before the iowa industrial commissioner
 
         ____________________________________________________________
 
		                   :
 
         DARYL R. SNOW,		   :
 
		                   :
 
              Claimant,		   :
 
		                   :
 
         		vs.        :
 
 		                   :      File No. 878916
 
         MARK THOMPSON d/b/a 	   :
 
         THOMPSON FURNITURE,       :
 
		                   :        A P P E A L
 
              Employer, 	   :
 
		                   :      D E C I S I O N
 
		         and       :
 
                		   :
 
         CITIZENS INSURANCE, 	   :
 
                   		   :
 
              Insurance Carrier,   :
 
              Defendants.          :
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         March 8, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Ste 16
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed October 29, 1991
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DARYL R. SNOW,	      :
 
 		                      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
                		      :      File No. 878916
 
            MARK THOMPSON d/b/a       :
 
            THOMPSON FURNITURE,       :
 
		                      :        A P P E A L
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
            		and   	      :
 
		                      :
 
            CITIZENS INSURANCE,       :
 
                		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 8, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARYL R. SNOW,
 
         
 
              Claimant,                                File No. 878916
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         MARK THOMPSON d/b/a                           D E C I S I O N
 
         THOMPSON FURNITURE,
 
         
 
              Employer,                                   F I L E D
 
         
 
         and                                             MAR 08 1990
 
         
 
         CITIZENS INSURANCE,                         INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Daryl R. Snow 
 
         against Mark Thompson, d/b/a Thompson Furniture, his former 
 
         employer, and Citizens Insurance, the employer's insurance 
 
         carrier.  The case was heard and fully submitted at Mason City, 
 
         Iowa on August 1, 1989.  The record in the proceeding consists of 
 
         testimony from Daryl R. Snow, Jayne Carlson, David Niles and Mark 
 
         Thompson.  The record contains claimant's exhibits 1 through 10 
 
         and defendants' exhibits 3, 4 and 5.
 
         
 
                                      ISSUES
 
         
 
              Claimant alleges that he sustained an injury which arose out 
 
         of and in the course of his employment on May 19, 1988.  He seeks 
 
         compensation for healing period, permanent partial disability and 
 
         payment of medical expenses.  The issues to be determined are 
 
         whether claimant's injury arose out of and in the course of 
 
         employment and, if so, determination of his entitlement to 
 
         healing period, permanent partial disability and 
 
         medical.expenses. The rate of compensation was stipulated to be 
 
         $201.13 per week.  It was stipulated that, with regard to the 
 
         medical benefits under Iowa Code section 85.27 as shown in 
 
         claimant's itemized list, the providers of the services would 
 
         testify that the services provided were reasonable and that the 
 
         charges for those services were likewise reasonable.  The only 
 
         issue concerned with the listed expenses was that of liability.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              All the evidence referred to in the Introduction, as well as 
 
         the demeanor of those who testified at hearing, was considered 
 
         when deciding this case.  The lack of a reference to any 
 
         particular part of the record does not indicate that it was 
 
         overlooked.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Daryl R. Snow is a 24-year-old man who is a 1983 high school 
 
         graduate.  He completed one semester of community college where 
 
         he studied business.
 
         
 
              After graduation from high school, claimant held a position 
 
         for approximately two years which he described as consisting 
 
         primarily of labor.  He next held a sales job for approximately 
 
         two years and then commenced employment with Thompson Furniture 
 
         in January 1987.  Claimant stated that his job was to sell 
 
         furniture, but that he occasionally helped load, unload or 
 
         deliver the furniture.  Snow's last day of work at Thompson 
 
         Furniture was May 19, 1988.
 
         
 
              On May 19, 1988, Daryl Snow was playing softball on a team 
 
         sponsored by Mark Thompson.  Claimant dove to catch a ball and in 
 
         doing so separated his shoulder.  Claimant was taken to the local 
 
         hospital where the records show he was admitted at 8:22 p.m. 
 
         (claimant's exhibit 1).  The diagnosis was right second degree 
 
         acromioclavicular separation of the shoulder.  Claimant was 
 
         treated by Sterling L. Laaveg, M.D.  Initial treatment consisted 
 
         of an acromioclavicular harness (claimant's exhibit 2).  On May 
 
         19, 1988, Dr. Laaveg indicated that claimant should not work 
 
         until May 23 and that he should then avoid work using his right 
 
         arm until further notice (claimant's exhibit 4, page 3).  On May 
 
         24, 1988, Dr. Laaveg refilled claimant's Tylenol III prescription 
 
         and in his notes indicated "I don't think he should be working." 
 
         (Claimant's exhibit 4, page 1)  On that same date, Dr. Laaveg 
 
         issued a release which stated that claimant would be unable to 
 
         return to work until further notice (claimant's exhibit 4, page 
 
         3).  When Dr. Laaveg next saw claimant on June 20, 1988, his 
 
         notes indicate that claimant could discontinue wearing the 
 
         acromioclavicular harness, that he should work on range of motion 
 
         exercises, that he was still unable to do any major lifting and, 
 
         therefore, could not return to his furniture sales job.  He also 
 
         indicated, however, that claimant could return if he did not lift 
 
         over 10 pounds (claimant's exhibit 4, page 1).  When seen on July 
 
         12, 1988, Dr. Laaveg authorized claimant to resume full 
 
         activities (claimant's exhibit 4, page 1).
 
         
 
              Claimant was subsequently seen by Dr. Laaveg on September 1, 
 
         1988, October 11, 1988 and December 15, 1988 at which time 
 
         claimant made complaints of continuing discomfort.  Dr. Laaveg's 
 
         records do not contain any indication of whether or not claimant 
 
         had discussed performing work in the nature of answering 
 
         telephones (claimant's exhibit 5).  The evidence does not contain 
 
         any expression from Dr. Laaveg regarding whether claimant would 
 
         have been released to work answering the phone on May 24, 1988.
 
         
 
              On December 23, 1988, Dr. Laaveg issued a report in which he 
 
         stated that claimant has a clicking at the acromioclavicular 
 
         joint and a step-off at the distal end of the clavicle of 
 
         approximately one centimeter and some abnormal motion at the 
 
         acromioclavicular joint.  He rated claimant as having a five 
 
         percent impairment of the upper extremity which is equivalent to 
 
         a three percent impairment of the whole person.  Dr. Laaveg 
 
         related that claimant may have significant pain and discomfort 
 
         with his right shoulder and that a distal clavicle resection 
 
         surgical procedure might be required in the future (claimant's 
 
         exhibit 6).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At hearing claimant testified that his shoulder is still 
 
         separated.  He stated that he has not restricted his non-athletic 
 
         activities, except heavy lifting.  Claimant stated that he still 
 
         plays softball, but has a limited range of motion of his right 
 
         arm.  He stated that he plays catcher where he does not have to 
 
         throw people out or dive for catches.  Claimant stated that he 
 
         has pain daily.  He has no restrictions from his doctor, but 
 
         stated that if something hurts, he quits doing it.
 
         
 
              Snow testified that his shoulder was still bothering him 
 
         when he was released by Dr. Laaveg to resume work in June of 
 
         1988.  He stated that he drew unemployment for a time and then 
 
         eventually obtained work for a business called "Pet Parade" where 
 
         he was paid $4.50 per hour.  Commencing in June 1989, he worked 
 
         for Miller Tree Service for approximately three and one-half 
 
         months.  Claimant stated that he was not able to fully do the 
 
         work due to the condition of his shoulder.  He stated that he was 
 
         limited in his ability to lift and operate a chain saw.
 
         
 
              Claimant has now obtained employment at Primedica, a 
 
         business which sells home care medical products.  Claimant stated 
 
         that he had been paid $8.20 per hour and was in the process of 
 
         being promoted to a position which would pay approximately 
 
         $20,000 annually.  Claimant testified that when employed at 
 
         Thompson Furniture, he was paid a base salary of $1,000 per month 
 
         plus commissions.  Claimant's exhibit 9 shows that during 1987 he 
 
         earned at total of $13,932 from Thompson Furniture.
 
         
 
              Snow testified that he considers himself to be somewhat 
 
         athletic and has been involved in playing ball since he was 
 
         approximately nine years of age.  He lettered in baseball in high 
 
         school and played softball extensively after high school.  
 
         Claimant stated that he played softball for his church for two 
 
         and one-half years.  At the time of hearing he was playing for 
 
         the Forest Lake A & W.
 
         
 
              Claimant testified that, when he was hired by Mark Thompson, 
 
         there was no discussion of playing softball and that playing ball 
 
         was not a condition of his employment.  Claimant stated that in 
 
         the spring of 1987, he had started practicing with his church 
 
         team.  Claimant stated that Thompson at approximately that time 
 
         mentioned that he was sponsoring a team and encouraged claimant 
 
         to join it.  Claimant stated that Thompson told him he would be 
 
         allowed time off from work to play with the team.  Claimant 
 
         stated that none of the other employees at Thompson Furniture 
 
         played on the team, other than for Mark Thompson, the owner.
 
         
 
              Claimant testified that, at Thompson, he was a salesman and 
 
         that his work hours were from 9:00 a.m. to 9:00 p.m. on Mondays 
 
         and Wednesdays, from 9:00 a.m. to 7:00 p.m. on Tuesdays and 
 
         Thursdays, from 9:00 a.m. to 5:00 p.m. on Saturdays and from 1:00 
 
         p.m. to 5:00 p.m. on Sundays.  Claimant stated that he had one 
 
         day off per week and one weekend off each month.  Claimant stated 
 
         that he was under the impression that he would not be allowed 
 
         time off to play softball for a team other than Thompson's.  
 
         Claimant stated that he likes to play softball and has done it 
 
         ever since high school.  Claimant felt that in 1987 and 1988 he 
 
         would be unable to play due to work hour conflicts if it were not 
 
         on Thompson's team.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant stated that Thompson had sponsored a softball team 
 
         for several seasons and that the manager, Dave Niles, stopped at 
 
         the store and discussed softball, as well as other things, with 
 
         Thompson.  Claimant stated that Thompson enjoyed playing the game 
 
         and played on the team.
 
         
 
              Claimant testified that Thompson paid for team shirts which 
 
         carried the name "Thompson Furniture."  He stated that Thompson 
 
         also paid a sponsor fee and paid for the balls used.  Claimant 
 
         stated that he was given time off work without any reduction of 
 
         his pay to play the Monday and Thursday evening games.  Claimant 
 
         related that games could start at 6:30, 7:30, 8:30 or 9:30.
 
         
 
              Claimant testified that after the 1987 season, he was asked 
 
         by Mark Thompson to assist in soliciting players for the 1988 
 
         team and also to collect fees for the team.  Claimant stated that 
 
         he did so from the furniture store during his work hours with 
 
         Thompson's approval.
 
         
 
              ClaimAnt testified that Thompson enjoyed sports and that 
 
         sports, in particular softball, was a frequent topic of 
 
         discussion at the furniture store.  Claimant stated that on 
 
         occasion he and Mark Thompson would go outside and play catch in 
 
         the parking lot by the store during business hours.
 
         
 
              Claimant testified that he had made some sales from contacts 
 
         made while talking to people during softball games.  He stated 
 
         that Thompson Furniture received some advertising benefit from 
 
         the team and that it also promoted the work relationship between 
 
         Thompson and claimant.  Claimant stated that he felt it was his 
 
         duty as an employee to play on Thompson's team.  Claimant 
 
         testified that Mark Thompson never told him he would be penalized 
 
         in any manner for not playing softball, but it was implied, 
 
         however.
 
         
 
              Claimant stated that the league was an industrial league 
 
         with standardized rules.  He stated that the results were 
 
         published in the local newspaper.
 
         
 
              Claimant's injury of May 19, 1988 occurred during a practice 
 
         game.  He stated that he was not wearing the team uniform at that 
 
         time.
 
         
 
              Following the injury, claimant presented Thompson with slips 
 
         from his physician.  The slips of May 19, 1988 and May 23, 1988 
 
         both indicate that claimant was to be off work.  Thompson stated 
 
         that on May 24, 1988, he had told claimant he wanted him to be at 
 
         work, even if it was only to answer the phone.  Claimant 
 
         testified that he conveyed that request to his physician, but 
 
         that the physician wanted him to be completely off work.  
 
         Claimant stated that he is right-handed, that his right arm was 
 
         in a sling and that he would not even have been able to write 
 
         notes or messages if he had answered the telephone since he 
 
         cannot write with his left hand.  Claimant stated that in May of 
 
         1988 after the injury his roommate drove him around as he was 
 
         unable to drive.  Claimant did go to a local bar in Clear Lake, 
 
         Iowa on several occasions and danced.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In late May 1988, claimant had conversations with Jayne 
 
         Carlson, Thompson's bookkeeper which led her to report to 
 
         Thompson that claimant had quit.  Claimant denied telling her, or 
 
         anyone, that he had quit and later specifically advised Carlson 
 
         that he had not quit.  After being released to resume light work 
 
         on June 22, 1988, claimant went to the store, started work and 
 
         was then directed by Mark Thompson to leave the premises because 
 
         he had quit.
 
         
 
              Claimant applied for and received unemployment benefits, but 
 
         then the initial award was reversed.  The final agency ruling 
 
         from Job Service and the Employment Appeals Board was that 
 
         claimant had voluntarily quit.  Claimant has continued to dispute 
 
         the accuracy of that determination.
 
         
 
              David Niles, Mark Thompson's best friend, testified that the 
 
         team shirts worn in 1987 had no name on them, but that the shirts 
 
         used in 1985 and 1986 had the Thompson Furniture name.  Niles 
 
         could not dispute claimant's testimony of soliciting players or 
 
         collecting fees from players.
 
