his arms occurred simultaneously or nearly so, it is 
 
            determined that claimant has sustained an injury on or about 
 
            September 10, 1987 which arose out of and in the course of 
 
            his employment with employer pursuant to the provisions of 
 
            Iowa Code section 85.34(2)(s).
 
            
 
                 *****
 
            
 
                 It is determined that the injury on or about September 
 
            10, 1987 was the cause of claimant's permanent impairment 
 
            and disability.
 
            
 
                 All of the doctors, Dr. Sahai, Dr. Grant, Dr. Midha, 
 
            Dr. Grundberg, Dr. Neff, Dr. Brodersen, Dr. McKee, and Dr. 
 
            Cooney, all evaluated or treated claimant on the basis of 
 
            the repetitive use of his hands and arms at work.  Dr. 
 
            Cooney of the Mayo Clinic stated that claimant is a 
 
            39-year-old meat trimmer who presented with a history of 
 
            bilateral median and ulnar neuritis related to his work 
 
            (exhibit A, p. 10).  Dr. Brodersen specifically stated:  "I 
 
            do believe that these conditions have been aggravated by 
 
            repetitive use of his upper extremities."  (Exhibit A, p. 
 
            50).  Dr. Brodersen wrote to the insurance company on 
 
            January 11, 1988:
 
            
 
                 In regards to your recent inquiry about Lowell 
 
                 Torgerson it is my opinion that this man is unable 
 
                 to return to any job that requires repetitive use 
 
                 of his arms.  I feel that this will be a permanent 
 
                 restriction.
 
            
 
            (Exhibit A, p. 52)
 
            
 
                 Defendants have introduced no evidence of any other 
 
            cause for claimant's permanent impairment or disability.
 
            
 
                 It is further determined that claimant is permanently 
 
            and totally disabled pursuant to Iowa Code section 
 
            85.34(2)(s).
 
            
 
                 Dr. Neff and Thomas W. Bower, licensed physical 
 
            therapist, determined that claimant had sustained a 15 
 
            percent impairment to each extremity (exhibit A, p. 15).
 
            
 
                 Dr. Brodersen found:
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 On the basis of these findings, it is my opinion 
 
                 that he has an eight percent impairment of his 
 
                 right upper extremity because of the right ulnar 
 
                 nerve problem and a thirty-seven percent 
 
                 impairment of his right upper extremity on the 
 
                 basis of the median nerve problem.  This would be 
 
                 a total of forty-five percent impairment of his 
 
                 right upper extremity.
 
            
 
                 His left elbow with the slowing nerve conduction 
 
                 velocity and ulnar nerve would have a thirteen 
 
                 percent impairment and the median nerve at the 
 
                 wrist injury would cause a thirty-seven percent 
 
                 impairment.  This would be a fifty percent 
 
                 impairment of his left upper extremity.
 
            
 
                 At this point in time I believe that this 
 
                 evaluation follows the guidelines established by 
 
                 The American Medical Association for nerve 
 
                 injuries.
 
            
 
            (Exhibit A, pp. 50-51)
 
            
 
                 Dr. Cooney of the Mayo Clinic stated:
 
            
 
                 Overall it was the opinion of the evaluator that 
 
                 the client would not be able to perform work as a 
 
                 meat trimmer due to the repetitive nature of the 
 
                 activities.  However, he would be able to perform 
 
                 work within the light level work demands.
 
            
 
            (Exhibit A, p. 11)
 
            
 
                 These light level work demands were defined as not 
 
            lifting more than 15 pounds, not carrying more than 10 
 
            pounds, and not pushing or pulling more than 14.5 pounds of 
 
            force over a distance of 25 feet.  The employer had no work 
 
            within these restrictions and claimant therefore was unable 
 
            to return to work after September 10, 1987.
 
            
 
                 Claimant drew unemployment compensation generally from 
 
            January of 1988 through July of 1988 while he searched for 
 
            work, but was unable to find anyone willing to employ him 
 
            with his limitations of his hands and arms (claimant's 
 
            exhibit 13).
 
            
 
                 Claimant applied for and was denied Social Security 
 
            disability benefits, but after an appeal, he was awarded 
 
            permanent disability benefits on January 31, 1989.
 
            
 
                 The administrative law judge considered several 
 
            factors.  Claimant has a severe bilateral congenital and 
 
            probably hereditary hearing loss and he is required to wear 
 
            two hearing aids to record sounds.  His speech is also 
 
            slightly impaired.  Claimant has some back complaints from a 
 
            fall and takes Synthroid for a thyroid condition.  However, 
 
            it would appear that claimant was awarded Social Security 
 
            disability benefits on the basis of his bilateral hand and 
 
            arm disability.  All of his other problems predated 
 
            September 10, 1987 and did not affect his ability to work 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            (Second Injury Fund exhibit C).
 
            
 
                 Lynn M. Bursell, a vocational rehabilitation counselor 
 
            for the Iowa State Vocational Rehabilitation facility, 
 
            testified that she first saw claimant on April 25, 1988 when 
 
            he was referred to the Des Moines office by the Fort Dodge 
 
            office for an evaluation for either job placement or 
 
            appropriate training at the right academic level.  Claimant 
 
            took three days of standardized testing in the initial 
 
            program development area, selected some areas of employment 
 
            in which he would be interested, and was then tested and 
 
            evaluated by several other vocational rehabilitation 
 
            counselors.  Bursell reviewed the recommendations of the 
 
            other evaluators, then formed her own opinion and concluded:
 
            
 
                 A.  My final evaluation was that Lowell was not a 
 
                 competitively employable individual.  His 
 
                 disabilities with his arms and hands negated 
 
                 competitive employment.  He was slow.  His hands 
 
                 and wrists would swell.  He wouldn't be able to 
 
                 perform more than I think it was 22 minutes at one 
 
                 shot.
 
            
 
                 In addition to that, his academics were very low, 
 
                 and would not be conducive to a training 
 
                 situation, so we couldn't recommend training for a 
 
                 sit-down job, because he wouldn't have succeeded 
 
                 in a training program.
 
            
 
            (Transcript, p. 81)
 
            
 
                 She explained that by competitive employment she meant 
 
            that claimant was not able to perform at competitive rates 
 
            which means at a rate which would be beneficial to an 
 
            employer.  His speed is slow; he is not able to perform up 
 
            to standard rates (transcript, p. 82).  In her written 
 
            report, Bursell commented:
 
            
 
                 It was observed that after a number of tasks, 
 
                 Lowell would sit with his hands and arms hanging 
 
                 straight down from his shoulders saying they felt 
 
                 as if they weighed 50 tons.  He was also observed 
 
                 rubbing his right elbow.  It was felt that he 
 
                 carried out the tasks with isolated skills and 
 
                 accuracy, but did not demonstrate that he could 
 
                 physically sustain a task over time.  Twenty-two 
 
                 minutes was the longest time he spent on any one 
 
                 activity.  He was in need of resting his arms 
 
                 before continuing with other activities.
 
            
 
            (Claimant's exhibit 5, p. 2)
 
            
 
                 Claimant scored below average on almost every test 
 
            administered.  Academically, his reading equivalency is 
 
            fifth grade, ninth month.  His mathematics equivalency was 
 
            fifth grade, third month (transcript, p. 83).  On mechanical 
 
            reasoning, he scored in the first percentile which is 
 
            extremely low (transcript, p. 84).  He scored at the tenth 
 
            percentile of mechanical reasoning and space relations which 
 
            is very low.  Ruler measuring was at the 50 percent accuracy 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            level (transcript, p. 84).  His performance IQ was 86 which 
 
            was below average; his verbal IQ was 73 which might have 
 
            been affected by his hearing loss (transcript, pp. 87-88; 
 
            claimant's exhibit 5, p. 2).
 
            
 
                 Nevertheless, Bursell concluded:  "It was felt that 
 
            competitive employment was highly unlikely given the pain 
 
            experience as the result of carpal tunnel syndrome."  
 
            Exhibit 5, page 3).  Bursell and several other vocational 
 
            counselors noted that claimant's test behavior was excellent 
 
            and that he exerted the maximum effort even at the expense 
 
            of his own physical cost.  Bursell concluded that his 
 
            disability was based on claimant's physical discomfort, 
 
            inability to maintain work on a continuous basis due to lack 
 
            of physical tolerance and also inability to be academically 
 
            inclined to allow him to pursue further training or get in a 
 
            nonphysical type of position (exhibit 5, p. 3).
 
            
 
                 Claimant's low IQ disqualified him from many programs 
 
            that required education in a college or university setting, 
 
            a technical program or any training program that requires a 
 
            basic level of intelligence (transcript, p. 88).  Bursell 
 
            recommended that claimant appeal his initial Social Security 
 
            denial of benefits (claimant's exhibit 5, p. 3).  Bursell 
 
            added that his hearing loss was considered, however, the 
 
            reason that the evaluators said non-competitive employment 
 
            in most cases was because of the physical disabilities, the 
 
            problems with his dexterities (transcript, p. 91).
 
            
 
                 *****
 
            
 
                 Claimant, born April 27, 1948, was 39 years old at the 
 
            time of injury, 41 years old at the time of hearing, and is 
 
            43 years old at the time of this decision.  He graduated 
 
            from high school as a special education student in his 
 
            twelfth year of school.  His only training subsequent to 
 
            high school was a butcher training course for which he 
 
            received a diploma.  Bursell concluded:  "The Academic 
 
            Preparation area found that both reading and math were too 
 
            low to consider formal training.  It was recommended that he 
 
            enroll in an adult basic education class to improve his 
 
            performances for personal use."  (Claimant's exhibit 5, p. 
 
            2).
 
            
 
                 Retraining, therefore, is not feasible in this case.  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).  Claimant is foreclosed 
 
            from his employment with this employer and all past 
 
            employments.  Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984); Michael v. 
 
            Harrison County, Thirty-Fourth Biennial Report of the 
 
            Industrial Commissioner, 218, 220 (Appeal Decision, January 
 
            30, 1979).
 
            
 
                 The testimony of Bursell and the reports of the other 
 
            rehabilitation counselors support the fact that claimant is 
 
            not competitively employable.  Bursell's testimony was 
 
            undisputed.  This evidence was not controverted, 
 
            contradicted, rebutted or refuted by any evidence on the 
 
            part of defendants.  Nor did any of the defendants attempt 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            to assist claimant in any way through the employment of 
 
            private vocational rehabilitation assistance.
 
            
 
                 With respect to his hearing loss, the Raven Progressive 
 
            Matrices, a non-verbal test of intelligence, was 
 
            administered and the client scored well within the below 
 
            average range of intelligence.  Bursell testified:  "The 
 
            hearing loss is considered, however, the reason that the 
 
            evaluators said non-competitive employment in most cases was 
 
            because of the physical disabilities, the problems with the 
 
            dexterities."  (Transcript, page 91).  Thus, claimant's 
 
            hearing loss was not the current cause of his disability and 
 
            untrainability (claimant's exhibit 5, page 14).
 
            
 
                 Claimant testified that his disability is that he has 
 
            numbness from the elbow down to the wrist and numbness of 
 
            the fingers in both arms and hands.  It was recorded and 
 
            claimant testified that he was unable to feel cuts and burns 
 
            that occurred to his right arm.
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant is permanently and totally disabled 
 
            and that his disability arises from his bilateral injury to 
 
            both arms simultaneously as a result of his employment- 
 
            related repetitive arm and hand movements for this one 
 
            employer which has been diagnosed as bilateral in nature 
 
            since April 15, 1982 by Dr. Grant (exhibit A, p. 34).
 
            
 
                 *****
 
            
 
                 It is determined that the Second Injury Fund is not 
 
            liable for claimant's disability for the reason that he has 
 
            basically one syndrome of injury to his median nerves at the 
 
            carpal tunnels and his ulnar nerves at the cubital tunnels 
 
            which arose essentially simultaneously while working for 
 
            employer.  Thus claimant does not have an injury and also a 
 
            previous injury to qualify for Second Injury Fund benefits 
 
            under Iowa Code section 85.64.  Himschoot v. Montezuma Mfg., 
 
            file numbers 672778 and 738235 (App. Decn., April 15, 1988).
 
            
 
                 It has been held that manifestation of one injury on 
 
            two occasions does not satisfy the requirement of prior 
 
            loss.  McMurrin v. Quaker Oats Co., I Iowa Industrial 
 
            Commissioner Report 222 (Appeal Decision 1981).  However, 
 
            whether this set of facts would be considered a 
 
            manifestation of one injury on two occasions cannot be 
 
            determined because the McMurrin case does not set out the 
 
            specific facts of that injury.
 
            
 
                 It is claimant's contention that the 9.5 percent 
 
            disability to the right hand by Dr. Neff was the first 
 
            injury and the 50 and 45 percent disability to the left and 
 
            right hand by Dr. Brodersen is the second injury for the 
 
            purpose of second injury fund benefits.
 
