1803.1; 4000
 
                      Filed April 5, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS PERRYMAN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 880059
 
            UNIVERSAL RUNDLE CORP.,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Found claimant's injury was to his body as a whole and not 
 
            limited to his upper right extremity.
 
            Claimant is 32 years old and didn't finish the eleventh 
 
            grade.  All prior work history was in general labor jobs 
 
            requiring lifting 25 pounds or more.  Claimant incurred a 
 
            permanent restriction of no lifting over 15 pounds and 
 
            problems using his right arm.  Claimant is right handed.  
 
            Claimant has not been able to find any full-time work and 
 
            very limited restricted summer jobs.  Claimant awarded 60% 
 
            industrial disability.
 
            
 
            4000
 
            Twenty-five weeks of penalty benefits also awarded.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THOMAS PERRYMAN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 880059
 
            UNIVERSAL RUNDLE CORP.,       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on March 14, 1991, in 
 
            Ottumwa, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for additional healing period 
 
            benefits and permanent partial disability benefits as a 
 
            result of an alleged injury occurring on March 4, 1988.  The 
 
            record in the proceedings consists of the testimony of 
 
            claimant and Larry Christy; and joint exhibits 1 through 14.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's permanent disability is causally 
 
            connected to his March 4, 1988 injury;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 3.  Whether claimant's injury is to a scheduled member 
 
            or body as a whole; and,
 
            
 
                 4.  Whether claimant is entitled to 86.13 penalty 
 
            benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 32-year-old who completed the tenth grade 
 
            and part of the eleventh grade.  Claimant eventually 
 
            received his GED in June 1989.  Claimant referred to his 
 
            jobs he had prior to beginning work for defendant employer 
 
            in July 1987.  These prior jobs were basically in general 
 
            labor which required lifting 25 pounds or more on a regular 
 
            basis.
 
            
 
                 Claimant described his work at defendant employer, 
 
            which eventually involved spraying a gel coat finish on tubs 
 
            and spa molds.  This is done with a pressure hose for ten 
 
            hours a day.  Claimant indicated this job also involved 
 
            pulling the molds on a rail as he sprayed both sides and 
 
            sent them on their way.
 
            
 
                 On March 4, 1988, while pulling a tub mold to spray, a 
 
            safety latch came off and claimant put his right arm out to 
 
            prevent the mold from hitting him and this resulted in 
 
            claimant being thrown against the wall.  Claimant said he 
 
            finished the shift that day in which he had four to five 
 
            hours left.  Claimant was making $7.12 per hour at that 
 
            time.
 
            
 
                 Claimant requested to see the company doctor.  The 
 
            company would not let him and claimant went to work the next 
 
            day.  After claimant said his shoulder felt out of place and 
 
            he could not paint, and after several requests and over two 
 
            weeks later, defendant employer let claimant see D. Dale 
 
            Emerson, M.D., the company doctor.  He said the doctor 
 
            examined him and prescribed medicine but did not ask him to 
 
            move his arms around but only forward.  Claimant said he had 
 
            his work clothes on and the doctor never asked him to take 
 
            off his shirt so he could see his shoulder or where claimant 
 
            was having his pain.  Dr. Emerson told the claimant to stay 
 
            off work after having gone to him for several visits.  
 
            Claimant had some physical therapy but contends he was not 
 
            given enough time for the shoulder to heal.  Claimant wasn't 
 
            off work at first and claimant indicated the work was 
 
            aggravating his arm.  Claimant eventually was off work 
 
            several weeks and upon his return to work had pain and 
 
            swelling within one month.  Claimant was then pulled off the 
 
            spraying job and did several non-spraying jobs.  Claimant 
 
            contends these other jobs required him to use his right arm.
 
            
 
                 On Friday, September 16, 1988, Dr. Emerson gave 
 
            claimant a return-to-work release.  Claimant worked until 
 
            January 1989, when he was terminated.
 
            
 
                 Claimant related his firing resulted because claimant 
 
            missed two days of work due to being in court on two 
 
            consecutive Fridays.  Claimant could not recall having 
 
            missed any other days except when he was off due to his 
 
            injury.  Claimant contends he had permission to miss the two 
 
            days and they were approved.  Claimant first talked to 
 
            defendant employer and had a union steward accompany him.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant eventually filed a union grievance.  Claimant 
 
            contends he heard nothing except he received a letter which 
 
            indicated nothing could be done concerning the grievance.  
 