         
 
              Mark Thompson, owner of Thompson Furniture, stated that in 
 
         1987 and 1988, he had five employees consisting of two sales 
 
         people, two delivery people and a part-time bookkeeper.
 
         
 
              Thompson stated that he has played softball since 1984 and 
 
         sponsored a team since 1985.  Thompson stated that he considers 
 
         the team to be a morale booster by giving sales employees an 
 
         opportunity to get out of the store.  Thompson stated that he 
 
         paid a sponsor fee and provided equipment for the team to 
 
         participate in an industrial league which was arranged by the 
 
         Mason City Parks Department.  Thompson stated that the results 
 
         are published in the local newspaper.  Thompson was uncertain 
 
         with regard to whether or not the shirts which team members wore 
 
         had the Thompson Furniture name on them.  He stated that to the 
 
         best of his recollection some had the name and others did not.
 
         
 
              Thompson agreed that on several occasions, when things at 
 
         the business were slow, he and claimant would go outside and play 
 
         catch with a ball or frisbee to relieve the monotony and get some 
 
         fresh air.
 
         
 
              Thompson testified that he never told claimant that it was 
 
         required for him to play on the team and that other employees had 
 
         declined to join the team without any detriment to their 
 
         employment.  Thompson.stated that when he hired claimant he was 
 
         looking for a good salesman and did not know that claimant was a 
 
         ballplayer.  Thompson agreed that in the spring of 1987 he 
 
         discussed the team with claimant and that claimant responded 
 
         positively.  Thompson stated that he would not have given 
 
         claimant time off work to play on another team, but that playing 
 
         on the Thompson Furniture team was strictly optional.
 
         
 
              Thompson testified that he receives self-satisfaction from 
 
         sponsoring and playing on the team.  He stated that it provides 
 
         exercise for the team members, entertainment for the community 
 
         and fees to help with the upkeep of the park.  He felt that 
 
         playing on the team was a positive morale factor for employees.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Thompson testified that on May 24, 1988, claimant brought 
 
         the second release from work slip to the store and that he 
 
         informed claimant he wanted him to work, performing whatever he 
 
         could do, even if it were only to be answering the telephone.  
 
         Thompson stated that claimant refused.  Thompson stated that 
 
         claimant had told him that the doctor was under the impression 
 
         that claimant's work required heavy lifting.
 
         
 
              Thompson decided to terminate claimant's employment after 
 
         claimant turned in his keys on or about May 28, 1988.  When 
 
         claimant came back to the store on approximately June 20, 1988, 
 
         Thompson refused to allow him to work.  A replacement had already 
 
         been hired.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on May 19, 1988 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548. (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958)'.
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he.is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The primary issue in this case is whether Daryl Snow was 
 
         acting in the course of his employment when he injured his 
 
         shoulder.  There was no dispute with regard to the time, place 
 
         and circumstances of the injury.  The medical evidence from Dr. 
 
         Laaveg is uncontradicted.  When considering all the evidence in 
 
         the record, it is determined by the undersigned that Daryl Snow 
 
         enjoys playing softball and wanted to play softball during the 
 
         1987 and 1988 seasons.  He had started practicing with his church 
 
         team in 1987 before being asked to join Thompson's team.  It is 
 
         further determined that claimant decided to join Thompson's team 
 
         because it allowed him a way to play softball which avoided any 
 
         employment conflicts since Thompson allowed him to take time off 
 
         from work, without any loss of pay, in order to play on the team.
 
         
 
              It is further found that Mark Thompson sponsored a team 
 
         primarily because he personally enjoyed playing softball.  It is 
 
         found that there was some advertising benefit from the jerseys 
 
         which bore the Thompson Furniture name.  It is noted that 
 
         Thompson Furniture is a retail furniture store at Mason City, 
 
         Iowa which sells its product to the general public.  Spectators 
 
         and other participants at the softball games would in fact be 
 
         potential customers of the store.  This is not a situation 
 
         similar to the case of Cooper v. Rockwell-Goss, II Iowa 
 
         Industrial Commissioner Report 91 (1982) where the employer's 
 
         product was very expensive, specialized equipment and it was 
 
         quite unlikely that any potential purchasers would ever see the 
 
         team.  Thompson knew of no sales which had resulted from the team 
 
         activities, but there was no explanation of whether a survey to 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         determine such had been conducted.  Claimant stated that he had 
 
         discussed furniture sales during some games and had made some 
 
         sales as a result of playing on the team.  Claimant felt that it 
 
         was advantageous for him to be on the team from a business 
 
         standpoint.  The results of the team were published in the local 
 
         newspaper which provided additional exposure for the employer.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              During the spring of 1988, in preparation for the 1988 
 
         season, Thompson had provided claimant with names of potential 
 
         players.  Claimant solicited players from the business premises 
 
         during his work hours and also collected fees from players at the 
 
         business premises during work hours, all with Thompson's consent. 
 
         It is clear that Thompson paid a sponsor fee and provided some of 
 
         the equipment for the team.  It is also clear that Thompson would 
 
         not have allowed claimant to take off work in order to play on 
 
         some other softball team.
 
         
 
              The matter of employer-sponsored recreational activities is 
 
         discussed extensively in 1A Larson Workmen's Compensation Law, 
 
         section 22.00 et seq.  The general indication is that there are 
 
         four categories which are considered and that a balancing test is 
 
         applied.  The general statement is that recreational activities 
 
         are within the course of employment when the employer, by 
 
         expressly or implicitly requiring participation, or by making the 
 
         activity part of the services of an employee, brings the activity 
 
         within the orbit of the employment; or, when the employer 
 
         receives substantial direct benefit from the activity beyond the 
 
         intangible value of improvement of employee health and morale.
 
         
 
              In this case, Daryl R. Snow was paid by the employer for 
 
         playing softball, the same as he would have been paid if he had 
 
         remained at the furniture store, during those hours when the 
 
         softball activities conflicted with claimant's normal work hours. 
 
         Further, claimant performed other activities in the nature of 
 
         soliciting players and collecting fees which supported the team 
 
         effort.  The fact that claimant participated in the team 
 
         activities in a paid status is a strong indication that his team 
 
         activities placed him in the course of his employment.
 
         
 
              Thompson Furniture paid sponsor fees.  Mark Thompson 
 
         provided some of the equipment for the game.  The employer's 
 
         payment of fees and providing of equipment also supports 
 
         claimant's claim.
 
         
 
              A third factor in this case is that the team was initiated 
 
         and formed by Thompson, rather than having been a team which had 
 
         been formed by Thompson's employees.  Thompson actively promoted 
 
         the team by asking employees to play, particularly those who 
 
         appeared to be athletically adept, such as claimant.  In view of 
 
         the nature of the business, its small size, and the fact that 
 
         this, like many small businesses, is somewhat of an alter ego of 
 
         the individual owner, it is understandable that claimant might 
 
         have felt some compulsion to participate on the team.  It is also 
 
         determined, however, that participation on the team was not a 
 
         term or condition of claimant's employment.  It was, however, the 
 
         only way in which he could fulfill his own desire to play 
 
         softball without having work conflicts.
 
         
 
              The employer benefit analysis is a fourth factor considered 
 
         when determining "in the course of employment" issues.  Whenever 
 
         any business has its name or product presented to the public in a 
 
         favorable setting, there is generally considered to be some 
 
         positive advertising benefit.  Sophisticated advertising efforts 
 
         target certain groups and direct their advertising efforts toward 
 
         those groups.  Any advertising benefit to Thompson Furniture from 
 
         sponsoring the softball team would be expected to have been 
 
         relatively small.  The economic expenditure for sponsoring a team 
 
         would likewise be expected to be relatively small.  Those who 
 
         attend summer league softball games are generally players, their 
 
         friends and families.  There is generally not much in the way of 
 
         spectator interest.  Those who read the league results published 
 
         in local newspapers are generally the players, families and 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         friends who have interest in the games.  There are, however, 
 
         spectators at some of the games from time to time who have no 
 
         direct connection with the teams or players.  The players on the 
 
         various teams are generally residents of the area where the games 
 
         are played.  As residents of the area, they are all potential 
 
         customers of Thompson Furniture.  There clearly is some, albeit 
 
         limited, advertising benefit to Thompson Furniture from its 
 
         sponsorship of a softball team.  From the general standpoint of 
 
         employee morale, it cannot be found that sponsoring the team had 
 
         any particular benefit since Mark Thompson and claimant were the 
 
         only ones from the business who played on the team.  Their 
 
         relationship does not appear to have been particularly good.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The predominant factor which caused Thompson to sponsor the 
 
         team was that Thompson liked softball and liked to play softball. 
 
         Since the business was to some extent an alter ego of Mark 
 
         Thompson, he was able to use the business as a means of promoting 
 
         his own personal interest in playing softball.  Mark Thompson and 
 
         Thompson Furniture sponsored a softball team to satisfy Mark 
 
         Thompson's personal interests.  The only business advantages that 
 
         resulted from sponsoring the team were merely incidental.  Daryl 
 
         Snow's participation on the team is likewise determined to have 
 
         been primarily a result of his personal desire to play softball. 
 
         It was not mandatory for him to play on the team as a condition 
 
         of continuing his employment.  Snow wanted to play softball and 
 
         Thompson Furniture provided him with a means of doing so.
 
         
 
              Even though participation on the team was not required, the 
 
         participation did become, by acquiescence or implied agreement of 
 
         Daryl Snow and Mark Thompson, a part of the services which 
 
         claimant provided for Thompson and Thompson Furniture.  Claimant 
 
         played softball on company time and was paid for doing so.  The 
 
         fact that he would have played softball without payment under 
 
         other circumstances does not prevent it from having been a part 
 
         of the services which he provided for his employer.  Whenever an 
 
         employee performs an activity with the employer's consent, for 
 
         which the employee is paid, that employee is acting within the 
 
         course of employment.  The fact that the employee may have 
 
         enjoyed the activity or would have performed it without being 
 
         paid does not prevent it from being within the course of 
 
         employment.  Daryl Snow had fixed days and hours of work which 
 
         were set by his employer.  He was not free to come and go as he 
 
         pleased.  The bulk of claimant's earnings resulted from his base 
 
         salary rather than from the commissions.  It is therefore 
 
         determined that Daryl Snow was acting in the course of his 
 
         employment when he was injured on May 19, 1988 while playing 
 
         softball.
 
         
 
              Claimant is therefore entitled to recover healing period 
 
         compensation commencing May 20, 1988 and running through June 21, 
 
         1988 as indicated by Dr. Laaveg's release.  There is no 
 
         indication in the record that Dr. Laaveg would have allowed 
 
         claimant to perform work such as answering the telephone when the 
 
         same was offered on May 24, 1988.  The undersigned is not 
 
         inclined to second guess the doctor.  The record contains no 
 
         explanation with regard to precisely why Dr. Laaveg took claimant 
 
         off work or with regard to what Dr. Laaveg understood claimant's 
 
         work duties to be. It is noted that a 10-pound restriction was 
 
         imposed when claimant was authorized to resume work on June 22, 
 
         1988.  Where the record does not show that Dr. Laaveg was given 
 
         an inaccurate description of claimant's work duties, his 
 
         professional opinion will be accepted.  Leffler v. Wilson & Co., 
 
         320 N.W.2d 634 (Iowa App. 1982).  Claimant's healing period 
 
         therefore runs from May 20, 1988 through June 21, 1988.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort.case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basis 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, 
 
         34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              The acromioclavicular joint is clearly not a part of the arm 
 
         and therefore the disability is to be evaluated industrially. 
 
         Claimant's chosen field of work seems to be sales.  All the 
 
         evidence in the record indicates that he is quite adept in that 
 
         field.  It is a field of work which presents many opportunities 
 
         with little physical exertion.  While many sales positions 
 
         require physical demonstration of products, most would not be any 
 
         problem for claimant at the present time.  Claimant's current 
 
         earnings exceed what he had earned with Thompson Furniture.  It 
 
         does not appear that his shoulder problem has been any impediment 
 
         to sales positions.  It was an impediment for him when he worked 
 
         for Miller Tree Service.  The loss of ability to perform some 
 
         types of physical labor is an impairment of earning capacity, 
 
         although it is not a great impairment for this individual since 
 
         his career appears to be in the sales field.  When all pertinent 
 
         factors of industrial disability are considered, it is determined 
 
         that Daryl Snow sustained a five percent permanent partial 
 
         disability as a result of his shoulder separation injury.
 
         
 
              Claimant's medical expenses incurred in treating the injury 
 
         and his travel expenses are listed in exhibits 7 and 10 
 
         respectively.  In view of the stipulations in the record and the 
 
         previous findings regarding liability, defendants are obligated 
 
         to pay the following expenses under the provisions of Iowa Code 
 
         section 85.27:
 
         
 
              St. Joseph Mercy Hospital               $   265.84
 
              Radiologist of Mason City, P.C.              32.00
 
              Surgical Associates (Dr. Laaveg)            216.00
 
              Daryl Snow (mileage)                        109.83
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Total                                      $623.67
 
          
 
                                 FINDINGS OF FACT
 
         
 
              1.  Daryl Snow injured his right shoulder on May 19, 1988 
 
         while playing softball on a team that was sponsored by his 
 
         employer.
 
         
 
              2.  The employer sponsored the team primarily for personal 
 
         reasons, although he did receive some incidental business 
 
         advantage due to exposure of the business name on player uniform 
 
         shirts and from team standings being published in the local 
 
         newspaper.
 