            
 
                 *****
 
            
 
                 Wherefore, it is determined that the Second Injury Fund 
 
            of Iowa is not liable to claimant for his permanent and 
 
            total disability.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 *****
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 WHEREFORE, based upon the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made.
 
            
 
                 That claimant sustained a cumulative injury to both 
 
            hands and arms (bilaterally) which developed and occurred 
 
            simultaneously and resulted in an injury which arose out of 
 
            and in the course of employment with employer on or about 
 
            September 10, 1987, the date on which claimant was no longer 
 
            able to work.  Iowa Code section 85.3(1); Iowa Code section 
 
            85.34(2)(s); McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury of September 10, 1987 was the cause of 
 
            permanent impairment.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence and presented uncontroverted 
 
            evidence that he is permanently and totally disabled.  Iowa 
 
            Code section 85.34(2)(s); Iowa Code section 85.34(3).
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant permanent total 
 
            disability benefits commencing on the date of the injury 
 
            September 10, 1987 at the stipulated rate of one hundred 
 
            eighty and 32/100 dollars ($180.32) per week for as long as 
 
            claimant shall remain permanently and totally disabled.
 
            
 
                 That defendants are entitled to a credit for thirty-six 
 
            and one-half (36 1/2) weeks of temporary and permanent 
 
            disability benefits paid to claimant prior to hearing at the 
 
            rate of one hundred eighty and 32/100 dollars ($180.32) per 
 
            week 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 defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That defendants file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James A. Brewer
 
            Attorney at Law
 
            612 Kellogg Avenue
 
            P.O. Box 847
 
            Ames, Iowa  50010
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                       1106; 1401; 1402.20; 1402.30; 
 
                                       1402.40; 1804; 2206; 2209; 2902; 
 
                                       3201; 3202; 3203
 
                                       Filed July 30, 1992
 
                                       Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            LOWELL TORGERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 863533
 
            WEBSTER CITY CUSTOM MEATS,    :
 
                                          :           A P P E A L
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1106; 1401; 1402.20; 1402.30; 1402.40; 1804; 2206; 2209; 
 
            2902
 
            It was determined that 11 1/2 years of highly repetitive 
 
            work as a butcher and box maker for employer caused a 
 
            bilateral median nerve injury to the hands and a bilateral 
 
            ulnar nerve injury to the elbows which occurred 
 
            simultaneously within the definition of "caused by a single 
 
            accident" in Iowa Code section 85.34(2)(s).  Bilateral 
 
            problems were not reported on the first office call(s) but 
 
            did begin some five years before the injury date which 
 
            occurred when claimant stated he was no longer able to work 
 
            and the Mayo Clinic corroborated that he should seek other 
 
            employment because he would not be able to perform his work 
 
            as a butcher and box maker.
 
            This case is distinguished from Himschoot and Kebernik where 
 
            bilateral symptoms were reported on the first office visit 
 
            and Jones (cited below) where bilateral symptoms were 
 
            reported about a month apart.  It was held that the symptoms 
 
            occurred essentially simultaneously within the purview of 
 
            section 85.34(2)(s).  The statutory interpretation cites and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            principles used by Deputy Walleser to interpret section 
 
            85.34(2)(s) in Jones v. Lamoni Products, file number 800310, 
 
            filed May 29, 1991 were relied on and used in this case.
 
            Defendant employer's contention that this was an aggravation 
 
            of a preexisting condition was not accepted because on this 
 
            occasion claimant was forced to quit working.
 
            Dr. Neff awarded 15 percent to each arm; Dr. Brodersen 
 
            awarded 45 percent and 50 percent to each arm respectively; 
 
            Mayo Clinic said claimant was foreclosed from repetitive 
 
            employment and was only able to perform very light 
 
            employment below shoulder level; the vocational 
 
            rehabilitation counselor for the Iowa State Rehabilitation 
 
            Services said claimant was not competitively employable due 
 
            to the disability in his arms and that he was not 
 
            retrainable for any other work; the Social Security 
 
            Administration awarded claimant permanent and total 
 
            disability benefits primarily due to the disability in his 
 
            arms.  The permanent and total disability evidence was not 
 
            controverted by defendants.
 
            Even though the evidence supported permanent and total 
 
            disability caused by the disability to the arms alone, it 
 
            was held that other industrial factors could be used to 
 
            determine permanent and total disability as that term is 
 
            used in section 85.34(2)(s), citing Jones again.
 
            Causal connection for the injury and disability were 
 
            provided by Dr. Brodersen and Mayo Clinic as well as 
 
            claimant's testimony and other medical records.
 
            
 
            3201; 3202; 3203
 
            No liability was found against the Fund because this was 
 
            determined to be a section 85.34(2)(s) case.  Himschoot, 
 
            Kebernik, and Jones.  Claimant contended there was this 
 
            injury and a prior loss for a section 85.64 claim against 
 
            the Second Injury Fund.  It was speculated that the evidence 
 
            supported such a conclusion, but as between section 
 
            85.34(2)(s) and section 85.64, the legislature intended and 
 
            the deputy decided that the employer was primary, especially 
 
            where, as here, the entire course of events occurred while 
 
            performing repetitive work for one employer.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOWELL TORGERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 863533
 
            WEBSTER CITY CUSTOM MEATS,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Lowell 
 
            Torgerson, claimant, against Webster City Custom Meats, 
 
            employer, Liberty Mutual Insurance Company, insurance 
 
            carrier, and the Second Injury Fund of Iowa for benefits as 
 
            the result of an alleged injury that occurred on or about 
 
            September 10, 1987.  A hearing was held at Fort Dodge, Iowa 
 
            on April 3, 1990 and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by James A. 
 
            Brewer.  Defendant employer and insurance carrier was 
 
            represented by Richard G. Book.  Defendant Second Injury 
 
            Fund of Iowa was represented by Craig Kelinson.  The record 
 
            consists of the testimony of Lowell Torgerson, claimant; 
 
            Lynn Bursell, vocational rehabilitation consultant; 
 
            claimant's exhibits 5, 12, 13, 14 and 15; defendant 
 
            employer's exhibits 1, 2 and 3; defendant Second Injury 
 
            Fund's exhibits B, C, D and E; and, joint exhibit A, pages 1 
 
            through 79.  The deputy ordered a transcript of the hearing.  
 
            All three attorneys submitted excellent post-hearing briefs.
 
            
 
                       
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            stipulations
 
            
 
                 The issue of the statute of limitations under Iowa Code 
 
            section 85.26 as shown on the hearing assignment order was 
 
            waived by both defendants in this case on the record at the 
 
            time of hearing (transcript, pages 17 and 18)
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on or about 
 
            September 10, 1987 which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits from employer and, if so, the nature and extent of 
 
            benefits to which he is entitled.
 
            
 
                 Whether the Second Injury Fund of Iowa is liable for 
 
            any benefits, and if so, the nature and extent of benefits 
 
            to which claimant is entitled from the Fund.
 
            
 
                 In the event of an award of benefits from the Fund, 
 
            then whether the Second Injury Fund of Iowa is entitled to a 
 
            credit under Iowa Code section 85.64(2) for Social Security 
 
            disability benefits paid to claimant before and after the 
 
            hearing.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury 
 
            which arose out of and in the course of his employment on or 
 
            about September 10, 1987 to both of his arms simultaneously 
 
            as provided for in Iowa Code section 85.34(2)(s).
 
            
 
                 Claimant started to work for employer as a butcher on 
 
            February 23, 1976 (claimant's exhibit 15, page 1; 
 
            defendants' exhibit 1, page 1).  Claimant worked for 
 
            employer eight and sometimes twelve hours per day, five days 
 
            per week.  He continued to work for employer for a period of 
 
            approximately 11 1/2 years until on or about September 10, 
 
            1987.  At that time, claimant contends that he was unable to 
 
            continue to perform the repetitive work with his hands and 
 
            arms that he had previously performed for employer, and that 
 
            the Mayo Clinic had advised him to seek other employment and 
 
            the employer was unable to accommodate the work restrictions 
 
            recommended by the Mayo Clinic.
 
            
 
                 Claimant performed several repetitive jobs for employer 
 
            that required extensive use of his hands and arms.  These 
 
            jobs included butcher, kill floor supervisor, ham boner, 
 
            custom slaughter, ham trimmer, box making and night cleanup.  
 
            In custom slaughter, he processed 60-80 hogs per day 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (transcript, page 26).  While making boxes, he processed 
 
            approximately 2,000-2,500 boxes per day (transcript, page 
 
            33).  Claimant testified that the job of making boxes was 
 
            harder work and caused him more problems than knife work.
 
            
 
                 Claimant received a diploma when he completed the 
 
            butcher training school.  Claimant butchered the hams with 
 
            his right dominant hand and held the hams, flipped them and 
 
            manipulated them with his non-dominant left hand.
 
            
 
                 During the course of claimant's 11 1/2 year career in 
 
            repetitive motion work for employer, he encountered numerous 
 
            problems with his fingers, hands, wrists, forearms, elbows, 
 
            and shoulders of both upper extremities.
 
            
 
                 On May 1, 1981, John A. Grant, M.D., an orthopaedic 
 
            surgeon, performed right carpal tunnel surgery on claimant's 
 
            right hand and wrist.  On December 28, 1984, Deepak Midha, 
 
            M.D., performed carpal tunnel surgery on claimant's left 
 
            hand and wrist.  On May 13, 1985, Arnis Grundberg, M.D., an 
 
            orthopaedic surgeon, performed a decompression of both 
 
            cubital tunnels and surgical correction of medial 
 
            epicondylitis on both of claimant's elbows.  On May 2, 1986, 
 
            Scott B. Neff, D.O., an orthopaedic surgeon, performed right 
 
            carpal tunnel surgery.  The surgical wound became infected 
 
            and Dr. Neff reopened the carpal tunnel incision on June 2, 
 
            1986.
 
            
 
                 After the first three surgeries, claimant received 
 
            temporary disability benefits, but no permanent disability 
 
            benefits, nor did any physician issue an impairment rating 
 
            or place any restrictions on claimant's work.  After Dr. 
 
            Neff's two surgeries on the right wrist, Dr. Neff assessed 
 
            an eight percent permanent impairment of the right hand and 
 
            Dr. Grant assessed an eleven percent impairment of the right 
 
            hand.  Claimant was paid 9.5 weeks of permanent partial 
 
            disability for permanent impairment to the right hand.  
 
            After the surgeries by Drs. Grant, Midha, Grundberg and 
 
            Neff, claimant returned to work without restrictions and 
 
            performed his assigned job by employer.  Claimant testified 
 
            that he had continuing problems, but that he felt improved 
 
            after each surgery and did perform the work assigned.
 
            
 
                 After the second surgery by Dr. Neff, claimant worked 
 
            for approximately a year until September of 1987 when he 
 
            developed severe symptoms again in his fingers and elbows on 
 
            both upper extremities.  He reported this to employer and as 
 
            in the past he was sent to see the company physician Subhash 
 
            Sahai, M.D., who on this occasion referred claimant to Mark 
 
            P. Brodersen, M.D., an orthopaedic surgeon, who in turn 
 
            referred claimant to William P. Cooney, M.D., an orthopaedic 
 
            surgeon at the Mayo Clinic.
 
            
 
                 Dr. Cooney evaluated claimant on October 12, 1987 and 
 
            began his report dated November 6, 1987 by stating that 
 
            claimant was a 39-year-old meat trimmer who presented with a 
 
            history of bilateral median and ulnar neuritis related to 
 
            his work for employer.  Although Dr. Cooney did not give an 
 
            impairment rating, he did find a two-point discrimination 
 
            subjectively present in both median nerve distributions, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            tenderness over the old incision site, decreased vibratory 
 
            sensation on the right, increased vibratory sensation on the 
 
            left, positive Tinel's at the cubital tunnel along the ulnar 
 
            nerve on the right, positive Tinel's on the left ulnar nerve 
 
            and positive Phalen's sign on the right.  A work capacity 
 
            evaluation performed on October 21, 1987 at the Mayo Clinic 
 
            noted that claimant was cooperative in all aspects of 
 
            testing and appeared to exert a genuine effort.
 
            
 
                 The results of the functional capacity examination 
 
            demonstrated that claimant was able to perform work at a 
 
            light level with regard to the following abilities:  hand 
 
            strength (below average); fine motor skills (below average); 
 
            tool handling (below average); lifting (15 pounds); carrying 
 
            (10 pounds); push/pulling (14.5 pounds of force over a 
 
            distance of 25 feet).  Claimant had normal sitting, standing 
 
            and squatting tolerance as well as balance, walking and 
 
            stair climbing.  However, he was unable to perform light 
 
            level work and was limited with above shoulder reaching, 
 
            body mechanics and endurance.  Dr. Cooney concluded:
 
            
 
                 Overall it was the opinion of the evaluator that 
 
                 the client would not be able to perform work as a 
 
                 meat trimmer due to the repetitive nature of the 
 
                 activities.  However, he would be able to perform 
 
                 work within the light level work demands.  . . .  
 