            He claimed he never received a reason for his termination.
 
            
 
                 Claimant eventually saw J.W. Brindley, M.D., an 
 
            orthopedic surgeon, who had claimant perform various 
 
            direction movements, exercises and pressure tests.  He said 
 
            the doctor described claimant's shoulder as winging and 
 
            referred claimant to a shoulder specialist in Iowa City.  
 
            Claimant said his shoulder wanted to pop out.  Claimant is 
 
            right handed.  Claimant indicated his pain now is no 
 
            different than his pain three years ago.  If he lifts 
 
            something he has a burning sensation when his shoulder pops 
 
            out.
 
            
 
                 Claimant testified he saw Peter D. Wirtz, M.D., a few 
 
            weeks ago and like Dr. Emerson, Dr. Wirtz never had claimant 
 
            take off his shirt.  Dr. Brindley and James V. Nepola, M.D., 
 
            are the only doctors who had claimant take off his shirt 
 
            when examining him.  Although claimant said he requested to 
 
            take his loose fitting shirt off so Dr. Wirtz could see 
 
            claimant's shoulder and injury area, Dr. Wirtz said it was 
 
            not necessary.  Claimant was not required to do any pressure 
 
            tests.
 
            
 
                 Claimant again saw Dr. Brindley two and one-half weeks 
 
            before the hearing and he again had claimant take off his 
 
            shirt and do the various tests again.  He said his shoulder 
 
            was still winging out.  Claimant obviously was surprised 
 
            that Dr. Emerson and Wirtz did not perform a sufficient 
 
            examination to try to determine in his opinion where and 
 
            what claimant's complaints were and visually observe the 
 
            area of the injury.  Claimant has had no physical therapy 
 
            since 1988.
 
            
 
                 Claimant related his job search in the nature of his 
 
            limited temporary jobs he did obtain.  These jobs lasted one 
 
            or two weeks in the summer of 1989, and in the summer of 
 
            1990 claimant worked for an asphalt company walking along 
 
            the paving machine.  Claimant also worked three weeks for 
 
            the Williams Pipeline Company looking for and sealing 
 
            pinholes in the line.  These jobs required no lifting or 
 
            pulling.  Claimant said he searched for other jobs and 
 
            called job service.  Claimant indicated he was paid $6.00 
 
            per hour for one of these jobs in the summer of 1989.  He 
 
            has had no success in obtaining a full-time job.
 
            
 
                 Claimant stated he enrolled in Indian Hills Community 
 
            College to be a machinist and was to pay for it through a 
 
            grant and vocational rehabilitation money.  Claimant related 
 
            he started school and then quit because his money to buy the 
 
            needed tools was stolen from his wife's purse around June 
 
            11, 1989, approximately two to three weeks after school 
 
            started.
 
            
 
                 Claimant said Dr. Nepola, from the University of Iowa, 
 
            told claimant to get more therapy but claimant had no money 
 
            to pay for it.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Larry Christy, defendant employer's office manager, 
 
            stated his several duties with defendant employer, one of 
 
            which involves contact with claimant's personnel file.  He 
 
            said he is not aware that a union grievance was ever filed 
 
            and he would usually know if there was a filing.  He 
 
            testified that no union person called him nor had claimant 
 
            ever told him of a grievance.
 
            
 
                 Christy said Dr. Emerson is the sole plant doctor.  He 
 
            related that claimant received all the benefits up to the 
 
            time Dr. Emerson returned claimant to full duty with the 
 
            restriction of no spraying.  This was on Friday, September 
 
            16, 1988.  He acknowledged claimant never had a warning 
 
            regarding his performance in claimant's file and claimant 
 
            was terminated due to his absence record and that the four 
 
            steps for termination were followed, including a verbal and 
 
            written warning before claimant was fired.  He emphasized 
 
            claimant was fired for his unexcused absences.  He indicated 
 
            that if the company had deviated from the process, there 
 
            would be a grievance from the union.  Christy said he knows 
 
            of no grievance procedure involving the claimant.
 