         
 
              3.  Daryl Snow participated on the employer-sponsored team 
 
         primarily because he desired to play softball and by playing on 
 
         the Thompson Furniture team he could do so without experiencing 
 
         any conflicts between his work schedule and the times at which 
 
         games and practices were conducted.
 
         
 
              4.  Claimant was paid by his employer for playing softball 
 
         whenever practices or games conflicted with claimant's scheduled 
 
         work hours.  The employer would not have authorized claimant to 
 
         be absent from work in order to participate on any team other 
 
         than the one which the employer sponsored.
 
         
 
              5.  Participation on the team was not mandatory or required.
 
         
 
              6.  Participation on the team became a part of claimant's 
 
         employment activities either by acquiescence or through an 
 
         implied agreement between claimant and Mark Thompson.
 
         
 
              7.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury from May 20, 1988 until June 22, 
 
         1988 when Dr. Laaveg authorized claimant to resume light work.
 
         
 
              8.  Daryl Snow has experienced a five percent reduction in 
 
         his earning capacity as a result of the permanent problems which 
 
         were caused by the May 19, 1988 injury to his right shoulder.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  The shoulder separation which Daryl Snow sustained while 
 
         playing softball on May 19, 1988 is an injury which arose out of 
 
         and in the course of his employment with Mark Thompson, d/b/a 
 
         Thompson Furniture.
 
         
 
              3.  Claimant is entitled to recover 4 5/7 weeks of 
 
         compensation for healing period.
 
         
 
              4.  Claimant is entitled to recover 25 weeks of compensation 
 
         for permanent partial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              5.  Claimant is entitled to recover medical expenses and 
 
         mileage in the total amount of $623.67.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay Daryl Snow four 
 
         and five-sevenths (4 5/7) weeks of compensation for healing 
 
         period at the stipulated rate of two hundred one and 13/100 
 
         dollars ($201.13) per week payable commencing May 20, 1988.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred one and 13/100 
 
         dollars ($201.13) per week payable commencing June 22, 1988.
 
         
 
              IT IS FURTHER ORDERED that all amounts are past due and 
 
         shall be paid to claimant in a lump sum together with interest 
 
         from the date each payment came due until the date of actual 
 
         payment pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the following 
 
         expenses under the provisions of Iowa Code section 85.27:
 
         
 
              St. Joseph Mercy Hospital        $  265.84
 
              Radiologist of Mason City, P.C.      32.00
 
              Surgical Associates (Dr. Laaveg)    216.00
 
              Daryl Snow (mileage)                109.83
 
              Total.                             $623.67
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33 
 
         including two and 00/100 dollars ($2.00) for the service of the 
 
         original notice and petition and thirty-five and 00/100 dollars 
 
         ($35.00) for the cost of a medical report from Dr. Laaveg.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
              
 
              Signed and filed this 8th day of March, 1990.
 
         
 
         
 
         
 
                                        
 
                                        
 
                                        
 
                                            MICHAEL G.TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         P.O. Box 679
 
         Mason City, Iowa  50401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1109, 5-1802, 5-1803
 
                                            Filed March 8, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DARYL R. SNOW,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 878916
 
         MARK THOMPSON d/b/a
 
         THOMPSON FURNITURE,                   A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         CITIZENS INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1109
 
         
 
              Injury sustained while playing on employer-sponsored 
 
         softball team held to be in the course of employment.  The team 
 
         was sponsored by an individual employer with five employees.  The 
 
         only participants from the business on the team were claimant and 
 
         the employer himself.  All other team members were nonemployees. 
 
         Claimant played in a paid status whenever game or practice times 
 
         conflicted with his scheduled work hours.  Claimant also 
 
         performed other activities during his work hours to promote the 
 
         team.  The employer was a retail furniture business and the 
 
         display of the company name on team shirts and in league standing 
 
         reports published in the local newspaper were held to have some 
 
         advertising value.
 
         
 
         5-1802, 5-1803
 
         
 
              Claimant awarded healing period and five percent permanent 
 
         partial disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         PATRICIA BROWN,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 878934
 
         WESTERN INTERNATIONAL, INC.,  :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              Defendants Western International (hereinafter Western) and 
 
         Liberty Mutual Insurance Company appeal and claimant 
 
         cross-appeals from an arbitration decision awarding 300 hundred 
 
         weeks of permanent partial disability benefits as a result of 
 
         claimant's February 2, 1988 work injury.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 6.  Defendants 
 
         filed brief on appeal.  Claimant did not file a brief on appeal.
 
         
 
                                      issue
 
         
 
              Defendants state the issue on appeal is:
 
         
 
              Whether the award of 300 weeks of permanent partial 
 
              disability benefits was excessive under the facts and 
 
              circumstances of this case?
 
         
 
                              review of the evidence
 
         
 
              The arbitration decision filed February 19, 1990, adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
                                  applicable law
 
         
 
              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 per
 
         centages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity 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).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which he is fitted.  Olson, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
         Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial disabil
 
         ity include the employee's medical condition prior to the injury, 
 
         immediately after the injury, and presently; the situs of the 
 
         injury, its severity and the length of healing period; the work 
 
         experience of the employee prior to the injury, after the injury 
 
         and potential for rehabilitation; the employee's qualifications 
 
         intellectually, emotionally and physically; earnings prior and 
 
         subsequent to the injury; age; education; motivation; functional 
 
         impairment as a result of the injury; and inability because of 
 
         the injury to engage in employment for which the employee is fit
 
         ted.  Loss of earnings caused by a job transfer for reasons 
 
         related to the injury is also relevant.  These are matters which 
 
         the finder of fact considers collectively in arriving at the 
 
         determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.   
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, l985).
 
         
 
              A worker is totally disabled if the only services the worker 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         can perform are so limited in quality, dependability, or quan
 
         tity, that a reasonable, stable market for them does not exist.  
 
         When a combination of industrial disability factors preclude a 
 
         worker from obtaining regular employment to earn a living, a 
 
         worker with only a partial functional disability has a total 
 
         industrial disability.  Guyton v. Irving Jensen Company, 373 
 
         N.W.2d 101 (Iowa 1985).
 
         
 
              The decision of the deputy industrial commissioner was a 
 
         proposed decision within the contemplation of Iowa Code section 
 
         17A.15(2).  Because it was appealed to the agency (the commis
 
         sioner) within the time provided by the rule, the commissioner 
 
         pursuant to section 17A.15(3), assumed full responsibility for 
 
         deciding anew all issues of fact and law.  Tussing v. George A. 
 
         Hormel & Co., 461 N.W.2d 450, 451-452 (Iowa 1990).
 
         
 
                                     analysis
 
         
 
              The parties stipulated to the fact that claimant sustained 
 
         an injury to her right shoulder which arose out of and in the 
 
         course of her employment with Western.  The only issue is the 
 
         extent of claimant's entitlement to permanent disability benefits 
 
         as a result of the February 5, 1988 work injury.  
 
         
 
              Claimant was born September 25, 1930 and was 57 years old at 
 
         the time of her injury.  Claimant failed to complete high school 
 
         but subsequently obtained a GED.  Claimant worked in the army for 
 
         two years as a surgical technician.  Claimant began working for 
 
         AMF, the predecessor of Western, in 1966.  Claimant operated a 
 
         punch press while working for Western.  This position involved 
 
         lifting in excess of fifty pounds frequently.  Claimant was off 
 
         work, recovering from her surgery, when the Western plant closed.  
 
         
 
              Following the plant closing, claimant took advantage of 
 
         educational opportunities offered by Western at Des Moines Area 
 
         Community College.  Claimant has taken courses in reading, writ
 
         ing, improved thinking skills and study skills.  Claimant has 
 
         also taken courses in introduction to data processing and key
 
         board work.  Prior to taking the courses, claimant took tests 
 
         which indicated that she performed below average in the areas of 
 
         language, reading, and numerical skills.  Tests have not been 
 
         performed following claimant's completion of the above mentioned 
 
         classes.  At the time of the hearing, claimant expressed an 
 
         interest in commercial art and has taken courses in this area.  
 
         Claimant has shown motivation to continue educational pursuits.  
 
         It is speculation, however, to predict the success of future 
 
         employment searches as a result of training.  Steward v. Crouse 
 
         Cartage Co., Appeal Decision filed February 20, 1987.
 
         
 
              Claimant had no ascertainable disability prior to her work 
 
         injury on February 5, 1988.  Robert F, Breedlove, M.D., treated 
 
         claimant for her work injury.  Dr. Breedlove opined that claimant 
 
         sustained a 17 percent permanent partial impairment of the right 
 
         upper extremity as a result of the work injury.  Dr. Breedlove 
 
         opined that the 17 percent impairment converts to 10 percent per
 
         manent partial impairment of the body as a whole and claimant has 
 
         an additional five percent permanent partial impairment to the 
 
         body as a whole as a result of pain.  Claimant is restricted from 
 
         performing overhead work utilizing her right upper extremity.  
 
         Claimant has a 10 pound weight restriction and she is not to 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         obtain any occupation which involves repetitive use of her right 
 
         upper extremity.  Claimant is prohibited from performing her for
 
         mer job which required repetitive movements and lifting in excess 
 
         of 50 pounds.  Claimant is limited to sedentary employment.
 
         
 
              Claimant failed to demonstrate an adequate job search.  
 
         Defendants retained a vocational consultant; however, claimant 
 
         refused to interview with potential employers paying in the range 
 
         of $5.00 to $6.00 an hour.  Claimant's failure to pursue employ
 
         ment opportunities reflects adversely upon claimant's motivation.  
 
         The vocational consultant identified five potential categories of 
 
         jobs which claimant was qualified for; however, the positions 
 
         identified according to the Dictionary of Occupational Titles are 
 
         classified as light duty which is beyond claimant's restrictions.
 
         
 
              Claimant is nearing the end of her employment career.  
 
         Claimant's loss of earnings as a result of her disability is not 
 
         as severe as it would be in the case of a younger individual who 
 
         has many years left in the employment market.  
 
         
 
              Based upon the above mentioned facts, it is determined that 
 
         claimant sustained 45 percent industrial disability as a result 
 
         of her work related injury on February 5, 1988.
 
         
 
                                 findings of fact
 
         
 
              1.  Claimant sustained an injury on February 5, 1988, to her 
 
         right shoulder which arose out of and in the course of her 
 
         employment with Western.
 
         
 
              2.  Claimant was born September 25, 1930 and was 57 years 
 
         old at the time of her injury and is nearing the end of her 
 
         employment career.
 
         
 
              3.  Claimant has her GED and has taken courses at the Des 
 
         Moines Area Community College following her work-related injury.
 
         
 
              4.  Claimant operated a punch press while working for 
 
         Western.  This position involved lifting in excess of 50 pounds 
 
         and repetitive movements. 
 
         
 
              5.  Claimant was off work, recovering from her surgery, when 
 
         the Western plant closed.
 
         
 
              6.  Dr. Breedlove opined that claimant sustained a 17 per
 
         cent permanent partial impairment of the right upper extremity as 
 
         a result of the work injury.  Dr. Breedlove opined that the 17 
 
         percent impairment converts to 10 percent permanent partial 
 
         impairment of the body as a whole and claimant has an additional 
 
         five percent permanent partial impairment to the body as a whole 
 
         as a result of pain.  
 
         
 
              7.  Claimant is restricted from performing overhead work 
 
         utilizing her right upper extremity.  Claimant has a 10 pound 
 
         weight restriction and she is not to obtain any occupation which 
 
         involves repetitive use of her right upper extremity.
 
         
 
              8.  Claimant's failure to pursue employment opportunities 
 
         reflects adversely upon claimant's motivation.  Claimant has 
 
         shown motivation to continue educational pursuits which reflects 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         favorably upon claimant.
 
         
 
                                conclusions of law
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         she sustained 45 percent industrial disability as a result of her 
 
         work-related injury on February 5, 1988.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                       order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay claimant two hundred twenty-five 
 
         (225) weeks of permanent partial disability benefits at the rate 
 
         of three hundred fifty-two and 30/100 dollars ($352.30) from 
 
         October 25, 1988.
 
         
 
              That defendants shall pay healing period benefits stipulated 
 
         to in the prehearing report.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against all benefits previously paid 
 
         as stipulated in the prehearing report.
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded pursuant to Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action including 
 
         the cost of transcription of the arbitration hearing.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to rule 343 IAC 3.1(2).
 
         
 
              Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand Avenue
 
         Des Moines  IA  50312
 
         
 
         Mr. Richard C. Book
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines  IA  50309
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         5-1803
 
         Filed November 22, 1991
 
         BYRON K. ORTON
 
         LPW
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         PATRICIA BROWN,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 878934
 
         WESTERN INTERNATIONAL, INC.,  :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         5-1803
 
         Nonprecedential case concerning the extent of claimant's 
 
         industrial disability.  Held that claimant proved by a 
 
         preponderance of the evidence that she sustained 45 percent 
 
         industrial disability as a result of her work-related right 
 
         shoulder injury on February 5, 1988.  
 