                 Mr. Torgerson's major limiting factor at this time 
 
                 is endurance deficiencies in the upper extremities 
 
                 for repetitive activity.
 
            
 
            (Exhibit A, page 11)
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            In spite of the previous cubital tunnel surgeries, Dr. 
 
            Cooney found the ulnar nerves were still lying in the area 
 
            of the cubital tunnels.  If symptoms persisted, anterior 
 
            transposition of the ulnar nerve would be recommended.  He 
 
            doubted if additional carpal tunnel surgery was necessary at 
 
            that time.
 
            
 
                 Dr. Brodersen wrote on December 31, 1987:
 
            
 
                 This obviously is a complex situation with 
 
                 multiple nerve involvement.  He has had injury or 
 
                 damage to both the ulnar nerves at his elbows as 
 
                 well as the median nerves at his wrists.  These 
 
                 are two separate conditions that seem, as far as I 
 
                 can tell, to be related to his employment 
 
                 situation.  I do believe that these conditions 
 
                 have been aggravated by repetitive use of his 
 
                 upper extremities.
 
            
 
            (Exhibit A, page 50)
 
            
 
                 In response to a questionnaire submitted to Dr. 
 
            Brodersen by the Second Injury Fund, Dr. Brodersen answered 
 
            that based on claimant's injury history, the surgery 
 
            reports, his own personal examination, and the neurological 
 
            findings of Dr. McKee, he opined within a reasonable degree 
 
            of medical certainty that claimant's condition with respect 
 
            to his median and ulnar nerves on both extremities were 
 
            present prior to 1986.  Dr. Brodersen also indicated that 
 
            these conditions to claimant's upper extremities developed 
 
            simultaneously or nearly simultaneously in both arms (Second 
 
            Injury Fund exhibit D).  Dr. Brodersen's opinion is 
 
            supported by the history of claimant's medical treatment.
 
            
 
                 Even though an early undated entry of Dr. Sahai, which 
 
            may be dated in 1978, records right arm and middle finger 
 
            pain (exhibit A, page 18), and even though Dr. Sahai 
 
            reported pain and numbness of the thumb, index and middle 
 
            finger on the right hand on April 21, 1981, Dr. Grant first 
 
            records bilateral swelling on April 15, 1982 when claimant 
 
            was making boxes at work (exhibit A, page 34).  Dr. Sahai 
 
            then reports left index finger swelling on the left hand on 
 
            July 29, 1982 and bilateral hand and elbow problems on 
 
            November 29, 1984 at which time he said both hands were red 
 
            and sore and swollen, his arms hurt, and most of the 
 
            tenderness was in his elbows also (exhibit A, page 19).  
 
            Thus, this case is distinguishable from Himschoot v. 
 
            Montezuma Mfg., file numbers 672778 and 738235 (App. Decn., 
 
            April 15, 1988, affirmed Iowa Court of Appeals, February 22, 
 
            1990), and Kebernik v. Thatcher Plastic Packaging, file 
 
            number 704973 (Arb. Decn., December 22, 1988), which were 
 
            also decided by this deputy in which claimant reported 
 
            bilateral symptoms on her first visit to the doctor.
 
            
 
                 Nevertheless, it is determined that claimant's injury 
 
            which occurred on or about September 10, 1987 is an injury 
 
            to both arms which developed essentially simultaneously out 
 
            of the same repetitive employment activities for the same 
 
            employer from as early as April 21, 1982 and continued until 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            September 10, 1987.  An EMG performed on December 11, 1984 
 
            confirmed bilateral distal median slowing in the carpal 
 
            canals (exhibit A, page 5).  On March 15, 1985, Dr. 
 
            Grundberg diagnosed bilateral carpal tunnel syndrome and 
 
            compression of the ulnar nerve at both elbows prior to 
 
            performing his bilateral cubital tunnel and bilateral 
 
            surgical correction of medial epicondylitis on both elbows 
 
            on May 13, 1985 (exhibit A, pages 1 and 2).  Dr. Neff on 
 
            February 17, 1986 records bilateral pain in both elbows 
 
            (exhibit A, page 58).  The medical records are replete with 
 
            bilateral complaints and treatments after Dr. Grundberg's 
 
            note on April 21, 1982 through September 10, 1987.
 
            Technically, section 85.34(2)(s) says an injury to both arms 
 
            should be "caused by a single accident."  However, in a 
 
            recent case decided by Deputy Industrial Commissioner 
 
            Helenjean Walleser, she determined the injury qualified as a 
 
            section 85.34(2)(s) injury even though the symptoms to both 
 
            extremities were not diagnosed on the first office visit as 
 
            in Himschoot and Jones v. Lamoni Products, file number 
 
            800310 (Arb. Decn., May 29, 1991).  The language of Deputy 
 
            Walleser interpreting the statute in that decision is 
 
            adopted for this decision and reads as follows.
 
            The ultimate goal of statutory construction is to determine 
 
            and effectuate the intent of the legislature.  Iowa Beef 
 
            Processors, Inc. v. Miller, 312 N.W.2d 530, 532 (Iowa 1981).  
 
            One must look to the object to be accomplished, the 
 
            mischiefs to be remedied, or the purpose to be served, and 
 
            place on the statute a reasonable or liberal construction 
 
            which will best effect, rather than defeat, the 
 
            legislature's purpose.  City of Mason City v. Pub. 
 
            Employment Relations Bd., 316 N.W.2d 851, 854 (Iowa 1982).  
 
            All parts of the statute are to be considered together 
 
            without attributing undue importance to any single or 
 
            isolated portion.  Iowa Beef Processors, Inc., supra.  
 
            Strained, impractical or absurd results are to be avoided in 
 
            favor of a sensible, logical construction.  Ida County 
 
            Courier & Reminder v. Attorney General, 316 N.W.2d 846, 851 
 
            (Iowa 1982).  The policy is to liberally construe workers' 
 
            compensation statutes in favor of the worker.  Caterpillar 
 
            Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981).  It 
 
            is generally presumed that statutory words are used in their 
 
            ordinary and usual sense with the meaning commonly 
 
            attributed to them.  American Home Products Corp. v. Iowa 
 
            State Bd. of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981).
 
            
 
                 The Iowa Supreme Court has defined "injury" very 
 
            broadly.  Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 
 
            724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa 
 
            Workers' Compensation--Law and Practice, section 4-1, page 
 
            19.
 
            
 
                 An accident is not required.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            Proof of a special incident or unusual occurrence is not 
 
            required.  Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 
 
            (1949).  A personal injury may develop gradually over an 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            extended period of time.  Black v. Creston Auto Co., 255 
 
            Iowa 671, 281 N.W. 189 (1938).  Cumulative injuries such as 
 
            this one are recognized in Iowa in situations where the 
 
            disability comes on gradually and the compensable injury 
 
            occurs later.  Repetitive activity has been determined to be 
 
            a valid cause of an injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368, 374 (Iowa 1985).
 
            
 
                 Defendant employer's argument that the alleged injury 
 
            in September of 1987 is only an exacerbation of an old 
 
            injury is without merit for the reason that this is the 
 
            first occasion in which the injury progressed to the point 
 
            where claimant was no longer able to work.  Claimant 
 
            testified that he left work on September 10, 1987 
 
            (transcript, page 40).  For the same reason, September 10, 
 
            1987 is determined to be the injury date in this case.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).
 
            
 
                 Wherefore, based upon the medical records, the opinion 
 
            of Dr. Cooney, and the uncontroverted, uncontradicted, 
 
            unrebutted and unrefuted opinion of Dr. Brodersen that 
 
            claimant's median nerve and ulnar nerve problems in both of 
 
            his arms occurred simultaneously or nearly so, it is 
 
            determined that claimant has sustained an injury on or about 
 
            September 10, 1987 which arose out of and in the course of 
 
            his employment with employer pursuant to the provisions of 
 
            Iowa Code section 85.34(2)(s).
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 It is determined that the injury of on or about 
 
            September 10, 1987 was the cause of claimant's permanent 
 
            impairment and disability.
 
            
 
                 All of the doctors, Dr. Sahai, Dr. Grant, Dr. Midha, 
 
            Dr. Grundberg, Dr. Neff, Dr. Brodersen, Dr. McKee, and Dr. 
 
            Cooney, all evaluated or treated claimant on the basis of 
 
            the repetitive use of his hands and arms at work.  Dr. 
 
            Cooney of the Mayo Clinic stated that claimant is a 
 
            39-year-old meat trimmer who presented with a history of 
 
            bilateral median and ulnar neuritis related to his work 
 
            (exhibit A, page 10).  Dr. Brodersen specifically stated:  
 
            "I do believe that these conditions have been aggravated by 
 
            repetitive use of his upper extremities."  (Exhibit A, page 
 
            50).  Dr. Brodersen wrote to the insurance company on 
 
            January 11, 1988:
 
            
 
                 In regards to your recent inquiry about Lowell 
 
                 Torgerson it is my opinion that this man is unable 
 
                 to return to any job that requires repetitive use 
 
                 of his arms.  I feel that this will be a permanent 
 
                 restriction.
 
            
 
            (Exhibit A, page 52)
 
            
 
                 Defendants have introduced no evidence of any other 
 
            cause for claimant's permanent impairment or disability.
 
            
 
                 It is further determined that claimant is permanently 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            and totally disabled pursuant to Iowa Code section 
 
            85.34(2)(s).
 
            
 
                 Dr. Neff and Thomas W. Bower, licensed physical 
 
            therapist, determined that claimant had sustained a 15 
 
            percent impairment to each extremity (exhibit A, page 15).
 
            
 
                 Dr. Brodersen found:
 
            
 
                 On the basis of these findings, it is my opinion 
 
                 that he has an eight percent impairment of his 
 
                 right upper extremity because of the right ulnar 
 
                 nerve problem and a thirty-seven percent 
 
                 impairment of his right upper extremity on the 
 
                 basis of the median nerve problem.  This would be 
 
                 a total of forty-five percent impairment of his 
 
                 right upper extremity.
 
            
 
                 His left elbow with the slowing nerve conduction 
 
                 velocity and ulnar nerve would have a thirteen 
 
                 percent impairment and the median nerve at the 
 
                 wrist injury would cause a thirty-seven percent 
 
                 impairment.  This would be a fifty percent 
 
                 impairment of his left upper extremity.
 
            
 
                 At this point in time I believe that this 
 
                 evaluation follows the guidelines established by 
 
                 The American Medical Association for nerve 
 
                 injuries.
 
            
 
            (Exhibit A, pages 50 and 51)
 
            
 
                 Dr. Cooney of the Mayo Clinic stated:
 
            
 
                 Overall it was the opinion of the evaluator that 
 
                 the client would not be able to perform work as a 
 
                 meat trimmer due to the repetitive nature of the 
 
                 activities.  However, he would be able to perform 
 
                 work within the light level work demands.
 
            
 
            (Exhibit A, page 11)
 
            
 
                 These light level work demands were defined as not 
 
            lifting more than 15 pounds, not carrying more than 10 
 
            pounds, and not pushing or pulling more than 14.5 pounds of 
 
            force over a distance of 25 feet.  The employer had no work 
 
            within these restrictions and claimant therefore was unable 
 
            to return to work after September 10, 1987.
 
            
 
                 Claimant drew unemployment compensation generally from 
 
            January of 1988 through July of 1988 while he searched for 
 
            work, but was unable to find anyone willing to employ him 
 
            with his limitations of his hands and arms (claimant's 
 
            exhibit 13).
 
            
 
                 Claimant applied for and was denied Social Security 
 
            disability benefits, but after an appeal, he was awarded 
 
            permanent disability benefits on January 31, 1989.
 
            
 
                 The administrative law judge considered several 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            factors.  Claimant has a severe bilateral congenital and 
 
            probably hereditary hearing loss and he is required to wear 
 
            two hearing aids to record sounds.  His speech is also 
 
            slightly impaired.  Claimant has some back complaints from a 
 
            fall and takes Synthroid for a thyroid condition.  However, 
 
            it would appear that claimant was awarded Social Security 
 
            disability benefits on the basis of his bilateral hand and 
 
            arm disability.  All of his other problems predated 
 
            September 10, 1987 and did not affect his ability to work 
 
            (Second Injury Fund exhibit C).
 