            
 
                 Christy said claimant has not returned to the company, 
 
            had not made any contact with him since claimant's discharge 
 
            nor had claimant requested to see a doctor other than the 
 
            company doctor, Dr. Emerson.
 
            
 
                 This witness was then shown three pages to review and 
 
            acknowledge his signature on the page but emphasized he 
 
            wasn't at the discharge meeting for the union and didn't 
 
            remember signing the papers.
 
            
 
                 Christy also acknowledged that defendant employer did 
 
            not fight the claimant's unemployment benefits request even 
 
            though attendance problems can be misconduct leading to 
 
            denial of unemployment benefits.
 
            
 
                 Peter D. Wirtz, M.D., an orthopedic surgeon, testified 
 
            by way of his deposition on February 15, 1981, that he saw 
 
            claimant for an evaluation on January 16, 1991, through a 
 
            referral by defendants' attorney.  He indicated he had all 
 
            the other doctor reports and notes at that time.  He related 
 
            claimant's history and the motion and position changes he 
 
            had claimant do during the examination.  He ruled out 
 
            winging in claimant's shoulder.  He described winging as an 
 
            alteration of the muscle that holds the shoulder blade to 
 
            the rib cage.
 
            
 
                 Dr. Wirtz testified the first indication of any winging 
 
            of the shoulder blade was in Dr. Brindley's August 15, 1989 
 
            note, seventeen months after claimant's alleged injury.  He 
 
            said the winging condition would have shown up much earlier 
 
            if it occurred in a March 4, 1988 injury.
 
            
 
                 The doctor concluded claimant's current loss of motion 
 
            and stiff rigid shoulder is not the result of a March 4, 
 
            1988 injury but that something had to have occurred prior to 
 
            Dr. Brindley's August 15, 1989 examination and after 
 
            claimant's musculoskeletal strain to his shoulders on March 
 
            4, 1988.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Wirtz said claimant's long thoracic nerve palsy 
 
            referred to by Dr. Brindley did not occur on March 4, 1988, 
 
            and that some other incident prior to August 15, 1988 caused 
 
            it.  He said the palsy symptoms are no longer there but the 
 
            restrictions of motion remain (Joint Exhibit 1, page 18).  
 
            Dr. Wirtz said this limitation is only to the right upper 
 
            extremity and the impairment is 8 percent.  The doctor 
 
            emphasized this impairment is not the result of claimant's 
 
            March 4, 1988 injury.  He related the long thoracic nerve 
 
            condition is not permanent in nature but the loss of motion 
 
            is probably permanent (Jt. Ex. 1, p. 21).
 
            
 
                 The doctor concluded claimant currently is only 
 
            suffering from a right upper extremity range of motion loss.
 
            
 
                 Dr. Wirtz acknowledges claimant at some time between 
 
            March 21, 1988 and January 16, 1991 was suffering from a 
 
            thoracic nerve palsy, but he didn't ask claimant if there 
 
            was any intervening incident other than claimant's March 4, 
 
            1988 injury that might have caused this palsy condition.
 
            
 
                 The undersigned has a hard time believing that a 
 
            competent doctor whose opinion was that claimant had an 
 
            intervening incident which the doctor believes caused 
 
            claimant's condition rather than a March 4, 1988 injury 
 
            didn't ask the claimant if there was an intervening incident 
 
            (Jt. Ex. 1, p. 22).
 
            
 
                 The undersigned is convinced from the record that 
 
            claimant had a shirt on at the time of his examination by 
 
            Dr. Wirtz.  From this agency's experience from time to time 
 
            with some medical personnel and the similarity of 
 
            questionable examinations, it is incomprehensible how 
 
            certain medical opinions can be arrived at in the manner in 
 
            which an examination is done.
 
            
 
                 Of interest is Dr. Emerson's records (Jt. Ex. 6, p. 97) 
 
            in which the claimant apparently could not get time off to 
 
            go to therapy.  Maybe a person would recover sooner and more 
 
            fully if proper attention is given in the beginning (Jt. Ex. 
 
            9, p. 126).  On Friday, September 16, 1988, Dr. Emerson said 
 
            claimant could return to work with full duty except no 
 
            spraying (Jt. Ex. 6, pp. 105 and 107).  He also indicated no 
 
            disability.  In looking at the medical records of Dr. 
 