         Claimant was born September 25, 1930 and was 57 years old at the 
 
         time of her injury.  Claimant is nearing the end of her 
 
         employment career.  Claimant has her GED and has taken courses at 
 
         the Des Moines Area Community College following her work-related 
 
         injury.  Claimant operated a punch press while working for the 
 
         defendant-employer.  This position involved lifting in excess of 
 
         50 pounds and repetitive movements.  Claimant was off work, 
 
         recovering from her surgery, when the defendant-employer plant 
 
         closed.  Robert F. Breedlove, M.D., opined that claimant 
 
         sustained a 17 percent permanent partial impairment of the right 
 
         upper extremity as a result of the work injury.  Dr. Breedlove 
 
         opined that the 17 percent impairment converts to 10 percent 
 
         permanent partial impairment of the body as a whole and claimant 
 
         has an additional five percent permanent partial impairment to 
 
         the body as a whole as a result of pain.  Claimant is restricted 
 
         from performing overhead work utilizing her right upper 
 
         extremity.  Claimant has a 10 pound weight restriction and she is 
 
         not to obtain any occupation which involves repetitive use of her 
 
         right upper extremity.  Claimant's failure to pursue employment 
 
         opportunities reflects adversely upon claimant's motivation.  
 
         Claimant has shown motivation to continue educational pursuits 
 
         which reflects favorably upon claimant.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA BROWN,
 
         
 
              Claimant,                               File No. 878934
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         WESTERN INTERNATIONAL, INC.,                 D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 19 1990
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                            STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Patricia 
 
         Brown, claimant, against Western International, Inc., employer 
 
         (hereinafter referred to as Western), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on 
 
         February 5, 1988.  On July 19, 1989, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On February 5, 1988, claimant received an injury which 
 
         arose out of and in the course of her employment with Western.
 
         
 
              2.  The work injury was a cause of a period of temporary 
 
         total disability during recovery from the injury and permanent 
 
         disability.
 
         
 
              3.  Claimant is entitled to healing period benefits
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
                                                       
 
                                                                
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the disability.  
 
         From her demeanor while testifying, claimant will be found 
 
         credible.
 
         
 
               I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American; Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v.  Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant has shown by uncontroverted 
 
         evidence that she has suffered a 15 percent permanent partial 
 
         impairment to the right shoulder as a result of the work injury. 
 
         Dr. Breedlove was not being unreasonable by adding the five 
 
         percent for chronic pain.  However, the particular percentage of 
 
                                                       
 
                                                                
 
         impairment, be it 10 percent or 15 percent, is not significant in 
 
         this case.  What is more important in an industrial disability 
 
         case, when you are measuring a loss of earning capacity, is 
 
         claimant's work restrictions caused by the work injury.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34 (2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant argues for application of the so-called "odd-lot" 
 
         doctrine.  This doctrine is a procedure device designed to shift 
 
         the burden of proof with respect to employability to the employer 
 
         in certain factual situations.  Klein v. Furnas Elec. Co., 384 
 
         N.W.2d 370, 375 (Iowa 1986).  Under the odd-lot doctrine, 
 
         claimant is able to establish a prima facie case for 
 
         unemployability and permanent total disability for only a factual 
 
         showing of a  reasonable but unsuccessful effort to find suitable 
 
         work.  If defendants then fail to go forward with the evidence on 
 
         the issue of availability of suitable work to claimant, claimant 
 
         is entitled as a matter of law to an award of permanent total 
 
         disability.  See Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
         (Iowa 1985). However, the industrial commissioner has directed 
 
         that this doctrine cannot be applied without a showing of a 
 
         reasonable effort to secure suitable employment.  Collins v. 
 
         Friendship Village Inc., Case No. 679258 (Appeal Decision filed 
 
         October 31, 1988); Pyle v. Carstensen Freightlines Inc., Case No. 
 
         753661 (Appeal Decision filed July 27, 1987).
 
                                                       
 
                                                                
 
         
 
              Claimant has not shown a sufficient job search effort to 
 
         apply the automatic burden shifting rule under the odd-lot 
 
         doctrine.  Claimant may very well be justified in not accepting 
 
         employment in the $5.00 to $6.00 an hour range or any employment 
 
         during her educational pursuits, but the undersigned cannot 
 
         assume without claimant's application for all available job 
 
         opportunities that she would not have been hired for these jobs.  
 
         It would appear from claimant's testimony that she probably 
 
         agrees that she can obtain a $5.00 an hour job if she wanted it.
 
         
 
              Although the odd-lot doctrine will not be applied, the 
 
         undersigned disagrees with defendants' contention that her 
 
         disability is only mild.  Claimant does indeed have a very 
 
         serious disability which must be compensated.  Claimant's medical 
 
         condition before the work injury was excellent and she had no 
 
         functional impairments or ascertainable disabilities.  Claimant 
 
         was able to fully perform physical tasks in her factory work 
 
         involving moderate to heavy lifting and repetitive use of her 
 
         hands and arms.  As a result of the work injury, claimant's 
 
         physicians have prohibited the type of employment for which she 
 
         is best suited given her past experience and lack of formal 
 
         education.
 
         
 
              Claimant has shown motivation to continue educational 
 
 
 
                            
 
                                                                
 
         pursuits.  This agency has held that predicting the success of 
 
         vocational retraining and/or future employment searches as a 
 
         result of that training is speculation and is not a proper factor 
 
         in measuring an injured worker's current industrial disability. 
 
         Steward v. Crouse Cartage Co., Appeal Decision filed February 
 
         20, 1987.  This agency, however, is available upon proper 
 
         application in the future to review such matters when more facts 
 
         concerning this retraining effort are available.
 
         
 
              Claimant is 59 years of age and nearing the end of her 
 
         working career.  Her loss of future earnings from employment due 
 
         to her disability is not as severe as would be the case for a 
 
         younger individual.  On the other hand, claimant had no 
 
         retirement plans at the time of the injury and it is well known 
 
         that many persons continue working well into their 60's and early 
 
         70's providing they are in good health.
 
         
 
              Claimant presents an interesting argument that this agency 
 
         cannot consider claimant's advanced age in awarding benefits as 
 
         such would constitute age discrimination.  Claimant relies on the 
 
         case of Diederich, 219 Iowa 587, 258 N.W. 899 (1935).  However, 
 
         the undersigned is only an administrative law judge.in this 
 
         proceeding.  The commissioner and the courts have long held that 
 
         age is one of the factors of industrial disability.  Olson, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).  Age may have a negative or 
 
         positive impact on the award of permanent partial disability 
 
         benefits.  See Becke v. Turner-Busch Inc., 34 Biennial Reports, 
 
         Iowa Industrial Commissioner 34 (Appeal Decision 1979); compare 
 
         Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
         Reports 426 (Appeal Decision 1981).  Consequently, claimant will 
 
         have to make her interesting arguments on age discrimination to a 
 
         higher authority as this administrative law judge is bound by 
 
         agency precedent.
 
         
 
              Defendants are not correct in attributing claimant's plight 
 
         to economic factors which precipitated the plant closure by 
 
         Western.  The undersigned would agree that a disability resulting 
 
         from a state of economy is not compensable.  See Webb v. Lovejoy 
 
         Construction Co., II Iowa Industrial Commissioner Reports 430 
 
         (Appeal Decision 1981).  However, in this case, claimant was 
 
         unable to return to her job in the plant due to the work injury. 
 
         Defendants have not shown that light duty work was available in 
 
         this plant.  Its closure therefor is irrelevant.
 
         
 
              The fact remains that claimant is still not back to work in 
 
         the labor force despite the efforts made to date.  Claimant's 
 
         refusal to follow-up on many of the $5.00 an hour jobs has failed 
 
         to show that these jobs were not available to her.  However, such 
 
         jobs are well below her earning capacity at Western.  She has 
 
         shown by her subsequent job searches that obtaining higher paying 
 
         jobs is quite limited for her at the present time.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 60 percent loss of 
 
         her earning capacity from her work injury.  Based upon such a 
 
                                                       
 
                                                                
 
         finding, claimant is entitled as a matter of law to 300 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 60 percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that she was testifying truthfully.
 
         
 
              2.  The work injury of February 5, 1988, is a cause of a 15 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activity 
 
         consisting of limited overhead use of arms with no lifting over 
 
         10 pounds and no repetitive use of arms.  Claimant had no 
 
         ascertainable functional impairments prior to the work injury.
 
         
 
              3.  The work injury of February 5, 1988, and the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         a 60 percent loss of earning capacity.  Claimant is 59 years of 
 
         age and has a tenth grade education.  Claimant has earned her 
 
         GED. Claimant has no ascertainable loss of earning capacity prior 
 
         to the work injury.  Claimant's physician imposed work/activity 
 
         restrictions prevent a return to the work she was performing at 
 
         the time of injury.  Claimant's only work experience has been in 
 
         the job that she can no longer perform.  Claimant is making a 
 
         reasonable and laudable effort to retrain herself.  Despite good 
 
         motivation and efforts to return to gainful employment, claimant 
 
         has not been able to return to such employment and has suffered a 
 
         severe loss of actual earnings.  Claimant's current language and 
 
         math scores are very low which would affect her ability to secure 
 
         sedentary clerical work requiring skill testing.  Claimant has 
 
         not shown that the $5.00 an hour jobs with limited benefits 
 
         sometimes available in the labor market are not available to her.  
 
         She naturally and understandably wishes to continue her education 
 
         rather than pursue such low paying jobs.  No part of claimant's 
 
         loss of earning capacity is due to the plant shut down by Western 
 
         during claimant's healing period because claimant was rendered 
 
         incapable of returning to the plant by the work injury.
 
         
 
              Claimant has not shown a sufficient work search in order to 
 
         evoke the odd-lot doctrine on the availability of suitable 
 
         replacement employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 300 weeks 
 
         of permanent partial disability benefits.
 
         
 
                                     ORDER
 
         
 
              1.  Defendants shall pay to claimant three hundred (300) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred fifty-two and 30/100 dollars ($352.30) from October 
 
                                                       
 
                                                                
 
         25, 1988.
 
         
 
              2.  Defendants shall pay healing period stipulated to in the 
 
         prehearing report.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid as stipulated in the prehearing report.
 
         
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 19th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave  Suite 111
 
         Des Moines, IA  50312
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309-2421
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed February 19, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA BROWN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 878934
 
         WESTERN INTERNATIONAL, INC.,
 
                                                   A R B I T R A T I O N
 
              Employer,
 
                                                      D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803 - Nonprecedential - extent of permanent partial disability 
 
         benefits.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUANITA A. KYLES
 
                                                    File No. 878944
 
              Claimant,
 
                                                 A R B I T R A T I 0 N
 
         
 
         VS.                                      D E C I S I O N
 
         
 
         IBP, INC.
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Juanita A. Kyles, filed June 20, 1988.  A hearing was 
 
         held on May 3, 1990, in Council Bluffs, Iowa.  Claimant testified 
 
         on her own behalf.  Ms. Lisa Brockway testified for defendant.  
 
         The record also consists of claimant's exhibits 1-9 and  11-24, 
 
         as well as defendant's exhibits F-K.
 
         
 
                                      ISSUES
 
         
 
              The sole issues for determination are: 1) whether there is a 
 
         causal connection between claimant's alleged injury and either 
 
         temporary or permanent disability; 2) whether claimant is 
 
         entitled to temporary total disability or healing period benefits 
 
         from May 7, 1988 to July 7, 1988 and from August 4, 1988 to April 
 
         13, 1989; and, 3) whether claimant is entitled to permanent  
 
         partial disability benefits to the foot or to the lower 
 
         extremity.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant was hired by defendant to trim jaws at defendant's 
 
         plant.  On May 6, 1988, claimant sustained a work injury.  A 
 
         knife slipped into claimant's boot and sliced the top of 
 
         claimant's foot.  The company nurse applied first aid treatment 
 
         and claimant was advised to soak and elevate her foot.
 
         
 
              On the next day, claimant telephoned the plant and indicated 
 
         she would not be able to work.  At approximately 10:00 a.m.,
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KYLES V. IBP, INC.
 
         Page 2
 
         
 
         
 
         claimant was advised by the company nurse to come into the plant 
 
         and to have her wound dressed and cleaned.  Claimant followed 
 
         those instructions.
 
         
 
              On Monday, May 9 1988, claimant telephoned the plant and 
 
         spoke with an individual by the name of Doug.  Claimant informed 
 
         him she would not be available to work as her foot had swollen.
 
         
 
              On Wednesday, May 11, 1988, claimant sought medical 
 
         treatment at the emergency room of the Immanuel Hospital.  Two 
 
         days later, claimant was directed by defendant to obtain medical 
 
         treatment at the Cogley Clinic. Claimant was treated by James R. 
 
         Rochelle, M.D., an orthopedic surgeon.  Two  surgical procedures 
 
         were performed on claimant.  The latter procedure was  performed 
 
         on November 30, 1988.  Claimant was diagnosed as having "chronic 
 
         tenosynovitis of the left anterior tibial tendon."
 
         
 
              Dr. Rochelle opined claimant had reached her maximum medical 
 
         improvement as of April 13, 1989.  Dr. Rochelle also opined 
 
         claimant sustained a permanent impairment.  He rated claimant as: 
 
         "10-15% of the lower extremity at the level of the ankle."   Dr. 
 
         Rochelle also prescribed orthopedic shoes for claimant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         she has sustained a permanent partial disability.  Dr. Rochelle 
 
         rated claimant as having a 10-15 percent impairment to the lower 
 
         extremity at the level of the ankle.  The undersigned  determines 
 
         this is a scheduled member injury to the foot.  The authority for 
 
         this decision is based on Elam v. Midland Mfg., II Industrial 
 
         Commissioner Reports 141 (1981).  In Elam, it was determined that 
 
         the wrist is part of the hand, and not a part of the upper 
 
         extremity.  It stands to reason that if the wrist forms part of 
 
         the hand, the ankle should form part of the foot.  Therefore, in 
 
         light of the above, it is the determination of the undersigned 
 
         that claimant has sustained a 15 percent permanent partial 
 
         disability to the foot.  This computes to 22.5 weeks of  
 
         permanent partial disability benefits at the stipulated rate of 
 
         $171.43 per week.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         healing period benefits from May 7, 1988 to July 7, 1988  and 
 
         from August 4, 1988 to April 13, 1989, a period of 44.714 weeks.  
 