            
 
                 Lynn M. Bursell, a vocational rehabilitation counselor 
 
            for the Iowa State Vocational Rehabilitation facility, 
 
            testified that she first saw claimant on April 25, 1988 when 
 
            he was referred to the Des Moines office by the Fort Dodge 
 
            office for an evaluation for either job placement or 
 
            appropriate training at the right academic level.  Claimant 
 
            took three days of standardized testing in the initial 
 
            program development area, selected some areas of employment 
 
            in which he would be interested, and was then tested and 
 
            evaluated by several other vocational rehabilitation 
 
            counselors.  Bursell reviewed the recommendations of the 
 
            other evaluators, then formed her own opinion and concluded:
 
            
 
                 A.  My final evaluation was that Lowell was not a 
 
                 competitively employable individual.  His 
 
                 disabilities with his arms and hands negated 
 
                 competitive employment.  He was slow.  His hands 
 
                 and wrists would swell.  He wouldn't be able to 
 
                 perform more than I think it was 22 minutes at one 
 
                 shot.
 
            
 
                 In addition to that, his academics were very low, 
 
                 and would not be conducive to a training 
 
                 situation, so we couldn't recommend training for a 
 
                 sit-down job, because he wouldn't have succeeded 
 
                 in a training program.
 
            
 
            (Transcript, page 81, lines 14 through 22)
 
            
 
                 She explained that by competitive employment she meant 
 
            that claimant was not able to perform at competitive rates 
 
            which means at a rate which would be beneficial to an 
 
            employer.  His speed is slow; he is not able to perform up 
 
            to standard rates (transcript, page 82).  In her written 
 
            report, Bursell commented:
 
            
 
                 It was observed that after a number of tasks, 
 
                 Lowell would sit with his hands and arms hanging 
 
                 straight down from his shoulders saying they felt 
 
                 as if they weighed 50 tons.  He was also observed 
 
                 rubbing his right elbow.  It was felt that he 
 
                 carried out the tasks with isolated skills and 
 
                 accuracy, but did not demonstrate that he could 
 
                 physically sustain a task over time.  Twenty-two 
 
                 minutes was the longest time he spent on any one 
 
                 activity.  He was in need of resting his arms 
 
                 before continuing with other activities.
 
            
 
            (Claimant's exhibit 5, page 2)
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Claimant scored below average on almost every test 
 
            administered.  Academically, his reading equivalency is 
 
            fifth grade, ninth month.  His mathematics equivalency was 
 
            fifth grade, third month (transcript, page 83).  On 
 
            mechanical reasoning, he scored in the first percentile 
 
            which is extremely low (transcript, page 84).  He scored at 
 
            the tenth percentile of mechanical reasoning and space 
 
            relations which is very low.  Ruler measuring was at the 50 
 
            percent accuracy level (transcript, page 84).  His 
 
            performance IQ was 86 which was below average; his verbal IQ 
 
            was 73 which might have been affected by his hearing loss 
 
            (transcript, pages 87 and 88; claimant's exhibit 5, page 2).
 
            
 
                 Nevertheless, Bursell concluded:  "It was felt that 
 
            competitive employment was highly unlikely given the pain 
 
            experience as the result of carpal tunnel syndrome."  
 
            Exhibit 5, page 3).  Bursell and several other vocational 
 
            counselors noted that claimant's test behavior was excellent 
 
            and that he exerted the maximum effort even at the expense 
 
            of his own physical cost.  Bursell concluded that his 
 
            disability was based on claimant's physical discomfort, 
 
            inability to maintain work on a continuous basis due to lack 
 
            of physical tolerance and also inability to be academically 
 
            inclined to allow him to pursue further training or get in a 
 
            nonphysical type of position (exhibit 5, page 3).
 
            
 
                 Claimant's low IQ disqualified him from many programs 
 
            that required education in a college or university setting, 
 
            a technical program or any training program that requires a 
 
            basic level of intelligence (transcript, page 88).  Bursell 
 
            recommended that claimant appeal his initial Social Security 
 
            denial of benefits (claimant's exhibit 5, page 3).  Bursell 
 
            added that his hearing loss was considered, however, the 
 
            reason that the evaluators said non-competitive employment 
 
            in most cases was because of the physical disabilities, the 
 
            problems with his dexterities (transcript, page 91).
 
            
 
                 In addition to his physical disability, other 
 
            industrial factors may be employed to determine total and 
 
            permanent disability under Iowa Code section 85.34(2)(s).  
 
            Jones v. Lamoni Products, Inc., file number 800310 (Arb. 
 
            Decn., May 29, 1991).  However, in this case there is 
 
            sufficient evidence to determine that claimant is 
 
            permanently and totally disabled due to the physical 
 
            disability in his hands and arms without more.
 
            
 
                 Claimant, born April 27, 1948, was 39 years old at the 
 
            time of injury, 41 years old at the time of hearing, and is 
 
            43 years old at the time of this decision.  He graduated 
 
            from high school as a special education student in his 
 
            twelfth year of school.  His only training subsequent to 
 
            high school was a butcher training course for which he 
 
            received a diploma.  Bursell concluded:  "The Academic 
 
            Preparation area found that both reading and math were too 
 
            low to consider formal training.  It was recommended that he 
 
            enroll in an adult basic education class to improve his 
 
            performances for personal use."  (Claimant's exhibit 5, page 
 
            2).
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Retraining, therefore, is not feasible in this case.  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).  Claimant is foreclosed 
 
            from his employment with this employer and all past 
 
            employments.  Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984); Michael v. 
 
            Harrison County, Thirty-Fourth Biennial Report of the 
 
            Industrial Commissioner, 218, 220 (Appeal Decision, January 
 
            30, 1979).
 
            
 
                 The testimony of Bursell and the reports of the other 
 
            rehabilitation counselors support the fact that claimant is 
 
            not competitively employable.  Bursell's testimony was 
 
            undisputed.  This evidence was not controverted, 
 
            contradicted, rebutted or refuted by any evidence on the 
 
            part of defendants.  Nor did any of the defendants attempt 
 
            to assist claimant in any way through the employment of 
 
            private vocational rehabilitation assistance.
 
            
 
                 With respect to his hearing loss, the Raven Progressive 
 
            Matrices, a non-verbal test of intelligence, was 
 
            administered and the client scored well within the below 
 
            average range of intelligence.  Bursell testified:  "The 
 
            hearing loss is considered, however, the reason that the 
 
            evaluators said non-competitive employment in most cases was 
 
            because of the physical disabilities, the problems with the 
 
            dexterities."  (Transcript, page 91).  Thus, claimant's 
 
            hearing loss was not the current cause of his disability and 
 
            untrainability (claimant's exhibit 5, page 14).
 
            
 
                 Claimant testified that his disability is that he has 
 
            numbness from the elbow down to the wrist and numbness of 
 
            the fingers in both arms and hands.  It was recorded and 
 
            claimant testified that he was unable to feel cuts and burns 
 
            that occurred to his right arm.
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant is permanently and totally disabled 
 
            and that his disability arises from his bilateral injury to 
 
            both arms simultaneously as a result of his employment- 
 
            related repetitive arm and hand movements for this one 
 
            employer which has been diagnosed as bilateral in nature 
 
            since April 15, 1982 by Dr. Grant (exhibit A, page 34).
 
            
 
                       liability of the second injury fund
 
            
 
                 It is determined that the Second Injury Fund is not 
 
            liable for claimant's disability for the reason that he has 
 
            basically one syndrome of injury to his median nerves at the 
 
            carpal tunnels and his ulnar nerves at the cubital tunnels 
 
            which arose essentially simultaneously while working for 
 
            employer.  Thus claimant does not have an injury and also a 
 
            previous injury to qualify for Second Injury Fund benefits 
 
            under Iowa Code section 85.64.  Himschoot v. Montezuma Mfg., 
 
            file numbers 672778 and 738235 (App. Decn., April 15, 1988).
 
            
 
                 It has been held that manifestation of one injury on 
 
            two occasions does not satisfy the requirement of prior 
 
            loss.  McMurrin v. Quaker Oats Co., I Iowa Industrial 
 
            Commissioner Report 222 (Appeal Decision 1981).  However, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            whether this set of facts would be considered a 
 
            manifestation of one injury on two occasions cannot be 
 
            determined because the McMurrin case does not set out the 
 
            specific facts of that injury.
 
            
 
                 It is claimant's contention that the 9.5 percent 
 
            disability to the right hand by Dr. Neff was the first 
 
            injury and the 50 and 45 percent disability to the left and 
 
            right hand by Dr. Brodersen is the second injury for the 
 
            purpose of second injury fund benefits.
 
            
 
                 It might be speculated that claimant did receive two 
 
            injuries.  It could be said that claimant received a 
 
            permanent injury to his right hand as a result of the 
 
            surgeries performed by Dr. Neff on May 2, 1986 and June 2, 
 
            1986 for which he received a permanent impairment rating and 
 
            received permanent partial disability benefits.  It could be 
 
            further speculated that this determination of a bilateral 
 
            injury to claimant's right and left arms which progressed to 
 
            the place where he was unable to work on or about September 
 
            10, 1987 and for which he received impairment ratings from 
 
            Dr. Neff and Dr. Brodersen constituted a second injury.  
 
            Nothing in section 85.64 bars the applicability of the 
 
            statute if the injury happens to be to two such members.  
 
            Saylor v. Swift & Co., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 282, 285 (1979).
 
            
 
                 Thus, if claimant met the requirements of both Iowa 
 
            Code section 85.34(2)(s) and also Iowa Code section 85.64, 
 
            then as a matter of policy, section 85.34(2)(s) should be 
 
            primary and section 85.64 should be secondary because it was 
 
            not the intent of the legislature to make the Second Injury 
 
            Fund liable for an injury for which the employer is 
 
            primarily liable.  In this case in particular, all of 
 
            claimant's symptoms, complaints, problems, surgeries and 
 
            disability all arose while working for one employer over the 
 
            period of his 11 1/2 year career as a butcher and box maker 
 
            for employer.
 
            
 
                 Wherefore, it is determined that the Second Injury Fund 
 
            of Iowa is not liable to claimant for his permanent and 
 
            total disability.
 
            
 
                  second injury fund credit for social security
 
            
 
                 Since it has been determined that the Second Injury 
 
            Fund is not liable for any benefits, this issue is now moot.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based upon the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made.
 
            
 
                 That claimant sustained a cumulative injury to both 
 
            hands and arms (bilaterally) which developed and occurred 
 
            simultaneously and resulted in an injury which arose out of 
 
            and in the course of employment with employer on or about 
 
            September 10, 1987, the date on which claimant was no longer 
 
            able to work.  Iowa Code section 85.3(1); Iowa Code section 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            85.34(2)(s); McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury of September 10, 1987 was the cause of 
 
            permanent impairment.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence and presented uncontroverted 
 
            evidence that he is permanently and totally disabled.  Iowa 
 
            Code section 85.34(2)(s); Iowa Code section 85.34(3).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant permanent total 
 
            disability benefits commencing on the date of the injury 
 
            September 10, 1987 at the stipulated rate of one hundred 
 
            eighty and 32/100 dollars ($180.32) per week for as long as 
 
            claimant shall remain permanently and totally disabled.
 
            
 
                 That defendants are entitled to a credit for thirty-six 
 
            and one-half (36 1/2) weeks of temporary and permanent 
 
            disability benefits paid to claimant prior to hearing at the 
 
            rate of one hundred eighty and 32/100 dollars ($180.32) per 
 
            week 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 attendance of the court reporter at hearing and the 
 
            transcript of the hearing, are charged to defendant employer 
 
            pursuant to rule 343 IAC 4.33 and Iowa Code section 
 
            86.19(1).
 
            
 
                 That defendants file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James A. Brewer
 
            Attorney at Law
 
            612 Kellogg Avenue
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            P.O. Box 847
 
            Ames, Iowa  50010
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1106; 1401; 1402.20
 
                           1402.30; 1402.40; 1804
 
                           2206; 2209; 2902; 3201
 
                           3202; 3203
 
                           Filed August 12, 1991
 
                           WALTER R. McMANUS, JR.
 
            
 
                       before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LOWELL TORGERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 863533
 
            WEBSTER CITY CUSTOM MEATS,    :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1106; 1401; 1402.20; 1402.30; 1402.40; 1804; 2206; 2209; 2902
 
            It was determined that 11 1/2 years of highly repetitive work 
 
            as a butcher and box maker for employer caused a bilateral 
 
            median nerve injury to the hands and a bilateral ulnar nerve 
 
            injury to the elbows which occurred simultaneously within the 
 
            definition of "caused by a single accident" in Iowa Code 
 
            section 85.34(2)(s).  Bilateral problems were not reported on 
 
            the first office call(s) but did begin some five years before 
 
            the injury date which occurred when claimant stated he was no 
 
            longer able to work and the Mayo Clinic corroborated that he 
 
            should seek other employment because he would not be able to 
 
            perform his work as a butcher and box maker.
 