         It is the determination of the undersigned that claimant has 
 
         proven by a preponderance of the evidence that she is entitled to 
 
         healing period benefits for the same time period.  Claimant's 
 
         treating physician did not determine that claimant had reached  
 
         maximum medical improvement until April 13, 1989.  Claimant had 
 
         attempted to return to work at defendant's plant, but because of 
 
         miscommunication within the plant, personnel believed claimant 
 
         had volun-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KYLES V. IBP, INC.
 
         Page 3
 
         
 
         
 
         tarily terminated.  Such was not the case.  Claimant had only 
 
         told a co-employee that she could not return to work until her 
 
         foot had healed.  Claimant also tried to become reinstated, but 
 
         Tom Dunlop of the personnel department was unavailable to her.  
 
         Through no fault of her own, claimant was  unable to participate 
 
         in a light duty position.  It is the decision of  the  
 
         undersigned that claimant was in the healing period for the 
 
         above-mentioned time frame.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay healing period benefits for forty-four 
 
         point seven-one-four (44.714) weeks at the stipulated rate of one 
 
         hundred seventy-one and 43/100 dollars (.$171.43) per week.
 
         
 
              Defendant is to also pay permanent partial disability 
 
         benefits for twenty-two point five (22.5) weeks at the stipulated 
 
         rate of one hundred seventy-one and 43/100 dollars ($171.43) per 
 
         week commencing April 14, 1989.
 
         
 
              Defendant shall receive full credit for all benefits 
 
         previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Costs are assessed to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.  However, defendant is not 
 
         responsible for:
 
         
 
              $175.00   Dr. Rochelle professional fee
 
               143.00   Court reporter fee for deposition of Dr. Rochelle
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
         
 
              Signed and filed this 25th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         KYLES V. IBP, INC.
 
         Page 4
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Marvin L. Vannier
 
         Attorney at Law
 
         221 South Main
 
         Council Bluffs  IA  51503
 
         
 
         Mr. Marlon D. Mormann
 
         Attorney at Law
 
         P 0 Box 515, Dept #41
 
         Dakota City  NE  68731
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUANITA A. KYLES              :
 
                                          :        File No. 878944
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            IBP, INC.,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Juanita A. Kyles, filed June 20, 1988.  A 
 
            hearing was held on May 3, 1990, in Council Bluffs, Iowa.  
 
            Claimant testified on her own behalf.  Ms. Lisa Brockway 
 
            testified for defendant.  The record also consists of 
 
            claimant's exhibits 1-9 and 11-24, as well as defendant's 
 
            exhibits F-K.
 
            
 
                                      issues
 
            
 
                 The sole issues for determination are:  1) whether 
 
            there is a causal connection between claimant's alleged 
 
            injury and either temporary or permanent disability; 2) 
 
            whether claimant is entitled to temporary total disability 
 
            or healing period benefits from May 7, 1988 to July 7, 1988 
 
            and from August 4, 1988 to April 13, 1989; and, 3) whether 
 
            claimant is entitled to permanent partial disability 
 
            benefits to the foot or to the lower extremity.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was hired by defendant to trim jaws at 
 
            defendant's plant.  On May 6, 1988, claimant sustained a 
 
            work injury.  A knife slipped into claimant's boot and 
 
            sliced the top of claimant's foot.  The company nurse 
 
            applied first aid treatment and claimant was advised to soak 
 
            and elevate her foot.
 
            
 
                 On the next day, claimant telephoned the plant and 
 
            indicated she would not be able to work.  At approximately 
 
            10:00 a.m.,
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant was advised by the company nurse to come into the 
 
            plant and to have her wound dressed and cleaned.  Claimant 
 
            followed those instructions.
 
            
 
                 On Monday, May 9, 1988, claimant telephoned the plant 
 
            and spoke with an individual by the name of Doug.  Claimant 
 
            informed him she would not be available to work as her foot 
 
            had swollen.
 
            
 
                 On Wednesday, May 11, 1988, claimant sought medical 
 
            treatment at the emergency room of the Immanuel Hospital.  
 
            Two days later, claimant was directed by defendant to obtain 
 
            medical treatment at the Cogley Clinic.  Claimant was 
 
            treated by James R. Rochelle, M.D., an orthopedic surgeon.  
 
            Two surgical procedures were performed on claimant.  The 
 
            latter procedure was performed on November 30, 1988.  
 
            Claimant was diagnosed as having "chronic tenosynovitis of 
 
            the left anterior tibial tendon."
 
            
 
                 Dr. Rochelle opined claimant had reached her maximum 
 
            medical improvement as of April 13, 1989.  Dr. Rochelle also 
 
            opined claimant sustained a permanent impairment.  He rated 
 
            claimant as:  "10-15% of the lower extremity at the level of 
 
            the ankle."  Dr. Rochelle also prescribed orthopedic shoes 
 
            for claimant.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that she has sustained a permanent partial disability.  Dr. 
 
            Rochelle rated claimant as having a 10-15 percent impairment 
 
            to the lower extremity at the level of the ankle.  The 
 
            undersigned determines this is a scheduled member injury to 
 
            the foot.  The authority for this decision is based on Elam 
 
            v. Midland Mfg., II Industrial Commissioner Reports 141 
 
            (1981).  In Elam, it was determined that the wrist is part 
 
            of the hand, and not a part of the upper extremity.  It 
 
            stands to reason that if the wrist forms part of the hand, 
 
            the ankle should form part of the foot.  Therefore, in light 
 
            of the above, it is the determination of the undersigned 
 
            that claimant has sustained a 15 percent permanent partial 
 
            disability to the foot.  This computes to 22.5 weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of $171.43 per week.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to healing period benefits from May 7, 1988 to July 
 
            7, 1988 and from August 4, 1988 to April 13, 1989, a period 
 
            of 44.714 weeks.  It is the determination of the undersigned 
 
            that claimant has proven by a preponderance of the evidence 
 
            that she is entitled to healing period benefits for the same 
 
            time period.  Claimant's treating physician did not 
 
            determine that claimant had reached maximum medical 
 
            improvement until April 13, 1989.  Claimant had attempted to 
 
            return to work at defendant's plant, but because of miscommu
 
            nication within the plant, personnel believed claimant had 
 
            voluntarily terminated.  Such was not the case.  Claimant 
 
            had only told a co-employee that she could not return to 
 
            work until her foot had healed.  Claimant also tried to 
 
            become reinstated, but Tom Dunlop of the personnel 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            department was unavailable to her.  Through no fault of her 
 
            own, claimant was unable to participate in a light duty 
 
            position.  It is the decision of the undersigned that 
 
            claimant was in the healing period for the above-mentioned 
 
            time frame.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to pay healing period benefits for 
 
            forty-four point seven-one-four (44.714) weeks at the 
 
            stipulated rate of one hundred seventy-one and 43/l00 
 
            dollars ($171.43) per week.
 
            
 
                 Defendant is to also pay permanent partial disability 
 
            benefits for twenty-two point five (22.5) weeks at the 
 
            stipulated rate of one hundred seventy-one and 43/l00 
 
            dollars ($171.43) per week commencing April 14, 1989.
 
            
 
                 Defendant shall receive full credit for all benefits 
 
            previously paid.
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs are assessed to defendant pursuant to Division of 
 
            Industrial Services Rule 343-4.33.  However, defendant is 
 
            not responsible for:
 
            
 
                 $175.00   Dr. Rochelle professional fee
 
                  143.00   Court reporter fee for deposition of Dr. 
 
            Rochelle
 
            
 
                 Defendant shall file a claim activity report upon 
 
            payment of this award.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Marvin L. Vannier
 
            Attorney at Law
 
            221 South Main
 
            Council Bluffs  IA  51503
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Mr. Marlon D. Mormann
 
            Attorney at Law
 
            P O Box 515, Dept #41
 
            Dakota City  NE  68731
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1803
 
                                         Filed June 25, 1990
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUANITA A. KYLES
 
                                                 File No. 878944
 
              Claimant,
 
                                              A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         IBP, INC.,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant sustained a knife wound to her foot while at work. 
 
         Complications developed and claimant had two surgical procedures 
 
         at the ankle.  Held:  claimant sustained an injury to her foot 
 
         rather than to her lower extremity.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803
 
                                                    Filed June 25, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUANITA A. KYLES              :
 
                                          :        File No. 878944
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            IBP, INC.,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant sustained a knife wound to her foot while at work.  
 
            Complications developed and claimant had two surgical 
 
            procedures at the ankle.  Held:  claimant sustained an 
 
            injury  to her foot rather than to her lower extremity.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY L. PREUL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 878949
 
            FARMLAND FOODS,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Gary L. 
 
            Preul, claimant, against Farmland Foods, employer 
 
            (hereinafter referred to as Farmland), and Aetna Casualty & 
 
            Surety Company, insurance carrier, defendants, for workers' 
 
            compensation benefits as a result of an alleged injury on 
 
            April 28, 1988.  On March 21, 1990, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Farmland at the time of the alleged injury.
 
            
 
                 2.  If defendants are liable for the alleged injury, 
 
            claimant is entitled to temporary total disability or heal
 
            ing period benefits from August 1, 1988 through October 31, 
 
            1988.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin as of November 1, 1988.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits shall be $267.74.
 
            
 
                 6.  With reference to the medical bills claimant is 
 
            requesting, it was stipulated that the provider would tes
 
            tify that the charges are fair and reasonable and defendants 
 
            are not offering contrary evidence.  The reasonableness of 
 
            the treatment was disputed.  It was agreed that all 
 
            requested expenses were causally connected to the medical 
 
            condition upon which the claim herein is based but that the 
 
            issue of their causal connection to any work injury remained 
 
            an issue to be decided herein.
 
            
 
                 7.  Claimant was paid sick pay under the union contract 
 
            in the amount of $4,710.40 due to his absence from work as a 
 
            result of his alleged work injury.  Entitlement to credit 
 
            under Iowa Code section 85.38(2) is disputed.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of his employment with Farmland;
 
            
 
                  II.  The causal connection of the injury to the 
 
            claimed disabilities;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits, including what credit, if any, should be given 
 
            for sick leave pay; and,
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27 and to an independent 
 
            medical examination under Iowa Code section 85.39
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue in this 
 
            proceeding.  Defendants contend that the history of a lift
 
            ing incident on April 28, 1988, was not provided to physi
 
            cians prior to the independent examination by a chiropractor 
 
            in December of 1989.  Defendants are implying that the story 
 
            is a recent fabrication.  Claimant's demeanor while testify
 
            ing indicated that he was testifying truthfully.  The lack 
 
            of a history of the work incident in many medical reports 
 
            prior to December of 1989 did not change the undersigned 
 
            deputy's opinion formed at hearing as will be explained 
 
            below.  Therefore, claimant is found credible and much of 
 
            the following findings are based upon this credibility 
 
            finding.
 
            
 
                 Prior to the injury, claimant worked for Farmland for 
 
            25 years performing various jobs as a meat cutter/packer on 
 
            the cut floor, loading dock, boning department and various 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            tasks servicing the lines.  Much of the work required heavy 
 
            pushing, pulling and lifting of meat products, boxes, carts, 
 
            and vats.  Claimant continues to work at Farmland at the 
 
            present time despite a 30 pound lifting restriction and per
 
            manent partial impairment as a result of back surgery.  
 
            Farmland has accommodated for this disability and claimant 
 
            is not assigned to work which exceeds his limitations.  
 
            Claimant is familiar with his restrictions and is using 
 
            better lifting technics to perform his work.
 
            
 
                 On or about April 28, 1988, claimant injured his low 
 
            back while lifting a heavy cart of meat products.  Claimant 
 
            felt immediate severe pain at his belt line and reported to 
 
            the nurse.  Claimant was referred to Alan H. Fruin, M.D., 
 
            who examined claimant the next day.  Dr. Fruin did not 
 
            relate in his report a history of a specific incident at 
 
            work.  The history reported by Dr. Fruin was hip and leg 
 
            pain for a number of years with recent difficulty.  Dr. 
 
            Fruin recommended that no further inquiry be made unless a 
 
            recurrence of symptoms occurred.
 
            
 
                 Claimant then continued to work at Farmland and contin
 
            ued to experience gradually worsening pain in the belt line, 
 
            hip and legs upon lifting and bending.  Being dissatisfied 
 
            with the care he was receiving from Farmland, claimant 
 
            sought legal advice and then sought medical treatment from 
 
            Quentin Durward, M.D., a neurosurgeon.  After tests revealed 
 
            herniated discs in claimant's spine and a confirmation of 
 
            this diagnosis by Kevin Luidahl, M.D., Dr. Durward performed 
 
            back surgery.  Following completion of a recovery period 
 
            after surgery, claimant returned to work on November 1, 
 
            1988, with a 30 pound weight restriction.  Claimant had a 
 
            good result from the surgery with only mild lingering pain 
 
            and no leg symptoms.
 
            
 
                 Dr. Durward and Dr. Luidahl also did not relate in 
 
            their reports any specific injury on April 28, 1988, but do 
 
            report a 15 year history of back problems which had recently 
 
            become worse.  In a report dated September 8, 1988, Dr. 
 
            Durward stated that he recalled claimant complaining of neck 
 
            and shoulder pain a week before the surgery.  Defendants 
 
            argue that this was the only specific event reported by Dr. 
 