            This case is distinguished from Himschoot and Kebernik where 
 
            bilateral symptoms were reported on the first office visit and 
 
            Jones (cited below) where bilateral symptoms were reported 
 
            about a month apart.  It was held that the symptoms occurred 
 
            essentially simultaneously within the purview of section 
 
            85.34(2)(s).  The statutory interpretation cites and 
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            principles used by Deputy Walleser to interpret section 
 
            85.34(2)(s) in Jones v. Lamoni Products, file number 800310, 
 
            filed May 29, 1991 were relied on and used in this case.
 
            Defendant employer's contention that this was an aggravation of 
 
            a preexisting condition was not accepted because on this 
 
            occasion claimant was forced to quit working.
 
            Dr. Neff awarded 15 percent to each arm; Dr. Brodersen awarded 
 
            45 percent and 50 percent to each arm respectively; Mayo Clinic 
 
            said claimant was foreclosed from repetitive employment and was 
 
            only able to perform very light employment below shoulder 
 
            level; the vocational rehabilitation counselor for the Iowa 
 
            State Rehabilitation Services said claimant was not 
 
            competitively employable due to the disability in his arms and 
 
            that he was not retrainable for any other work; the Social 
 
            Security Administration awarded claimant permanent and total 
 
            disability benefits primarily due to the disability in his 
 
            arms.  The permanent and total disability evidence was not 
 
            controverted by defendants.
 
            Even though the evidence supported permanent and total 
 
            disability caused by the disability to the arms alone, it was 
 
            held that other industrial factors could be used to determine 
 
            permanent and total disability as that term is used in section 
 
            85.34(2)(s), citing Jones again.
 
            Causal connection for the injury and disability were provided 
 
            by Dr. Brodersen and Mayo Clinic as well as claimant's 
 
            testimony and other medical records.
 
            
 
            3201; 3202; 3203
 
            No liability was found against the Fund because this was 
 
            determined to be a section 85.34(2)(s) case.  Himschoot, 
 
            Kebernik, and Jones.  Claimant contended there was this injury 
 
            and a prior loss for a section 85.64 claim against the Second 
 
            Injury Fund.  It was speculated that the evidence supported 
 
            such a conclusion, but as between section 85.34(2)(s) and 
 
            section 85.64, the legislature intended and the deputy decided 
 
            that the employer was primary, especially where, as here, the 
 
            entire course of events occurred while performing repetitive 
 
            work for one employer.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENE K. PETERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 911028
 
                                          :               863619
 
            IOWA DEPT. OF PUBLIC DEFENSE, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on August 7, 1991, in 
 
            Fort Dodge, Iowa.  Claimant seeks compensation for permanent 
 
            partial disability benefits as a result of two separate 
 
            injuries, one occurring on August 23, 1987 and the other on 
 
            March 6, 1989.  The record in the proceeding consists of the 
 
            testimony of the claimant and Cheryl Banks; claimant's 
 
            exhibits 1 through 19; and defendants' exhibits A through Z, 
 
            AA, BB and CC.
 
            
 
                                      issues
 
            
 
                 The issues for resolution regarding both injuries are:
 
            
 
                 1.  Whether claimant's alleged back injury arose out of 
 
            and in the course of claimant's employment.  As to 
 
            claimant's left foot injury on August 23, 1987, this is not 
 
            an issue.
 
            
 
                 2.  Whether claimant's alleged disabilities to his left 
 
            lower extremity and back are causally connected to 
 
            claimant's respective injuries;
 
            
 
                 3.  Whether rule 80 sanctions should be assessed 
 
            against claimant;
 
            
 
                 4.  Whether claimant is entitled to 86.13 penalty 
 
            benefits;
 
            
 
                 5.  Whether there should be 85.38(2) credits to 
 
            defendants;
 
            
 
                 6.  Claimant's entitlement to 85.27 medical benefits.  
 
            The amount of medical in dispute is $1,880.43 (Claimant's 
 
            Exhibit 19).  The dispute is causal connection and 
 
            authorization;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 7.  As to the August 23, 1987 injury, the extent of 
 
            permanent disability;
 
            
 
                 8.  As to the March 6, 1989 injury, an additional issue 
 
            is the nature and extent of claimant's disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 61-year-old high school graduate.  He 
 
            related his past work prior to his beginning work with 
 
            defendant employer as a security guard at Camp Dodge in 
 
            1984.  His past jobs involved farming, construction work and 
 
            security work.
 
            
 
                 Claimant's job with defendant employer involves the 
 
            care of the grounds, buildings, janitor work, painting, snow 
 
            removal and mowing, in addition to military security.  He 
 
            said 20 percent of his job is devoted to security work and 
 
            the balance to janitorial and maintenance.  He described 
 
            what his job entails.
 
            
 
                 Claimant said that, on August 23, 1987 while on a 
 
            ladder trying to fix a downspout at work, the ladder shifted 
 
            and claimant came down hard on his left foot and heel.  Upon 
 
            hitting the ground he felt a fire-like pain go up his leg.  
 
            He reported his injury and missed no time from work at that 
 
            time.  He sought medical treatment ten days after that 
 
            event.  It is obvious claimant did not think his injury was 
 
            as serious as it was and thought that it would heal without 
 
            any further problems.
 
            
 
                 Claimant testified his foot became so bad he could 
 
            hardly walk so he had surgery in April 1988.  He said his 
 
            healing period was paid until his April 1988 surgery.  He 
 
            contends the surgery did not help and, in fact, his foot 
 
            regressed backwards.
 
            
 
                 On March 6, 1989, claimant was working the 12:00 
 
            midnight to 8:00 a.m. shift and the weather was bitter cold.  
 
            There was glaring ice on the ground.  Claimant indicated 
 
            that while he was checking defendant employer's premises, he 
 
            slipped on the ice and fell backwards.  Claimant sought 
 
            medical treatment.
 
            
 
                 Claimant acknowledged he incurred a 12 percent 
 
            permanent impairment to his right shoulder in May 1985 and 
 
            that it never completely healed but he could use it.  He 
 
            indicated he compensated by using his left arm.
 
            
 
                 Claimant said he has had injections in the shoulder 
 
            which cut down the pain and gives him six to eight hours 
 
            relief.  He said his last shot was four to five weeks ago.  
 
            He has had chiropractic treatments for his low back prior to 
 
            1989 and various treatments prior to his 1987 and 1989 
 
            alleged injuries.  Claimant contends his back never affected 
 
            his work prior to his March 6, 1988 alleged injury.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant said he desired to work until age 65 or longer 
 
            but does not know if he can reach that goal.  When claimant 
 
            was told that Sergeant Duncan said claimant was doing his 
 
            job very well, claimant said, "yes, he takes pride in his 
 
            job."
 
            
 
                 Claimant admitted he never heard of nor was he ever 
 
            treated by David R. Archer, M.D., prior to 1991.  He did not 
 
            disagree that Dr. Archer was a family practitioner who spent 
 
            a lot of time taking a history, no x-rays and no lab tests.  
 
            He admitted he saw several doctors who treated him prior to 
 
            seeing Dr. Archer.  Claimant said he never returned to any 
 
            of these doctors for a rating, but instead his attorney 
 
            asked the state to pay for Dr. Archer's evaluation.  The 
 
            doctors to whom claimant went before going to Dr. Archer 
 
            never gave any permanent impairment ratings.  Claimant did 
 
            not disagree that Samir R. Wahby, M.D., related what 
 
            claimant could and could not do and on August 8, 1988, 
 
            indicated claimant was fit to do all his activities.  
 
            Claimant could not recall whether any treating physician 
 
            told him he should not return to the job due to his back nor 
 
            suggested a job modification.
 
            
 
                 Claimant said he did not know the state offered to pay 
 
            him for his foot based on Dr. Archer's permanency rating.  
 
            He then changed his mind and said "yes."  He was told that 
 
            but said he wasn't told claimant would pay permanency on the 
 
            left lower extremity injury.
 
            
 
                 Claimant was asked as to the five pages of medical 
 
            records Dr. Archer was given versus the 200 pages his 
 
            attorney gave to defendants regarding claimant's medical 
 
            history.  Claimant did not know why the doctor did not have 
 
            all of them, if that is true.  The undersigned might note at 
 
            this point that defendants' attorney misinterpreted Dr. 
 
            Archer's comment in his deposition (Cl. Ex. 1, p. 4).  
 
            Defendants' attorney was not present at that deposition per 
 
            agreement but the undersigned interprets the doctor's 
 
            comment to indicate that his history summary is about five 
 
            pages and the doctor is not referring to the fact that he 
 
            only had five pages in total of claimant's medical records.
 
            
 
                 Claimant was asked why Dr. Archer did not relate in his 
 
            deposition the history of claimant's 1973 car accident which 
 
            resulted in several injuries including a shattered right 
 
            knee.  Claimant was in the hospital eight weeks.  Claimant 
 
            said he presumed the doctor had the medical records 
 
            involving this injury.
 
            
 
                 Defendants asked claimant several questions as to his 
 
            medical history and complaints and it appears claimant did 
 
            not disclose all of these to the doctor when he was examined 
 
            by him.
 
            
 
                 Claimant then said his memory is not as good as it used 
 
            to be.  He sometimes forgets where he is.  Claimant said 
 
            this is the result of his 1973 car accident.
 
            
 
                 Claimant doesn't recall sending the disputed bills (Cl. 
 
            Ex. 19) to the department of personnel.  In noticing 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's demeanor, it would appear he didn't.  It seems 
 
            interesting to the undersigned that there is a bill dispute 
 
            and the one who would be the payer of proper bills has never 
 
            received them.  It appears from the comments of the parties 
 
            that these bills might not have been in dispute had the 
 
            defendants been made aware of them.  It also appears the 
 
            bills may have been sent to an alleged representative of 
 
            defendants and not passed on to the proper department.
 
            
 
                 Cheryl Banks, manager of the state's workers' 
 
            compensation section, has a record of payments made on 
 
            behalf of claimant.  She said 29.714 weeks of healing period 
 
            was paid to claimant regarding claimant's foot injury of 
 
            August 23, 1987, and over $7,000 in medical was paid.  She 
 
            does not recall receiving a report from Dr. Archer giving an 
 
            impairment rating on claimant's left lower extremity nor any 
 
            evidence of a denial of a medical bill.  She said her 
 
            records regarding the August 23, 1987 injury show that any 
 
            bill they received was paid.
 
            
 
                 As to claimant's March 6, 1989 alleged injury, no 
 
            medical bills were paid and she has no evidence of any bills 
 
            being submitted.  She said the file does not indicate any 
 
            entitlement to claimant for any temporary disability 
 
            benefits.  She said the file on this alleged injury shows no 
 
            loss of time for work by claimant, no report from any 
 
            authorized doctor, as to any permanency nor evidence of 
 
            permanent disability payments made.
 
            
 
                 She related she reviewed Dr. Archer's report.  Based on 
 
            that report, a settlement offer was made to claimant based 
 
            on the permanent impairment rating of the left foot and 
 
            included payment of any outstanding medical.  She said it 
 
            did not include any payment on claimant's alleged back 
 
            problem.
 
            
 
                 She said Dr. Archer was not an authorized doctor and 
 
            never treated claimant.  He first saw claimant in late April 
 
            1991.  She indicated the following were facts that she 
 
            considered in not paying any benefits as to claimant's 
 
            alleged March 6, 1989 back injury:  An intervening right 
 
            ankle injury; claimant's back complaints prior to 1987 and 
 
            1989; no permanent impairment rating by a treating doctor; 
 
            and no job modification requested.  She related that when 
 
            the state requested a rating from Dr. Archer it was refused.
 
            
 
                 Ms. Banks agreed that no separate offer was made for 
 
            the back but the offer regarding claimant's left lower 
 
            extremity included both cases, the back and the foot.  She 
 
            said these two cases were lumped together.  She indicated 
 
            she received Dr. Archer's report yesterday and it did not 
 
            say anything as to claimant's low back.  This comment by Ms. 
 
            Banks is confusing to the undersigned in that there are 
 
            letters dated May 3, 1991 and June 12, 1991 by Dr. Archer to 
 
            claimant's attorney.  Although there is no evidence that 
 
            claimant's attorney sent these to defendants, it is very 
 
            surprising that Ms. Banks did not know  of these until 
 
            August 6, 1991.  The May 3, 1991 letter from Dr. Archer to 
 
            claimant's attorney (Cl. Ex. 4) has a 10 percent permanent 
 
            partial rating for claimant's lower back.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Archer testified by way of his deposition taken 
 
            July 23, 1991 (Cl. Ex. 1).  As set out therein, by agreement 
 
            of the attorneys, defendants' attorney did not appear.  Dr. 
 
            Archer is a family practitioner licensed in Iowa in 1986.   
 
            He saw claimant on April 23, 1991, for purposes of 
 
            examination and evaluation.  The history included alleged 
 
            left front pain from an August 1987 injury, alleged right 
 
            upper extremity pain and low back pain and right hip pain 
 
            from a fall in March 1989.  He said claimant did not convey 
 
            any other history but he did have claimant's old medical 
 
            records.  The doctor said his history summary contained 
 
            about five pages.  His exam revealed:  Painful right 
 
            shoulder, strong right shoulder with a full active and 
 
            passive range of motion with elevation restriction for an 
 
            old injury.  Claimant also had pain into the low back and in 
 
            the hamstring area after the straight leg raising.  The 
 
            doctor opined a 10 percent permanent impairment of the lower 
 
            extremity extending the AMA Guides to include pain or other 
 
            causes of function of the foot.  The doctor said that using 
 
            the Guides solely makes it difficult to assign a percentage.  
 
            This doctor, like many others, recognized in his testimony 
 
            the deficiency of the AMA Guides in certain scheduled member 
 
            cases.  He said claimant has little useful motion in the 
 
            hind foot.
 
            
 
                 Dr. Archer opined a 10 percent permanent impairment by 
 
            the AMA Guides to claimant's body as a whole due to his 
 
            March 6, 1989 injury to his back.  The doctor causally 
 
            connected claimant's foot problems to his August 23, 1987 
 
            fall and his back problems to his March 6, 1989 fall on the 
 
            ice (Cl. Ex. 1, pp. 7-10; Cl. Ex. 4).
 
            
 
                 The doctor indicated claimant probably would not be 
 
            able to perform his work with comfort, and certainly not as 
 
            efficiently as he did prior to his injury.  He suggested 
 
            claimant should probably seek other employment or his job 
 
            description altered.  He classified claimant for sedentary 
 
            work and indicated claimant is not a surgical candidate, but 
 
            should probably receive physical therapy for his back and 
 
            take medication.
 
            
 
                 As to claimant's foot, the doctor said the prior 
 
            surgery was highly successful but not amenable to surgery 
 
            again (Cl. Ex. 1, p. 11).  Claimant's exhibit 7 reflects 
 
            claimant fell on the ice in January 1988 injuring his right 
 
            elbow.
 
            
 
                 Leonard A Darling, Sr., testified by way of his 
 
            deposition on August 2, 1991, that he has worked for 
 
            defendant employer for nine years as of November 1991 as a 
 
            security guard.  He does not work the same shift as the 
 
            claimant but does the same type of job.  He said claimant 
 
            has not talked much about his injury but he has noticed that 
 
            claimant limps and moans at times.
 
            
 
                 He could not remember claimant complaining about his 
 
            shoulder in the last year or two.  He has no personal 
 
            knowledge of claimant's fall on August 23, 1987, but was 
 
            told about it.  He really only sees claimant at the shift 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            change which involves only a few minutes.  He described the 
 
            duties of a security guard.
 
            
 
                 Darling testified as to his own back problems.  He 
 
            indicated that in this type of job the amount of exertion 
 
            applied depends on how much one wants to put into it.  He 
 
            has had no one help him do his work.  He said defendant 
 
            employer no longer has light duty work.  He said that if his 
 
            own back was hurting, he would have problems with some of 
 
            the chores that he and the claimant do.
 
            
 
                 Gale Duncan testified by way of his deposition 
 
            (Defendants' Exhibit BB) on August 2, 1991, that he is the 
 
            communications maintenance manager and maintenance 
 
            supervisor on the drill status.  He has supervised claimant 
 
            off and on.  He has knowledge of claimant's work 
 
            performance.  His direct observation of claimant the last 
 
            few years has been a little bit.  He described what he knew 
 
            of claimant's injury and walking thereafter.  He indicated 
 
            claimant was off work at times.  Duncan related the problem 
 
            the employer had with claimant after his August 1987 injury 
 
            in that claimant would not keep him informed as to what was 
 
            happening as to his work status or availability.  Claimant 
 
            would not cooperate or call them.  Duncan did indicate 
 
            claimant did deliver "off work slips" to them.
 
            
 
                 Duncan had an accident report of claimant's March 6, 
 
            1989 fall on the ice.  He said claimant had stomach problems 
 
            around the same time and was off for that also.  He related 
 
            claimant's fall at home where he broke his ankle.  He wasn't 
 
            sure when claimant came back to work but indicated that in 
 
            October 1989 claimant was able to come back except for some 
 
            heavier duties.  He did indicate claimant came back to work 
 
            when the doctor said he could come back,  He said claimant's 
 
            time off after his March 1989 fall on the ice was for his 
 
            peptic ulcer and his left (sic) ankle injury at home.  It 
 
            would appear that this witness is getting claimant's left 
 
            ankle injury of August 1987 mixed up with the right ankle 
 
            injury at home that occurred in June of 1990.  The 
 
            undersigned believes that this witness meant the right 
 
            ankle.  Duncan said if claimant had any time off from the 
 
            March 1989 fall, it was minimal, but she could not determine 
 
            any time off (Defendants' Ex. BB, p. 20).
 
            
 
                 Duncan related she had received no functional 
 
            impairment rating from any of claimant's treating doctors as 
 
            to either claimant's back, foot or arm (Def. Ex. BB, p. 21).  
 
            He indicated that, as to any reports or records he has,  
 
            claimant can return to work without restrictions.  He said 
 
            that if claimant had any problems, he could come to him or 
 
            any of his other supervisors and they would accommodate him 
 
            as they did in the past when he was given light duty.
 
            
 
                 On cross-examination, Duncan said he did not have a 
 
            copy of Dr. Archer's report indicating permanent impairment.  
 
            When asked if there are any light duty jobs available, he 
 
            said the security job is light duty (Def. Ex. BB, p. 24).  
 
            He said he worked up the job description for claimant.  He 
 
            said if there was a heavy job claimant could not do, the 
 
            employer would work with claimant.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Duncan described the physical requirements of 
 
            claimant's job and the required lifting would be no more 
 
            than 20 or 25 pounds which involves carrying out the trash 
 
            (Def. Ex. BB, p. 14).  Duncan said claimant is dong very 
 
            well in his job performing 100 percent.  He said claimant 
 
            even qualified on the small arms with his arm that he has 
 
            had problems with.  He said he would not qualify on the 
 
            small arms (shooting a gun).  He indicated that claimant 
 
            still does not communicate.
 
            
 
                 On June 12, 1991, Dr. Archer wrote that claimant had a 
 
            10 percent impairment of the lower extremity which he 
 
            converted to 4 percent body as a whole.  He said this is 
 
            permanent unless it can be successfully operated on (Def. 
 
            Ex. H).  Defendants' exhibit AA  refers to claimant's April 
 
            19, 1988 surgery on his left foot.
 
            
 
                 As to the August 23, 1987 injury to claimant's left 
 
            lower extremity, it would appear that the parties' main 
 
            fight currently is because both cases could not be settled 
 
            with an offer made which offered benefits only as to the 
 
            August 1987 injury based on functional impairment rating 
 
            given in relation thereto.
 
            
 
                 Defendants rightfully argue that there is no permanent 
 
            functional impairment rating by any treating doctor, 
 
            authorized or unauthorized, as to claimant's foot or left 
 
            lower extremity.  They contend that Dr. Archer, a family 
 
            doctor who is not a specialist, comes late in the game and 
 
            issues the only rating.  Defendants further argue that 
 
            claimant should have gotten or requested a rating from the 
 
            treating doctors.  Defendants also contend it is not their 
 
            obligation to get a rating and that claimant should have.  
 
            It appears claimant disagrees with defendants' position as 
 
            to whose obligation it is to get a rating but the claimant 
 
            also is reprimanded by defendants for getting another doctor 
 
            to evaluate and examine claimant.  The undersigned questions 
 
            the tactics under the circumstances of this case and yet 
 
            this is a right claimant has.  Defendants question Dr. 
 
            Archer's qualifications as an examiner and evaluator versus 
 
            the abilities of the other treating physicians.  Claimant 
 
            seemed to indicate that this doctor is the only one known in 
 
            this area who has the familiarity or ability to use the AMA 
 
            Guides and make these type of evaluations.  Claimant also 
 
            reprimands the defendants for not being at the deposition to 
 
            challenge this doctor through normal questioning.  The 
 
            undersigned notes that the doctor's background indicates 
 
            that he does have some specialized experience in determining 
 
            for certain divisions, federal and state, an impairment 
 
            evaluation.  It is not absolutely clear as to whether 
 
            claimant is in good faith contending claimant also incurred 
 
            a back injury or an injury to the body as a whole as a 
 
            result of the August 23, 1987 injury in addition to a left 
 
            foot injury.
 
            
 
                 The undersigned finds that the medical records do not 
 
            support any contention that claimant incurred a back injury 
 
            as a result of an August 23, 1987 injury.  The undersigned 
 
            finds that the overwhelming evidence supports the fact that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant incurred a foot injury on August 23, 1987 which 
 
            arose out of and in the course of his employment.  The 
 
            doctor uses the words "left lower extremity."  Dr. Archer 
 
            wrongfully converted the lower left extremity to a body as a 
 
            whole.  It is obvious in his conversion that he was 
 
            referring the left lower extremity as the leg and not the 
 
            foot.  It is easily determinable when looking at the AMA 
 
            Guides in which a 10 percent impairment to the lower 
 
            extremity converts to 4 percent of the whole person, if such 
 
            conversion was proper.  Looking at the same Guides on page 
 
            58, a 14 percent permanent impairment of the foot converts 
 
            to a 10 percent lower extremity permanent impairment.  The 
 
            undersigned finds that the fact that other treating doctors 
 
            did not arrive at an impairment does not mean that Dr. 
 
            Archer's impairment rating is invalid.  It is surprising to 
 
            the undersigned that other doctors were not asked for a 
 
            rating.  The undersigned finds that claimant has a 14 
 
            percent permanent functional impairment to his left foot 
 
            which arose out of and in the course of his employment on 
 
            August 23, 1987.
 
            
 
                 The parties agreed that all healing period was paid as 
 
            to this August 1987 injury.  They actually agreed that this            
 
            was a scheduled member injury but yet in their issues they 
 
            seem to confuse the fact as to whether a back injury was 
 
            also combined or included in the August 23, 1987 injury.
 
            
 
                 The undersigned finds that claimant is entitled to 21 
 
            weeks of permanent partial disability benefits at the rate 
 
            of $211.71 as a result of the August 23, 1987 work injury.  
 
            Defendants have paid 29.714 weeks of healing period benefits 
 
            regarding this August 23, 1987 injury and should be given 
 
            credit for same.  As mentioned earlier, there has been no 
 
            dispute as to healing period for this particular injury.  
 
            Although it appears all the medical bills that were 
 
            submitted regarding the August 23, 1987 injury were paid by 
 
            defendants, there may be a dispute as to existing bills that 
 
            were not submitted to defendants or to the right department.  
 
            The undersigned finds that defendants shall pay all the 
 
            claimant's medical bills regarding his August 23, 1987 foot 
 
            injury or reimburse the claimant for bills, if any, he may 
 
            have paid out of his own pocket.  The remaining issues as to 
 
            this August 23, 1987 injury will be later addressed.
 
            
 
                 The attention will now be directed to the March 6, 1989 
 
            alleged injury.  It appears defendants contend that claimant 
 
            had prior back problems that are the cause of his current 
 
            condition.  Defendants also contend that Dr. Archer did not 
 
            have the complete medical history of claimant in order to 
 
            correctly determine any impairment claimant may have 
 
            regarding his back injury.  Defendants make the same 
 
            contentions as to claimant not obtaining any rating from the 
 
            treating doctors but going to another doctor not authorized 
 
            and who was not a specialist to obtain a body as a whole 
 
            rating.  There is nothing in the law that prevents a 
 
            claimant from seeking his own doctor.  The only problem 
 
            claimant may have regarding that is that the doctor bill 
 
            would be totally paid by the claimant and not by defendants.  
 
            Defendants indicate that Dr. Archer only had five pages of 
 
            claimant's medical and yet defendants received approximately 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            200 pages.  As indicated earlier, the undersigned does not 
 
            interpret the doctor's comment the same as defendants plus 
 
            the fact defendants could have been at the deposition if 
 
            they want to and could have clarified that matter.  The 
 
            undersigned might add that there is a lot of medical 
 
            evidence in the form of exhibits presented that is either 
 
            worthless, immaterial or duplicating.  The deputy does not 
 
            rule on the medical based on the number of pages or the 
 
            weight of exhibits but on the quality and the materiality of 
 
            the exhibits along with other evidence.  The amount of 
 
            duplication in this record is uncalled for.
 