            Durward and this event did not relate to the low back.  
 
            However, the undersigned deputy believes that Dr. Durward's 
 
            reference to the neck and shoulder injury at that time was 
 
            simply due to the fact that he was at that time treating 
 
            claimant for severe neck pain which apparently developed 
 
            while claimant was recovering from low back surgery.  The 
 
            report actually supports claimant's case as it is clear that 
 
            Dr. Durward had a practice of not fully reporting a complete 
 
            history of specific events in his medical reports.  Claimant 
 
            has been examined by two other medical practitioners in 
 
            preparation for this litigation, namely, Patrick Luse, D.C., 
 
            in December of 1989, and John J. Dougherty, M.D., an ortho
 
            pedic surgeon in January of 1990.  Both of these practition
 
            ers reported a specific incident which claimant related to 
 
            them on April 28, 1988.  Although there is a lack of any 
 
            reference of specific injuries in the medical reports prior 
 
            to December of 1989, all of the prior medical reports begin
 
            ning after the April 1988 incident make reference to a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            recent increase in symptoms.  Claimant's credible testimony 
 
            that this occurred after the lifting incident at work is 
 
            consistent with these reports.
 
            
 
                 As a result of the injury of April 28, 1988, claimant 
 
            has suffered a five to ten percent permanent partial impair
 
            ment to the body as a whole and permanent restrictions on 
 
            his physical activity consisting of a 30 pound weight lift
 
            ing restriction.  There was little disagreement in the medi
 
            cal evidence that claimant suffers from some degree of per
 
            manent partial impairment.  The fighting issue is the causal 
 
            connection of this impairment to the April 1988 work injury.  
 
            Dr. Durward opined that claimant had a five percent impair
 
            ment but did not provide an opinion as to its causal connec
 
            tion to any specific work incident.  Whether or not he was 
 
            asked to do so by any party to this case is unknown.  In 
 
            December of 1989, Dr. Luse examined claimant and opined that 
 
            claimant suffers from a 15 percent permanent partial impair
 
            ment to the body as a whole.  Again, there was no specific 
 
            causal connection opinion.  In January of 1990, Dr. 
 
            Dougherty examined claimant and opined that claimant had a 
 
            15 percent permanent.  Dr. Dougherty specifically opined 
 
            that ten percent of this impairment was attributable to the 
 
            April 28, 1988, incident at work if indeed the incident 
 
            actually took place.  The above finding of causal connection 
 
            is based upon Dr. Dougherty's uncontroverted opinion com
 
            bined with claimant's credible testimony.
 
            
 
                 As a result of the work injury of April 28, 1988, and 
 
            the resulting five to ten percent permanent partial impair
 
            ment and permanent work restriction, claimant has suffered a 
 
            20 percent loss of earning capacity.  Although claimant's 
 
            medical condition before the work injury was not excellent 
 
            and he had some functional impairment, claimant's industrial 
 
            disability was minimal.  He was able to perform physical 
 
            tasks including repetitive heavy lifting.  Although he had 
 
            prior injuries, he was able to fully recover from these 
 
            injuries without extensive surgery and without imposition of 
 
            permanent work restrictions.  After the work injury in this 
 
            case, claimant's permanent partial impairment increased and 
 
            permanent restrictions were imposed.  Claimant's past work 
 
            history before his job at Farmland was primarily in employ
 
            ment requiring heavy manual labor primarily in construction.  
 
            His current medical condition prevents a return to any of 
 
            these past jobs.  Claimant is 47 years of age.  Claimant 
 
            dropped out of high school in the tenth grade and has not 
 
            returned to any form of formal education.  Claimant has very 
 
            limited potential for vocational rehabilitation given his 
 
            age, education and past work experience.  However, claimant 
 
            has returned to work at Farmland without loss of pay and his 
 
            employer has apparently accommodated for his disability.  
 
            Due to his return to work, there is no need for vocational 
 
            rehabilitation at this time.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, the issue of a work injury pri
 
            marily revolved around claimant's credibility.  Given the 
 
            credibility finding, claimant was able to show by a prepon
 
            derance of the evidence that he suffered the injury as 
 
            alleged.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient along to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, as a result of the uncontro
 
            verted opinion by an orthopedic surgeon, claimant was able 
 
            to show by a preponderance of the medical evidence presented 
 
            a causal link between the work injury of April 28, 1988 and 
 
            permanent partial impairment.  As explained in the findings 
 
            of fact, the lack of specific reference to an injury prior 
 
            to December of 1988 did not outweigh the impact of 
 
            claimant's credible testimony at hearing.
 
            
 
                 III.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
            (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 20 percent loss of earning capacity as a result 
 
            of the work injury.  Based upon such a finding, claimant is 
 
            entitled as a matter of law to 100 weeks of permanent par
 
            tial disability benefits under Iowa Code section 85.34(2)(u) 
 
            which is 20 percent of 500 weeks, the maximum allowable for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                 The next issue is the amount of credit that should be 
 
            given to defendants for the employer's payment of sick leave 
 
            benefits during the time claimant was off work as a result 
 
            of the work injury.  There is little question that sick 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            leave qualifies for a credit under Iowa Code section 
 
            85.38(2) and claimant does not dispute the applicability of 
 
            that code section to sick leave benefits.  Claimant argues 
 
            that there should not be a full credit as sick leave is 
 
            fully taxable and weekly compensation benefits are not.
 
            
 
                 Such a credit issue was recently dealt with by this 
 
            agency in Beller v. Iowa State Penitentiary, Arbitration 
 
            Decision, case no. 799401, filed January 23, 1990.  Starting 
 
            from the governing interpretive rule in these cases that 
 
            workers' compensation statutes are to be liberally construed 
 
            in favor of the injured worker, Caterpillar Tractor Co. v. 
 
            Shook, 313 N.W.2d 503 (Iowa 1981), it was held that the 
 
            expressed intent of Iowa Code section 85.61 was to provide 
 
            weekly benefits which are 80 percent of claimant's after tax 
 
            gross earnings.  Consequently, it would not be consistent 
 
            with this statutory provision to allow defendants to take a 
 
            before tax credit on sick leave/disability payments under 
 
            Iowa Code section 85.38(2).  The Beller decision is logical 
 
            and will be followed in this case.  The amount of credit 
 
            allowed to employer for sick leave benefit payments shall be 
 
            the net amount which the employer receives after income and 
 
            other payroll taxes that are deducted from the amounts paid.  
 
            It was noted in the Beller decision that employers and their 
 
            carriers have the choice as to how they will pay for the 
 
            times off work incurred by injured workers.  Claimant should 
 
            not suffer adverse consequences when the employer/insurance 
 
            carrier decides to pay group benefits rather than workers' 
 
            compensation benefits.
 
            
 
                  IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, 
 
            claimant requested medical expenses set forth in exhibits A 
 
            through J and defendants stipulated in the prehearing report 
 
            that they are causally connected to the condition upon which 
 
            claimant is basing his claim.  However, there is some confu
 
            sion in the record as to what expenses claimant is request
 
            ing in exhibits A through J.  Exhibit C contains many 
 
            charges for a person other than claimant.  Also, there 
 
            appears to be an overlap between exhibits I and J.  This 
 
            confusion is largely the fault of claimant who failed to 
 
            submit a detailed itemized list of expenses at the time of 
 
            hearing.  Such an itemized list was ordered to be submitted 
 
            in the prehearing assignment order.  Claimant simply dumped 
 
            a pile of exhibits on the table at the time of hearing as 
 
            his requested expenses.  Therefore, no specific findings 
 
            could be made with reference to the medical expenses or 
 
            exhibits as they are not in appropriate form.  There will, 
 
            however, be a general award of medical benefits but only 
 
            those which are causally connected to the injury.  The par
 
            ties will have to work out on their own which expenses are 
 
            causally connected and which are not.  Should there be any 
 
            disagreement, application by the parties for more specific 
 
            findings by the undersigned on a request for rehearing could 
 
            be made.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 As claimant is entitled to an independent examination 
 
            under Iowa Code section 85.39 following an opinion by an 
 
            employer paid physician prior to that time, the charges for 
 
            Dr. Luse will be awarded.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred sixty-seven and 74/l00 dollars ($267.74) per 
 
            week from November 1, 1988.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from August 1, 1988 through October 31, 1988, at 
 
            the rate of two hundred sixty-seven and 74/l00 dollars 
 
            ($267.74) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report that are causally connected to the low 
 
            back injury and resulting permanent partial impairment found 
 
            herein.  Defendants shall pay the costs of the independent 
 
            examination of Pat Luse, D.C., in the amount of two hundred 
 
            sixty and no/l00 dollars ($260.00).  Claimant shall be reim
 
            bursed for any of these expenses paid by him.  Otherwise, 
 
            defendants shall pay the provider directly along with any 
 
            lawful late payment penalties imposed upon the account by 
 
            the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 5.  Defendants shall receive credit for previous pay
 
            ments of sick leave and medical benefits under Iowa Code 
 
            section 85.38(2) except that defendants shall not receive a 
 
            credit for income and payroll taxes paid by claimant upon 
 
            any disability or sick pay payment.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 7.  Defendants shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 8.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            632 Badgerow Bldg
 
            Sioux City  IA  51101
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, Suite 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1701
 
                                                    Filed July 6, 1990
 
                                                    LARRY P. WALSHIRE
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GARY L. PREUL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 878949
 
            FARMLAND FOODS,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1701 - Iowa Code section 85.38(2) credit for sick leave            
 
            payment
 
            
 
                 Adopted in this decision was the holding of another 
 
            deputy in Beller v. Iowa State Penitentiary, No. 799401, 
 
            filed January 23, 1990, which provided only the credit of 
 
            employers under that code section is limited to only the 
 
            amounts actually received by claimant after taxes.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN L. BAILEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 878958,
 
                                          :          878950 & 862194
 
            KANE MILLER CORP.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INS. CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Dean L. 
 
            Bailey, claimant, against Kane Miller Corporation, employer, 
 
            and its insurance carrier, American Motorists Insurance 
 
            Company, and the Second Injury Fund of Iowa, defendants, to 
 
            recover benefits as the result of an alleged injury on 
 
            November 20, 1986 to the right hand and arm, an alleged 
 
            injury on December 27, 1986 to the left hand and arm and an 
 
            alleged injury on August 20, 1987 to the right leg.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on March 19, 1991 in Cedar Rapids, 
 
            Iowa.  The case was considered fully submitted at the close 
 
            of the hearing.  The record in this case consists of the 
 
            testimony of claimant and his wife, Carol Jean Bailey; and 
 
            joint exhibits 1-3, 5, 7-8 (A-G), 9 and 10.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            19, 1991, the parties have stipulated as follows:
 
            
 
                 1.  That an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injuries;
 
            
 
                 2.  That the extent of entitlement to weekly 
 
            compensation for temporary total disability or healing 
 
            period, if defendants are liable for the injury, is from 
 
            August 21, 1987 through September 8, 1987;
 
            
 
                 3.  That the commencement date for permanent partial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability, in the event such benefits are awarded, is 
 
            September 9, 1987;
 
            
 
                 4.  That with regard to medical expenses, the provider 
 
            of services would testify that the fees and treatment were 
 
            reasonable and necessary; and,
 
            
 
                 5.  That defendants are entitled to credit for 2.714 
 
            weeks of compensation paid at the stipulated rate of $165.46 
 
            per week prior to the hearing.
 
            
 
                 The issues to be determined in this case include:
 
            
 
                 1.  That claimant sustained an injury on November 20, 
 
            1986, December 27, 1986, and August 20, 1987, which arose 
 
            out of and in the course of employment with employer;
 
            
 
                 2.  Whether the alleged injuries are a cause of 
 
            temporary and permanent disability;
 
            
 
                 3.  Whether claimant's medical expenses are causally 
 
            connected to the work injuries; and,
 
            
 
                 4.  Whether claimant is entitled to second injury fund 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made and the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant testified that he was born on August 9, 1963 
 
            and completed the eleventh grade of school.  He received his 
 
            GED certificate in November 1981.  He was in the United 
 
            States Army from December 2, 1980 through July 4, 1984, when 
 
            he obtained an honorable discharge.  During his 10 years in 
 
            the armed services he was a computer machine operator.  Upon 
 
            discharge he obtained a job as a cook until November 1984.  
 
            He was incarcerated in the Iowa State prison system for 2 
 
            1/2 years thereafter until September 1986, when he commenced 
 
            employment at Kane Miller Corporation a/k/a Tama Meat 
 
            Packing Company.  He testified that aside from a few minor 
 
            injuries which completely healed prior to his employment 
 
            with defendant he was in good health and asymptomatic.  
 
            Initially, he was assigned to the miscellaneous crew and 
 
            worked wherever there was a need.  He worked in this 
 
            capacity for about one month and was then assigned to the 
 
            kill floor.  He worked on the bung tier assembly line.  He 
 
            described the procedure as requiring bilateral use of this 
 
            hands, although he performed all knife work with his right 
 
            hand.  The procedure he used was performed every 13 seconds.
 
            
 
                 Claimant testified that on November 20, 1986, he woke 
 
            up in the morning and could hardly move his right hand and 
 
            arm.  However, he could not relate the pain to any specific 
 
            event or incident.  He conferred with a physician who 
 
            prescribed medication.  He testified that on December 27, 
 
            1986, he experienced the same systems in his left hand as he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            had previously experienced in his right hand.  Again, he 
 
            could not relate it to any specific event or incident.  He 
 
            reported his symptoms to Gary Fitzgerald, his supervisor, 
 
            who referred him to the company nurse.  She referred him to 
 
            Dennis I. Mallory, M.D.  He saw Dr. Mallory in January 1987 
 
            and he diagnosed tendonitis and prescribed medication which 
 
            made him sick.  Claimant testified he saw Dr. Mallory again 
 
            in February 1987, when he had the flu.  Dr. Mallory recom
 
            mended that he see a specialist and have tests performed.  
 
            According to claimant, testing never occurred because the 
 
            company nurse did not comply with Dr. Mallory's orders.
 
            
 
                 Claimant testified that he continued to work with pain 
 
            in his hands and arms because he could not afford to take 
 
            time off.  On August 20, 1987, claimant was relieving 
 
            another worker on the second rail off line when opening up 
 
            the cow's belly with a knife, his hand slipped and the knife 
 
            ended up in his right leg, a few inches from his kneecap.  
 
            The lead man on the kill floor carried him to the nurse's 
 
            office and he was seen by Dr. Mallory who cleaned out the 
 
            stab wound.  He missed a few weeks of work and returned to 
 
            regular duty on September 9, 1987.  Claimant testified that 
 
            he was off work for about a week in October 1987 due to 
 
            nasal problems.  When he returned to work he was told that 
 
            he was fired.
 
            
 
                 Claimant testified that he did not work again until 
 
            January 1988, when he obtained a job as a cook.  He worked 
 
            for one month and quit because he was able to make more 
 
            money on unemployment benefits.  In May 1988, he started 
 
            selling insurance for American Family Assurance Company.  
 
            Between February and May 1988, he and his wife collected 
 
            ADC.  Claimant testified that he quit this job in August 
 
            1988, because he could not sell the product.  He then went 
 
            to work for his father-in-law who owns a 1500 acre game farm 
 
            and a fish hatchery.  He worked as a farmhand doing general 
 
            farm work, feeding the animals and driving the tractor.  He 
 
            quit in June 1989, when his wife filed for divorce.  He then 
 
            procured a job as manager of a car wash company.  He 
 
            testified that he worked about 60 hours a week and was a 
 
            general handyman.  He quit in January 1990, because the pay 
 
            was only $3.50 an hour and went to work for Mary Wood 
 
            Orchards Tree Farm as a pruner.  He quit this job in March 
 
            1990 because it required walking between 10-15 miles per day 
 
            and because his hands began to swell.  He then took a job 
 
            with Terminix as a termite technician.  He worked six days a 
 
            week and earned $6.50 an hour.  This type of work required 
 
            extensive use of his hands and arms, bending and crawling.  
 
            He stated that his wrists gave out and could no longer 
 
            perform the work.  He was fired in September 1990.
 
            
 
                 Claimant testified that he has been unemployed since 
 
            September 1990.  He has looked for work in restaurants, car 
 
            dealerships, factories, nursing homes and apartment 
 
            complexes.  He stated that he applied for these jobs despite 
 
            the fact that he experiences constant numbness and tingling 
 
            in his hands, pain in his shoulder and right leg pain.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was seen by Axel T. Lund, M.D., on November 20, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1988, with complaints of tenderness in the dorsum of the 
 
            right hand.  He diagnosed tendonitis and prescribed Motrin 
 
            and hot soaks (Exhibit 8, page 38).  Claimant presented to 
 
            Dr. Lund on December 27, 1986, with complaints of left elbow 
 
            and hand pain.  No injury was identified.  His range of 
 
            motion was normal.  Dr. Lund diagnosed tendonitis and 
 
            prescribed Motrin and hot packs.  Claimant presented no 
 
            complaints of right hand pain at this time (Ex. 8, p. 38).  
 
            On January 16, 1987, claimant presented to Dr. Lund with 
 
            respiratory complaints and pain and tenderness in his left 
 
            wrist and forearm.  An EMG was scheduled to determine the 
 
            etiology of his wrist complaints.  Dr. Lund's progress notes 
 
            do not contain any reference to claimant's complaints of 
 
            right or left hand pain during this examination (Ex. 8, p. 
 
            39).  On January 19, 1987, claimant was referred by the 
 
            company nurse to Dennis I. Mallory, M.D., for evaluation 
 
            referable to bilateral hand pain and swelling due to 
 
            injuries sustained on January 13, 1987.  Claimant presented 
 
            to Dr. Mallory with complaints of pain and pulling sensation 
 
            in the left hand--third finger flexor surface.  Dr. Mallory 
 
            diagnosed tendonitis of the left hand and ruled out tendon 
 
            entrapment.  He prescribed Naprosyn and noted that no perma
 
            nent defect was expected or further treatment needed.  He 
 
            felt claimant was able to presume regular duty on January 
 
            20, 1987 (Ex. 8, p. 6).  On July 18, 1988, claimant was seen 
 
            in the emergency room after striking his left thumb with a 
 
            hammer while driving a bearing into a U-joint on his car.  
 
            An x-ray was negative and the wound was cleaned and dressed 
 
            (Ex. A, p. 2).  On August 20, 1987, claimant was referred by 
 
            the company nurse to Dr. Mallory for treatment of a stab 
 
            wound to his right lower leg.  The wound was irrigated and 
 
            probed and a dressing applied.  Dr. Mallory took claimant 
 
            off work until September 8, 1987.  He reported that no 
 
            permanent defect is expected as a result of the injury and 
 
            claimant will be able to resume regular work on September 9, 
 
            1987 (Ex. 8, pp. 7-8).
 
            
 
                 Personnel records from claimant's employer dated 
 
            October 26, 1987, signed by Robert A. Bristol, Director of 
 
            Industrial Relations, state that claimant voluntarily quit 
 
            his job at the packing company without giving notice or 
 
            reason and last worked on October 17, 1987 (Ex. 1, pp. 
 
            12-13).
 
            
 
                 On March 7, 1988, Dr. Mallory reported to claimant's 
 
            attorney as follows:  "I have no record of any hand injury 
 
            in October, 1986.  I am aware of the leg injury on August 
 
            20, 1987....The wound healed as expected and he was last 
 
            seen for this injury on 09-08-87 and given a note to return 
 
            to work to regular duty on 09-09-87.  I have no reason to 
 
            believe that the outcome of this injury is anything but 
 
            acceptable..." (Ex. 8, p. 14).
 
            
 
                 In response to a letter from claimant's attorney, which 
 
            is not in evidence, Dr. Mallory reported on April 18, 1988 
 
            as follows:
 
            
 
                 The discomfort in Mr. Bailey's left hand was 
 
                 probably due to his job at Tama Pack.  The nature 
 
                 of the repetitive actions of workers at Tama Pack 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 at many times causes Tendonitis and associated 
 
                 problems with hands.  I do agree that his hand 
 
                 difficulty was probably due to work and it 
 
                 certainly probably was aggravated by work at Tama 
 
                 Pack.
 
            
 
            (Ex. 8, p. 16)
 
            
 
                 On July 18, 1988, claimant was seen in the emergency 
 
            room after striking his left thumb with a hammer while 
 
            driving a bearing into a U-joint on his car.  The wound was 
 
            superficial and basically just a skin split.  On August 20, 
 
            1988, claimant was seen in the emergency room after an 
 
            altercation with police.  He had a small abrasion in the 
 
            palm of his right hand.  Claimant presented with complaints 
 
            of pain in every joint in his arms and legs.  He related the 
 
            history of carpal tunnel syndrome of the right wrist with no 
 
            symptoms of left involvement.  He stated he was scheduled 
 
            for surgery on both wrists on Monday.  On examination, mild 
 
            swelling of the right carpal area was noted and full range 
 
            of motion both active and passive movements of the wrist and 
 
            fingers was also noted.  No deformity was seen and there was 
 
            minimal tenderness.  He was diagnosed with right wrist 
 
            sprain, treated and released (Ex. 8, pp. 1-4).
 
            
 
                 At the request of defendant employer, claimant was 
 
            examined by Dr. Mallory on May 5, 1989.  On examination, Dr. 
 
            Mallory noted a radial nerve distribution impairment of the 
 
            right hand, particularly of the thumb, index finger and 
 
            third finger.  He noted that on the basis of Tinel's and 
 
            Phalen's sign of the right hand "Mr. Bailey probably has a 
 
            carpal tunnel syndrome."  It was his impression, however, 
 
            that "he has probably sustained this at an undetermined 
 
            earlier date and is continuing to sustain injury to his 
 
            right hand and this may or may not be related to his employ
 
            ment at Tama Pack.  I rather doubt that this condition could 
 
            be specifically attributed to Tama Pack employment."  In any 
 
            event, Dr. Mallory noted that when claimant was seen on 
 
            January 19, 1987, it was only in reference to his left hand.  
 
            As to his left hand, claimant complained of pain and 
 
            numbness.  Dr. Mallory stated that "[t]his condition is 
 
            probably due to a chronic tenosynovitis, i.e. carpal tunnel 
 
            syndrome, and it may very well be related to 01-19-87."  He 
 
            recommended evaluation by an orthopedic hand specialist with 
 
            nerve conduction studies to determine the length of time 
 
            that these injuries have existed.  As to his complaints of 
 
            right leg pain, Dr. Mallory indicated that "there is a 
 
            possibility of a residual nerve damage to the right lower 
 
            leg."  He recommended evaluation by a neurosurgeon.  In 
 
            conclusion, Dr. Mallory reported that:
 
            
 
                 In general, my feeling is that this patient does 
 
                 have problems with both his left and right hands 
 
                 from an overuse syndrome.  Some of this no 
 
                 doubtedly was present during his employment at 
 
                 Tama Pack.  However, he uses his hands with 
 
                 pulling and repetitive motion at the present time 
 
                 in his employment and I am sure this is 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 contributing to his hand difficulty...
 
            
 
            (Ex. 8, p. 18)
 
            
 
                 On June 15, 1989, claimant was evaluated at the 
 
            University of Iowa Pain Clinic for right leg pain.  His 
 
            complaints were referable to intermittent burning type pain 
 
            in the area of the wound and in his posterior calf.  He was 
 
            examined and found to have mild tenderness over the right 
 
            posterior calf in a circular area.  A mild sensory deficit 
 
            to pin prick and light touch was noted over the dorsal 
 
            aspect of the right foot.  No discrete trigger points were 
 
            noted.  He was also evaluated in the Neurosurgery Outpatient 
 
            Clinic by Patrick W. Hitchon, M.D., Professor of 
 
            Neurosurgery.  Upon inspection of the right leg, Dr. Hitchon 
 
            noted no evidence of atrophy or palpable neuromas through 
 
            the skin.  There was also no evidence of dysesthesia or 
 
            coxalgia.  A motor assessment failed to display any 
 
            discrepancy.  Since sensory perception was diminished in the 
 
            L5 nerve distribution along the anterolateral aspect of the 
 
            leg and the top of the foot, EMG's and NCV's were obtained 
 
            but revealed no evidence of nerve injury or muscle 
 
            denervation.  Dr. Hitchon opined that "I believe that this 
 
            gentleman most likely suffers from a nerve injury without 
 
            motor deficit.  I do not recommend surgical exploration of 
 
            the wound owing to the lack of signs; and I believe that 
 
            with the passage of time the symptoms may improve" (Ex. 8, 
 
            pp. 19-21).
 
            
 
                 Claimant was then referred by his attorney to John R. 
 
            Walker, M.D., orthopedic specialist for a diagnostic 
 
            evaluation on June 11, 1990.  After reviewing the claimant's 
 
            medical history and noting his complaints, Dr. Walker 
 
            conducted a comprehensive physical examination.  X-rays were 
 
            taken of the right wrist, left wrist, right and left hand, 
 
            right forearm and wrist and left forearm and wrist.  They 
 
            were all within normal limits.  On examination, he had no 
 
            significant atrophy of the right or left arms or forearms.  
 
            Normal flexion, extension, radial and ulnar deviation in 
 
            both hands was also noted.  Full flexion and extension of 
 
            the right elbow and full motion of the right shoulder was 
 
            evident.  Based upon claimant's subjective symptomatology, 
 
            Dr. Walker diagnosed the following:
 
            
 
                 1.)  A chronic symptomatic sprain of the right 
 
                 wrist.
 
            
 
                 2.)  A low grade carpal tunnel syndrome of the 
 
                 right     wrist.
 
            
 
                 3.)  Chronic over use syndrome and sprain of the 
 
                 left      wrist.
 
            
 
                 4.)  A low grade carpal tunnel syndrome of the 
 
                 left      wrist and over use syndrome.
 
            
 
                 5.)  Neurological deficit due to stab wound 
 
                 involving      the superficial peroneal nerve of 
 
                 the right, lower extremity.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (Ex. 8, p. 48)
 
            
 
                 Finally, Dr. Walker concluded that claimant will never 
 
            be able to perform repetitive work with either his right or 
 
            left hand "such as is required by the job descriptions that 
 
            he gave me concerning his employment at the Tama Packing 
 
            Company."  He opined that claimant has 14 percent partial 
 
            impairment of the right upper extremity and 10 percent 
 
            permanent partial impairment of the left upper extremity.  
 
            Dr. Walker also opined that "[i]n consideration of the loss 
 
            of sensation due to the almost complete severance and injury 
 
            to the superficial branch of the peroneal nerve of the right 
 
            calf, it is my opinion that he has suffered a permanent, 
 
            partial impairment of 5% of the right, lower extremity"  
 
            (Ex. 8, p. 48).
 