            
 
                 The greater weight of medical evidence and other 
 
            testimony indicates that claimant's past medical and his 
 
            past accidents or injuries did not and were not having an 
 
            effect on claimant's lower back or shoulder prior to his 
 
            March 6, 1989 fall on the ice.  Claimant was performing his 
 
            job and was being affected by his left foot injury but not 
 
            by any other injury.  Even with his foot injury he was 
 
            adequately performing his job until he fell on March 6, 
 
            1989.  The undersigned believes Dr. Archer is qualified to 
 
            make a rating.  He is the only doctor who made a permanent 
 
            impairment rating.  There is no dispute that claimant fell 
 
            on March 6, 1989.  The undersigned finds that the greater 
 
            weight of evidence shows that claimant did incur an injury 
 
            on March 6, 1989, that arose out of and in the course of his 
 
            employment and that said work injury resulted in claimant 
 
            incurring a 10 percent impairment to his body as a whole as 
 
            a result of a low back injury.  Dr. Archer has causally 
 
            connected claimant's low back injury to his March 6, 1989 
 
            fall, the same as he causally connected claimant's left foot 
 
            to claimant's August 23, 1987 injury.
 
            
 
                 The parties are disputing the 85.27 medical benefits.  
 
            The amount in dispute is $1,880.43, represented by 
 
            claimant's exhibit 19.  It seems there may not be as big a 
 
            dispute concerning these bills as indicated as it appears 
 
            the defendants claim they never received the bills or at 
 
            least were never received by the proper department.  
 
            Claimant seems to indicate they sent the bills but there is 
 
            no proof they sent them to the right department.  It also 
 
            appears that the bills possibly may have been sent to defen
 
            dants' attorney and not forwarded.  Claimant should not be 
 
            penalized in this instance because of the lack of 
 
            organization of either claimant's attorney, defendants' 
 
            attorney or the State of Iowa, itself.  Dr. Archer, who is 
 
            with the McCrary-Rost Clinic, incurred a bill for his 
 
            evaluation examination in the amount of $120.  This was not 
 
            authorized and defendants are not obligated to pay this 
 
            bill.  The remaining bills in the amount of $1,660.43 were 
 
            incurred as a result of claimant's injuries and it would 
 
            appear that most of this, if not all, was attributable to 
 
            claimant's March 6, 1989 injury since defendants claim they 
 
            paid all the bills regarding the August 23, 1987 injury.  It 
 
            could be that some bills were not sent or received as 
 
            earlier discussed.  Notwithstanding the situation, 
 
            defendants are to pay the medical bills incurred as a result 
 
            of claimant's March 6, 1989 injury.  Those bills appear to 
 
            be at this time $1,660.43 after deducting the $120 bill of 
 
            Dr. Archer.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 The parties dispute whether there should be credit for 
 
            $2,257.41 under section 85.38(2).  The undersigned is not 
 
            sure of the nature of this dispute after hearing arguments 
 
            or comments of the parties.  The undersigned's position is 
 
            that in light of this decision, defendants are to pay 
 
            claimant's medical bills incurred as a result of both 
 
            injuries.  Likewise, the claimant is not to be reimbursed 
 
            for medical bills he did not pay nor is defendants to pay 
 
            the same bill twice or pay more than they would otherwise be 
 
            obligated to under any special arrangements they may have 
 
            with any provider except for the $120.  If defendants have 
 
            some special arrangement with any provider that would lessen 
 
            the bill, claimant should likewise get the benefits of that 
 
            agreement.  Claimant shall not be obligated to pay any of 
 
            these bills regardless of any particular arrangement 
 
            defendants might have with the provider.  Defendants shall 
 
            hold claimant harmless in light of this decision on these 
 
            bills.  If defendants can obtain a discount that is up to 
 
            defendants as long as this does not affect claimant as to 
 
            any remaining amount that would otherwise be claimed against 
 
            the claimant.   Since the record is not clear on this, the 
 
            undersigned finds that defendants shall not be given credit 
 
            for the $2,257.41 except as heretofore provided.
 
            
 
                 The medical evidence, and particularly the records of 
 
            defendants, shows that claimant did not miss any time from 
 
            work that is attributed to or is caused by claimant's March 
 
            6, 1989 injury.  It appears any time claimant had off was 
 
            from either a stomach or ulcer illness or when claimant 
 
            injured his right ankle.  Claimant has the burden of proof 
 
            on this matter and if, in fact, he contends there is healing 
 
            period, he has failed on his burden of proof regarding any 
 
            healing period.
 
            
 
                 The next determination is whether claimant incurred any 
 
            industrial disability regarding his March 6, 1989 injury.  
 
            Claimant is 61 years old.  The medical records indicate that 
 
            claimant is getting as good a rating in his job performance 
 
            now as he did before his March 6, 1989 injury, particularly 
 
            as this injury would affect his performance.  The evidence 
 
            indicates he is able to do his job.  Claimant's transferable 
 
            skills are limited and for all purposes he would most likely 
 
            have a difficult time finding employment with another 
 
            employer regardless of the field, particularly for the 
 
            income that he is currently earning.  His income is 
 
            basically similar to the income he has been earning.  
 
            Claimant's income record does show a variance in his income 
 
            over the years.  The undersigned finds that the evidence 
 
            does not show any reason for the fluctuation in claimant's 
 
            income to be necessary the result of his injury of March 6, 
 
            1989.
 
            
 
                 Loss of income or the same income is only one criteria 
 
            in determining industrial disability.  Claimant has had 
 
            other medical problems.  The undersigned finds that taking 
 
            into consideration all those criteria in determining 
 
            industrial disability, namely but not necessarily limited 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            to, claimant's work experience before and after his March 6, 
 
            1989 injury, his intelligence, work history before and after 
 
            said injury, location, severity of the injury, healing 
 
            period, age, motivation, education, functional impairment, 
 
            and the employer's accommodation to keep him employed, the 
 
            undersigned finds that claimant has incurred a 10 percent 
 
            industrial disability as a result of his March 6, 1989 
 
            injury.
 
            
 
                 The parties disputed when these benefits would begin if 
 
            awarded.  The undersigned finds that Dr. Archer's rating, 
 
            which was the only rating in this case, was issued in his 
 
            report of May 3, 1991 (Cl. Ex. 4).  The undersigned finds 
 
            that claimant's permanent partial disability benefits as to 
 
            his March 6, 1989 injury shall begin May 4, 1991.
 
            
 
                 Claimant requests 86.13 penalty benefits as to both 
 
            injuries.  Regarding the March 6, 1989 injury, the 
 
            undersigned finds that claimant has failed to show that 
 
            defendants unreasonably withheld or delayed benefits.  The 
 
            doctor's rating was approximately three months before the 
 
            actual hearing of this case.  Defendants had a legitimate 
 
            reason for disputing benefits concerning this March 6, 1989 
 
            injury.  Claimant is not entitled to any 86.13 penalty 
 
            benefits based on this injury.
 
            
 
                 Regarding the August 23, 1987 injury, it would appear 
 
            that there was no real dispute as to liability as the injury 
 
            arose out of and in the course of claimant's employment.  
 
            Defendants paid healing period benefits.  The payment is not 
 
            admission of liability but it is obvious there was liability 
 
            and defendants so determined.  Defendants attempted to 
 
            settle this case and feel that they should not be faced with 
 
            an 86.13 penalty benefit.  Defendants feel so strongly 
 
            concerning this that they have asked for rule 80 sanctions 
 
            which will be discussed hereafter.  Defendants wanted to tie 
 
            both cases together and their settlement proposal was to pay 
 
            the impairment rating on the scheduled member injury of 
 
            August 23, 1987 but nothing on the March 6, 1989 injury.  
 
            The condition was that both would have to be settled and 
 
            disposed of at the same time.  The undersigned does not know 
 
            whether the impairment rating offered to be paid was based 
 
            on 10 percent of the lower extremity or 14 percent of 
 
            claimant's left foot but the amounts are basically the same 
 
            as to the number of weeks, namely 22 weeks versus 21 weeks.  
 
            Defendants have no legal authority to force a party to 
 
            settle two cases for the price of one even though it is 
 
            their right to offer to do so.
 
            
 
                 The next question which arises is what, if anything, 
 
            would defendants pay or be obligated to pay or what was 
 
            claimant contending was owed.  It was not until May 3, 1991 
 
            that claimant obtained his own unauthorized examining 
 
            physician, Dr. Archer, to come up with a rating.  Claimant 
 
            has never requested a rating from his treating doctors.  
 
            Although it is not necessarily so, in the majority of the 
 
            cases involving a scheduled injury, the benefits are paid 
 
            based on the extent of the percent of functional impairment.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            At least, this is the guide often used by the parties.  At 
 
            such time as impairment was arrived at on May 3, 1991 (Cl. 
 
            Ex. 4), this case was postured for trial.  If claimant 
 
            desired earlier payments he should have requested either a 
 
            rating earlier or not have delayed matters and attempted to 
 
            obtain a rating from the treating physicians who have been 
 
            treating claimant over a considerable period of time.
 
            
 
                 Under the circumstances of this case, the undersigned 
 
            finds that defendants were not unreasonable in withholding 
 
            or delaying payments.  Defendants are not responsible for 
 
            paying claimant 86.13 penalty benefits regarding the August 
 
            23, 1987 injury.
 
            
 
                 The remaining issue is whether there should be rule 80 
 
            sanctions issued against the claimant herein.  The 
 
            undersigned separated this matter from the rest of the 
 
            hearing and took it up at the end of the parties' evidence 
 
            regarding the above two injuries.  Defendants were give the 
 
            first opportunity since they raised the issue to show why 
 
            the undersigned should issue rule 80 sanctions against 
 
            claimant.  Claimant was then given a chance to respond.
 
            
 
                 It was obvious through the arguments of counsel that if 
 
            claimant was willing to drop his 86.13 penalty benefits con
 
            tention against defendants, then defendants were willing to 
 
            withdraw their request for rule 80 sanctions.  Neither party 
 
            budged on these issues.  Defendants seem to base their 
 
            contentions on the fact that claimant continued to put forth 
 
            his case and request for penalty benefits for delay of 
 
            payment of benefits even though claimant refused to obtain 
 
            any rating from the authorized treating physicians.  
 
            Defendants had paid all the medical bills submitted to them.
 
            
 
                 It would appear from the evidence that, even though Dr. 
 
            Archer submitted an impairment rating on May 3, 1991, 
 
            defendants did not have that until sometime later.  One of 
 
            their own witnesses testified that they had just received it 
 
            the day before the hearing.  Defendants argued that it is 
 
            claimant's obligation to get a rating and not defendants and 
 
            that the brining of the 86.13 penalty issue is an abuse 
 
            since there was no basis for raising this issue.  Defendants 
 
            contend that Dr. Archer was not the most qualified to issue 
 
            a rating and was unauthorized and had inadequate history 
 
            upon which he could give a rating.  Claimant contends that 
 
            not only was Dr. Archer qualified but they had a right to go 
 
            to another doctor to get a rating.  Claimant's biggest and 
 
            most valid contention is that they should not be forced to 
 
            settle one case, namely, the March 6, 1989 case, for nothing 
 
            in order to get a reasonable and legitimate settlement for 
 
            the August 23, 1987 injury based on a scheduled member im
 
            pairment rating.  Claimant was faced with an all or none 
 
            proposition.  Although it is true that defendants do not 
 
            necessarily want to agree with the 10 percent impairment 
 
            rating of Dr. Archer and may contend that is a concession on 
 
            their part, it is obvious from the evidence herein that 
 
            claimant had an impairment to his left foot as a result of 
 
            an August 23, 1987 injury and 10 percent would not be an 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            unreasonable conclusion based on the evidence.
 
            
 
                 The undersigned finds that with the introduction in 
 
            this issue of defendants forcing a settlement upon claimant 
 
            to settle both cases for what would, in fact, be the 
 
            reasonable amount that would be paid on one injury, namely, 
 
            the August 23, 1987 injury, there is not a violation of rule 
 
            80 of the Iowa Rules of Civil Procedure.  The undersigned 
 
            finds that claimant's actions were not frivolous or 
 
            interposed for the improper purpose of harassment causing 
 
            unnecessary delay or needless increase of cost of 
 
            litigation.  Rule 80 sanctions shall not be issued herein.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on August 23, 1987 
 
            and March 6, 1989 which arose out of and in the course of 
 
            his employment. McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of August 
 
            23, 1987 and March 6, 1989 are causally related to the 
 
            disability on which he now bases his claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 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).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            1983).
 
            
 
                 Iowa Code section 86.13 provides, in part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Iowa Rule of Civil Procedure 80 provides, in part:
 
            
 
                    a.  ....Counsel has read the motion, pleading, 
 
                 or other paper; that to the best of counsel's 
 
                 knowledge, information, and belief, formed after 
 
                 reasonable inquiry, it is well grounded in fact 
 
                 and is warranted by existing law or a good faith 
 
                 argument for the extension, modification, or 
 
                 reversal of existing law; and that it is not 
 
                 interposed for any improper purpose, such as to 
 
                 harass or cause an unnecessary delay or needless 
 
                 increase in the cost of litigation.
 