            
 
                 On February 13, 1991, Dr. Walker responded to a letter 
 
            from claimant's attorney regarding his June 11, 1990 report 
 
            and stated that "[a]fter Careful Review it is my firm 
 
            opinion that all of his injuries and the Five (5) diagnoses 
 
            listed on page Eight (8) of this report are a direct result 
 
            and caused by the work injuries suffered while Dean was 
 
            working and which occurred at Tama Pack Co."  (Ex. 8, p. 
 
            49).
 
            
 
                 Claimant sought treatment at Mercy West Medical Clinic 
 
            on August 7, August 20 and September 28, 1990, when a 
 
            concrete block fell on his right foot and when he injured 
 
            both his wrists crawling under buildings.  He was taken off 
 
            work from September 28, 1990 to October 4, 1990, due to 
 
            bilateral wrist pain (Ex. 8, pp. 50-54).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained an injury to his right hand and arm on November 
 
            20, 1986, to his left hand and arm on December 27, 1986 and 
 
            to his right leg on August 20, 1987, or in the alternative, 
 
            whether claimant has sustained a cumulative injury arising 
 
            out of and in the course of his employment for an injury 
 
            date of January 13, 1987.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received injuries on November 20, 
 
            1986, December 27, 1986 and August 20, 1987 and/or a 
 
            cumulative bilateral hand injury on January 13, 1987, which 
 
            arose out of and in the course of his employment.  McDowell 
 
            v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985), the Iowa Supreme Court upheld this agency's 
 
            adoption of the cumulative injury rule for application in 
 
            factually appropriate cases.  The McKeever court cited 1B 
 
            Larson Workmen's Compensation Law, section 39.50 at 
 
            11-350.23 for two general rules as to when the injury occurs 
 
            for time limitation purposes in cumulative trauma cases.  
 
            Under Larson, the injury may occur when pain prevents the 
 
            employee from continuing to work or when pain occasions the 
 
            need for medical treatment.  The Court adopted the view that 
 
            the injury occurs when pain prevents the employee from 
 
            continuing work reasoning that "clearly the employee is dis
 
            abled and injured when, because of pain or physical 
 
            disability he can no longer work."  McKeever at 374.  The 
 
            McKeever Court then adopted what is commonly called the 
 
            "last injurious exposure rule" for successive trauma cases, 
 
            thereby placing full liability upon the carrier covering the 
 
            risk at the time of the most recent trauma bearing a causal 
 
            relationship to any disability.  McKeever at 376.
 
            
 
                 After carefully reviewing the total evidence in this 
 
            case, the undersigned concludes that the claimant has not 
 
            shown by a preponderance of the evidence that he received a 
 
            traumatic or cumulative injury to his right hand and arm and 
 
            the left hand and arm arising out of and in the course of 
 
            his employment with employer.  Claimant alleges that on 
 
            November 20, 1986, he complained to his supervisor that he 
 
            was experiencing tenderness in his right hand.  He stated 
 
            that nothing was done by the company so he went to see his 
 
            family doctor, Dr. Lund.  Dr. Lund diagnosed tendonitis and 
 
            prescribed Motrin.  On December 27, 1986, claimant was again 
 
            seen by Dr. Lund with complaints of left elbow and hand 
 
            pain.  He made no complaints of right hand pain at this time 
 
            (Ex. 8, p. 38).  Dr. Lund's progress notes indicate that the 
 
            claimant was given a slip to return back to work.  On 
 
            January 16, 1987, claimant saw Dr. Lund because of a 
 
            bronchial infection.  At this time, he complained of pain 
 
            and tenderness in his left wrist and foreman.  Dr. Lund 
 
            recommended EMG studies which claimant wanted paid for by 
 
            the company.  On January 19, 1987, he went to the company 
 
            nurse who referred him to Dr. Mallory for evaluation of 
 
            bilateral hand pain and swelling.  Dr. Mallory diagnosed 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            bilateral tendonitis and indicated that EMG studies were not 
 
            warranted.  He stated that claimant could resume regular 
 
            duty on January 20, 1987.  Dr. Lund imposed no work 
 
            restrictions.
 
            
 
                 Claimant has not shown any injury as of January 13, 
 
            1987, which developed as a result of cumulative trauma 
 
            arising out of and in the course of his employment related 
 
            to his right hand and arm and left hand and arm.  The 
 
            medical evidence presented clearly shows that claimant was 
 
            able to continue working in his usual occupation and, while 
 
            he may have had symptoms, he had not been required to leave 
 
            work on account of any injury to his upper extremities.  In 
 
            fact, claimant received no medical care for his upper 
 
            extremities and was not off work or limited in his ability 
 
            to perform his usual job until August 20, 1987, when he 
 
            stabbed himself in his right leg.  Therefore, it is 
 
            concluded that claimant has not shown a cumulative injury to 
 
            his upper extremities on January 13, 1987, which precluded 
 
            him from working.
 
            
 
                 As claimant has not shown any second injury on January 
 
            13, 1987, or an initial injury to his right hand on November 
 
            20, 1986 and a second injury to his left hand on December 
 
            27, 1986, which resulted in permanent impairment to either 
 
            extremity, claimant has not shown any entitlement to Second 
 
            Injury Fund benefits on this record.
 
            
 
                 Before the Second Injury Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  See Allen v. 
 
            Second Injury Fund, Thirty-fourth Biennial Report of the 
 
            Iowa Industrial Commissioner 15 (1980); Ross v. 
 
            Servicemaster-Story Co., Thirty-fourth Biennial Report of 
 
            the Iowa Industrial Commissioner 273 (1979).  The Act exists 
 
            to encourage the hiring of handicapped persons by making the 
 
            current employer responsible only for the amount of 
 
            disability related to an injury occurring under his employ 
 
            as if there were no preexisting disability.  See Anderson v. 
 
            Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer 
 
            and Higgs, Iowa Workers' Compensation-Law and Practice, 
 
            section 17-1.
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 Bilateral carpal tunnel syndrome resulting from one 
 
            gradual injury process constitutes the loss of two members 
 
            from one accident and is evaluated on a functional basis 
 
            under Iowa Code section 85.34(2)(s).  Himschoot v. Montezuma 
 
            Mfg., file numbers 672778 and 738235 (App. Decn., April 15, 
 
            1988) (affirmed and appealed to Court of Appeals, Feb. 22, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            1990).  The manifestation of one injury on two occasions 
 
            does not necessarily qualify an injury for Second Injury 
 
            Fund benefits under section 85.64.  McMurrin v. Quaker Oats 
 
            Co., I Iowa Industrial Commissioner Report 222 (App. Decn., 
 
            April 28, 1981).
 
            
 
                 The Second Injury Fund correctly asserts that claimant 
 
            has not shown an initial and/or cumulative injury to his 
 
            upper extremities which resulted in permanent impairment.  
 
            While claimant did receive some medical treatment in 
 
            November - December 1986, he was able to continue his job 
 
            duties and permanency rating was given at the time of the 
 
            alleged upper extremity injuries.
 
            
 
                 Since claimant has not sustained a distinct first 
 
            injury on November 20, 1986 or December 27, 1986 or a 
 
            cumulative injury on January 13, 1987, claimant has not 
 
            shown any entitlement to Second Injury Fund benefits on this 
 
            record.  Therefore, it is concluded that claimant has not 
 
            established any entitlement to Second Injury Fund benefits.  
 
            Accordingly, as to claim numbers 878950 and 878958, claimant 
 
            takes nothing from these proceedings.
 
            
 
                 As to claim number 862194, claimant has demonstrated by 
 
            a preponderance of the evidence that he sustained an injury 
 
            to his right leg on August 20, 1987, which arose out of and 
 
            in the course of his employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 20, 
 
            1987, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 Claimant bears the burden of proof.  He must show by a 
 
            preponderance of the evidence that he has suffered an injury 
 
            that has resulted in a permanent physical impairment.  The 
 
            record clearly shows that claimant was off work from August 
 
            21, 1987 through September 8, 1987.  Dr. Mallory was 
 
            treating claimant for his right lower leg injury, released 
 
            him to return to regular work on September 9, 1987 (Ex. 8, 
 
            p. 8).  Progress notes during the course of treatment 
 
            indicate that claimant was improving slowly.  By September 
 
            3, 1987, there was no further drainage from the wound or 
 
            swelling (Ex. 8, pp. 10-12).  On September 9, 1987, claimant 
 
            returned to work without any restrictions.  Claimant was off 
 
            work a few days in September with the flu and off work from 
 
            October 19 through October 24 due to a nasal infection (Ex. 
 
            8, pp. 12-13).  Contrary to claimant's testimony, he 
 
            voluntarily quit his job at Tama without giving notice or 
 
            reason to the employer (Ex. 1, pp. 13-15).
 
            
 
                 Comprehensive evaluation at the University of Iowa 
 
            Medical Center on June 16, 1989, related to pain in his 
 
            right leg revealed no evidence of nerve injury or muscle 
 
            denervation.  The neurosurgeon who evaluated claimant opined 
 
            that with the passage of time his symptoms may improve.
 
            
 
                 After quitting his job at Tama, claimant worked for six 
 
            other companies with much of the work requiring heavy 
 
            lifting, repetitive use of the arms and hands, prolonged 
 
            standing, walking, climbing, bending, stooping and crawling.  
 
            On June 11, 1990, claimant underwent a diagnostic evaluation 
 
            by John R. Walker, M.D.  There are numerous conflicts in Dr. 
 
            Walker's presentation of claimant's history and the events 
 
            recited in the record.  For instance, Dr. Walker indicated 
 
            that "patient continued to have pain in the left calf and 
 
            both hands and elbows he took a week off and on October 23, 
 
            1987 went to see Dr. Mallory who told him he had bilateral 
 
            carpal tunnel problems and should see a specialist."  Dr. 
 
            Mallory's progress notes indicate that he saw claimant on 
 
            October 23, 1987, for complaints of chest discomfort (Ex. 8, 
 
            p. 15).  Dr. Walker further states that "[b]ecause the nurse 
 
            was upset that he asked Dr. Mallory about his hands when he 
 
            was supposed to be seeing him for his leg, on October 26, 
 
            1987 he was terminated from his job."  This statement is 
 
            contrary to claimant's personnel file which indicates that 
 
            claimant last worked on October 17, 1987.  He was absent 
 
            from work from October 19 through October 24, 1987, did not 
 
            call in sick or follow other company procedures and on 
 
            October 26, 1987, he voluntarily quit without notice or 
 
            reason given.
 
            
 
                 It is unclear whether claimant related to Dr. Walker 
 
            that he had six other manual labor jobs since leaving Tama.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            While not imposing any specific restrictions, Dr. Walker 
 
            opined that claimant has a permanent partial impairment of 
 
            five percent of the right lower extremity.  Claimant argues 
 
            that Dr. Walker's permanency rating should be controlling in 
 
            the disposition of this case.  However, objective testing, 
 
            i.e. EMG and NCV studies at the University of Iowa in June 
 
            1989 revealed no evidence of nerve injury or muscle 
 
            denervation.  Physicians who treated claimant for his knife 
 
            wound in 1987 imposed no physical restrictions and 
 
            anticipated no permanency since he was healing without 
 
            complications.  Claimant sought no further treatment for 
 
            this problem and only saw Dr. Walker for an impairment 
 
            rating.  Therefore, Dr. Walker's conclusions are contrary to 
 
            the objective findings in the evidence and so remote in time 
 
            from the initial events and, therefore, not entitled to 
 
            significant weight and consideration.
 
            
 
                 Accordingly, claimant has failed to demonstrate by a 
 
            preponderance of the evidence that he has suffered an injury 
 
            that has resulted in permanent physical impairment.  
 
            Claimant has also failed to demonstrate that his evaluation 
 
            by Dr. Walker in June of 1990, is causally connected to his 
 
            alleged work injury and therefore claimant must bare the 
 
            cost of this examination.  Claimant is entitled to weekly 
 
            compensation benefits for temporary total disability from 
 
            August 21, 1987 through September 8, 1987, at the stipulated 
 
            rate of $165.46 per week.  Defendants have paid claimant 
 
            2.714 weeks of compensation at the stipulated rate and are 
 
            entitled to a credit.  Therefore, claimant takes nothing 
 
            further from these proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That claimant take nothing from the alleged injury on 
 
            November 20, 1986 filed in claim number 878950.
 
            
 
                 That claimant take nothing for the alleged injury of 
 
            December 27, 1986, filed in claim number 878958.
 
            
 
                 That claimant take nothing further for the injury of 
 
            August 20, 1987, filed in claim number 862194.
 
            
 
                 That defendant, Second Injury Fund of Iowa, is not 
 
            liable for any payments of said benefits.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency pursuant to rule 
 
            343 IAC 3.l.
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            340l Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
            Ms. Dean A. Lerner
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50; 1402.30; 1403.20;
 
                           1801; 2209; 3202
 
                           Filed April 11, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEAN L. BAILEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 878958,
 
                                          :          878950 & 862194
 
            KANE MILLER CORP.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INS. CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108.50; 1402.30; 1403.20; 1801; 2209; 3202
 
            Claimant alleges three separate injuries; November 20, 1986 
 
            to his right hand and arm; December 27, 1986 to his left 
 
            hand and arm; and a stab wound to his right leg on August 
 
            20, 1987; and/or a cumulative injury to his upper 
 
            extremities on January 13, 1987.  Claimant lost no time from 
 
            work due to his alleged upper extremity injuries.
 
            Claimant did not meet his burden of proof as to his upper 
 
            extremity injuries and therefore did not establish 
 
            entitlement to Second Injury Fund.  Claimant awarded 
 
            temporary total disability benefits due to stab wound.  Dr. 
 
            Walker's permanency ratings in June 1990, not entitled to 
 
            significant weight and consideration.