            
 
                 It is further concluded:
 
            
 
                 Regarding claimant's August 23, 1987 injury:
 
            
 
                 Claimant incurred an injury which arose out of and in 
 
            the course of his employment that caused him to incur a 14 
 
            percent permanent impairment to his left foot.
 
            
 
                 Claimant's permanent partial disability benefits shall 
 
            commence, as stipulated by the parties, on August 18, 1988, 
 
            at the rate of $211.77 per week for a period of 21 weeks 
 
            (14% of 150).
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 Claimant incurred 29.714 weeks of healing period which 
 
            has already been paid by defendants.
 
            
 
                 Defendants are to pay all of claimant's medical bills 
 
            incurred as a result of the August 23, 1987 injury.  It 
 
            appears that all medical has been paid or at least the bills 
 
            that have been submitted.
 
            
 
                 Claimant is not entitled to 86.13 penalty benefits.
 
            
 
                 Claimant did not incur any back or additional 
 
            compensable injuries as a result of his August 23, 1987 
 
            injury.
 
            
 
                 Regarding claimant's March 6, 1989 injury:
 
            
 
                 Claimant incurred a low back injury which arose out of 
 
            and in the course of his employment which caused claimant to 
 
            incur a 10 percent permanent partial impairment to his body 
 
            as a whole.
 
            
 
                 Claimant incurred no other compensable injuries as a 
 
            result of his March 6, 1989 work injury.
 
            
 
                 Claimant incurred no compensable healing period as a 
 
            result of his March 6, 1989 work injury.
 
            
 
                 Defendants are to pay all of claimant's medical bills 
 
            incurred as a result of his March 6, 1989 work injury, 
 
            except the $120 bill of McCrary-Rost Clinic for claimant's 
 
            evaluation and examination by Dr. Archer.
 
            
 
                 Claimant is to be held harmless as to any medical bills 
 
            incurred as a result of both of claimant's injuries and that 
 
            defendants shall pay said bills and hold claimant harmless 
 
            from any liability.  Therefore, defendants are entitled to 
 
            take any discount or credit as long as claimant is not held 
 
            liable for any balance.
 
            
 
                 Claimant is not entitled to 86.13 penalty benefits.
 
            
 
                 Defendants are obligated to pay claimant 50 weeks of 
 
            permanent partial disability benefits at the rate of $225.45 
 
            per week commencing May 4, 1991, the date after Dr. Archer's 
 
            permanent impairment rating to claimant's body as a whole.
 
            
 
                 Regarding both cases:
 
            
 
                 Rule 80 sanctions shall not be issued against claimant.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Regarding the August 23, 1987 injury (File No. 863619):
 
            
 
                 That defendants shall pay claimant twenty-one (21) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred eleven and 17/100 dollars ($211.17), 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            commencing August 18, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have not paid 
 
            any permanent partial disability benefits.  They shall be 
 
            given credit for the stipulated healing period benefits.
 
            
 
                 That defendants shall pay any remaining medical bills 
 
            that resulted from this injury for which claimant is 
 
            obligated.
 
            
 
                 Regarding the March 6, 1989 injury (File No. 911028):
 
            
 
                 That defendants shall pay claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred twenty-five and 45/100 dollars ($225.45), commencing 
 
            May 4, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  There have been no 
 
            payments of permanent partial, healing period or temporary 
 
            total disability benefits paid on this injury prior to this 
 
            date.
 
            
 
                 That defendants shall pay any remaining medical bills 
 
            that resulted from this injury for which claimant is 
 
            obligated, except for the $120 bill of Dr. Archer.
 
            
 
                 Regarding both cases:
 
            
 
                 That defendants shall hold claimant harmless in light 
 
            of this decision on these bills.  If defendants can obtain a 
 
            discount, that is up to defendants as long as this does not 
 
            affect claimant or result in any claim against the claimant.   
 
            As the record is not clear on this, the undersigned finds 
 
            that defendants shall not be given credit for the $2,257.41 
 
            except as heretofore provided.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            Mr Peter J Leehey
 
            Attorney at Law
 
            801 Carver Bldg
 
            P O Box 1680
 
            Fort Dodge IA 50501
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           5-1100; 5-1108;
 
                           5-4000; 5-1700
 
                           Filed September 9, 1991
 
                           Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENE K. PETERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 911028
 
                                          :               863619
 
            IOWA DEPT. OF PUBLIC DEFENSE, :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108
 
            Found claimant incurred an injury which arose out of and in 
 
            the course of his employment on August 23, 1987 which caused 
 
            claimant to incur a 14 percent permanent partial impairment 
 
            to his left foot.
 
            
 
            5-4000
 
            
 
                 Found claimant was not entitled to 86.13 penalty 
 
            benefits.
 
            
 
            5-1100; 5-1108
 
            
 
                 Found claimant did not additionally incur a back injury 
 
            on August 23, 1987.
 
            
 
            5-1100; 5-1108
 
            
 
                 Found claimant incurred a low back injury on March 6, 
 
            1989, which arose out of and in the course of claimant's 
 
            employment and caused a 10 percent permanent partial 
 
            impairment to his body as a whole resulting in a 10 percent 
 
            permanent partial disability.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            5-4000
 
            
 
                 Found claimant was not entitled to 86.13 penalty 
 
            benefits to this injury.
 
            
 
            5-1700
 
            
 
                 As to credit for medical bills, defendants were ordered 
 
            to hold claimant harmless from any liability on the medical 
 
            bills.  Defendants were allowed to obtain a discount from 
 
            the medical provider as long as this did not cause claimant 
 
            to pay any balance of the medical bills.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENE K. PETERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File No. 911028
 
                                          :               863619
 
            IOWA DEPT. OF PUBLIC DEFENSE, :
 
                                          :          N U N C
 
                 Employer,                :
 
                                          :           P R 0
 
            and                           :
 
                                          :          T U N C
 
            STATE OF IOWA,                :
 
                                          :         O R D E R
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            On September 9, 1991, the undersigned filed a decision in 
 
            which the rate of $211.77 stipulated by the parties as to 
 
            the August 23, 1988 alleged injury was incorrectly set out 
 
            in the Order as $211.17 instead of $211.77.
 
            The parties stipulated a $225.45 rate for the alleged March 
 
            6, 1989 injury which was also set out in the order.  There 
 
            is no such rate in the compensation guide book.  The closest 
 
            rate is $225.50 for a married person with four exemptions.
 
            IT IS THEREFORE ORDERED that the rate of two hundred eleven 
 
            and 77/100 dollars ($211.77) shall be inserted in the Order 
 
            for the August 23, 1988 injury in lieu of two hundred eleven 
 
            and 17/100 dollars ($211.17), and two hundred twenty-five 
 
            and 50/100 dollars ($225.50) as to the March 6, 1989 injury 
 
            in lieu of two hundred twenty-five and 45/100 dollars 
 
            ($225.45), as if they were originally set out correctly 
 
            therein.  Said decision stands in all other aspects as 
 
            originally written.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr Peter J Leehey
 
            Attorney at Law
 
            801 Carvedr Bldg
 
            P O Box 1680
 
            Fort Dodge IA 50501
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHERYL L. FOULKS,             :
 
                                          :
 
                 Claimant,                :         File No. 863798
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
            DAVENPORT WORKS,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Cheryl 
 
            L. Foulks against her self-insured employer, Aluminum 
 
            Company of America, Davenport Works, based upon an injury 
 
            that occurred on September 15, 1987.  Claimant seeks 
 
            compensation for permanent partial disability.
 
            
 
                 The case was heard and fully submitted at Tipton, Iowa 
 
            on November 27, 1990.  The record in the proceeding consists 
 
            of joint exhibit 1 and testimony from Cheryl L. Foulks, 
 
            Thomas Green Jr., and Everette Shadle.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Cheryl L. Foulks is a 36-year-old woman who was injured 
 
            on September 15, 1987 in an industrial accident which 
 
            produced fractures of the right and left superior and 
 
            inferior pubic rami of her pelvis (exhibit 1, page 30).  
 
            Cheryl's primary treating orthopaedic surgeon was Dennis L. 
 
            Miller, M.D.  She was treated conservatively without a cast 
 
            or surgery.  Cheryl was released to return to light work 
 
            effective November 9, 1987 (exhibit 1, page 16).  She 
 
            returned to her regular job of scale clerk, the job she held 
 
            prior to and at the time the injury occurred.  After the 
 
            passage of a considerable amount of time, all the activity 
 
            restrictions which had been originally imposed were removed.  
 
            Cheryl resumed full normal duty and normal activity.
 
            
 
                 Cheryl complains of stiffness and aching when she gets 
 
            up in the mornings.  She has occasional sharp pain in her 
 
            pelvis.  She finds it difficult to wear high heel shoes and 
 
            stated that walking sometimes causes pain.  She described a 
 
            spot on her right hip which is sometimes tender and 
 
            sometimes numb.  Cheryl has no problem performing any of the 
 
            activities required for her job.  She does experience pain 
 
            if she climbs stairs a lot or when she gets up from a 
 
            stooping position or from extended sitting.  She finds it 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            uncomfortable when her five-year-old son climbs onto her 
 
            hip.
 
            
 
                 Dr. Miller feels that claimant's fractures have healed 
 
            solidly and that she has recovered very nicely from the 
 
            injury (exhibit 1, pages 43 and 44).
 
            
 
                 Claimant was evaluated by Richard D. Retz, M.D.  Dr. 
 
            Retz found that she has some persistent subjective 
 
            complaints which do not interfere with her performance of 
 
            her current job, but which might interfere with some other 
 
            types of work.  He felt that outdoor work would not be 
 
            appropriate for her, nor would work which involved 
 
            repetitive climbing of stairs (exhibit 1, pages 46-48).
 
            
 
                 Testimony from Cheryl and from Everett Shadle clearly 
 
            demonstrates that she is performing her regular job of scale 
 
            clerk to the satisfaction of her employer and without any 
 
            problem.  She has received all normal pay raises throughout 
 
            the plant.  The injury has not caused any loss of earnings, 
 
            raises or otherwise adversely affected her employment 
 
            situation in any way.
 
            
 
                 Claimant appeared to be a fully credible witness.  Her 
 
            description of her symptoms and complaints is accepted as 
 
            being correct.  No physician has, however, assigned an 
 
            impairment rating for the fractures.  To the contrary, all 
 
            evidence indicates that the fractures have healed quite 
 
            well.  The closest thing to any indication of an impairment 
 
            rating is found at page 47 where Dr. Retz states, "Review of 
 
            the progress notes from Doctor Miller surely would indicate 
 
            that this individual had what he thought to be a very 
 
            satisfactory recovery with only mild medical impairment 
 
            resulting from her injury."  Even if it were to be found 
 
            that Cheryl has some degree of permanent physical impairment 
 
            as a result of the injury, the record in this case fails to 
 
            demonstrate that any such impairment has had any impact upon 
 
            either her actual earnings or her earning capacity.  At 
 
            most, it shows a possibility, rather than a probability, 
 
            that her symptoms could be a problem in some types of work.  
 
            The work history which claimant described at hearing and her 
 
            current employment do not provide the type of employment 
 
            situations which Dr. Retz indicated might be a problem for 
 
            her.
 
            
 
                 It is found that the injury Cheryl L. Foulks sustained 
 
            on September 15, 1987 did not, in any manner, permanently 
 
            reduce her earning capacity.  The injury did not produce any 
 
            permanent disability.
 
            
 
                                conclusions of law
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 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."
 
            
 
                 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.  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 County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 It is concluded that the claimant has failed to prove, 
 
            by a preponderance of the evidence, that she has sustained 
 
            any permanent disability as a result of the September 15, 
 
            1987 injury.  She is not entitled to recover any 
 
            compensation for permanent partial disability under section 
 
            85.34(2) of The Code.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Mr. Don D. Thuline
 
            Attorney at Law
 
            1718 8th Avenue
 
            P.O. Box 399
 
            Moline, Illinois  61265
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport, Iowa  52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.40
 
                           Filed December 17, 1990
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHERYL L. FOULKS,   :
 
                      :
 
                 Claimant, :         File No. 863798
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            ALUMINUM COMPANY OF AMERICA,  :         D E C I S I O N
 
            DAVENPORT WORKS,    :
 
                      :
 
                 Employer, :
 
                 Self-Insured,  :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1402.40
 
            Claimant, who suffered bilateral fractures of her pelvis, 
 
            failed to prove that she suffered any permanent impairment 
 
            or any permanent reduction in her earning capacity as a 
 
            result of the injuries.  She had no medically- directed 
 
            activity restrictions.