            Emerson, it is hard to believe at that stage of claimant's 
 
            treatment and the restrictions he placed on claimant that he 
 
            could come to that conclusion.  If anything, it appears 
 
            premature and the explanation could be that he was a company 
 
            doctor.  This agency from time to time sees a company doctor 
 
            more interested in allegiance to the company who refers him 
 
            the patient rather than to the patient to whom he owes an 
 
            unbiased obligation once he assumes the patient's care.
 
            
 
                 On June 3, 1988, Marc E. Hines, M.D., suggested 
 
            claimant be let off work one to two weeks to give the 
 
            shoulder time to heal.  He also indicated that trying this 
 
            may decrease claimant having continuing difficulties with 
 
            his shoulder and arm (Jt. Ex. 9, pp. 126 and 127).  
 
            Obviously, the defendant employer did not go along with 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            these recommendations.  Dr. Emerson finally gave claimant 
 
            four days off after considerable urging (Jt. Ex. 9, p. 128).
 
            
 
                 On June 1, 1989, Dr. Hines noted claimant still 
 
            continues to have shoulder pain and he raised again the fact 
 
            that claimant should have had adequate time off but only 
 
            received four days.  Therefore, he never had time for an 
 
            attempt at complete resolution of claimant's problems (Jt. 
 
            Ex. 9, p. 130).
 
            
 
                 It appears from the record that claimant was not 
 
            getting the company treatment he should and that claimant's 
 
            problems are becoming worse due to lack of care by company 
 
            doctors.
 
            
 
                 In claimant's medical records there has also been 
 
            reference at times to carpal tunnel syndrome (right).  It 
 
            appears at one time, at least, one doctor thought this might 
 
            be the cause of claimant's shoulder problems.
 
            
 
                 On November 9, 1989, Dr. Hines wrote that he was able 
 
            to identify claimant as having carpal tunnel syndrome and 
 
            right long thoracic nerve involvement.  He also causally 
 
            connected these problems to claimant's March 4, 1988 work 
 
            injury.  He opined a combined 21 percent permanent 
 
            impairment of claimant's upper extremity (Jt. Ex. 9, pp. 
 
            135-137).
 
            
 
                 As of June 7, 1991, Dr. Hines has not changed his 
 
            opinion on impairment.  He has referred to a February 18, 
 
            1988 injury date.  The undersigned believes and so finds 
 
            that the injury referred to is, in fact, the one stipulated 
 
            to by the parties, namely, March 4, 1988 (Jt. Ex. 9, pp. 142 
 
            and 143).  Dr. Hines also agrees with the restrictions Dr. 
 
            Brindley gave claimant and that they are his current 
 
            restrictions.
 
            
 
                 On October 17, 1989, Michael L. Pogel, M.D., also 
 
            agreed claimant had a long thoracic nerve palsy.  He also 
 
            noted winging of claimant's scapula and muscle spasms in the 
 
            supraclavicular area (Jt. Ex. 9, p. 148).
 
            
 
                 On August 21, 1990, Dr. Brindley opined claimant had a 
 
            right long thoracic nerve palsy with parascapular pain which 
 
            appears myofascial in origin.  He also observed obvious 
 
            winging of claimant's scapula (Jt. Ex. 9, p. 155).  He also 
 
            saw this winging on January 31, 1990 and April 18, 1990 (Jt. 
 
            Ex. 5, p. 90).
 
            
 
                 It appears the permanent restrictions claimant has to 
 
            which Dr. Hines agrees are in Dr. Brindley's report (Dep. 
 
            Ex. D-3 of Jt. Ex. 1 and Jt. Ex. 4, p. 91), namely:  
 
            "...could not lift or carry over 15 pounds and should not 
 
            lift frequently....I think his main problem would be using 
 
            his right arm."  The greater weight of medical evidence 
 
            shows claimant incurred a long right nerve thoracic palsy on 
 
            March 4, 1988 and that this injury arose out of and in the 
 
            course of claimant's employment and the undersigned so 
 
            finds.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 The greater weight of evidence also shows claimant to 
 
            have an injury to his upper extremity that also goes into 
 
            and affects his shoulder and body as a whole, all of which 
 
            was caused by claimant's March 4, 1988 work injury.
 
            
 
                 The undersigned is appalled by the care, or more 
 
            suitable, lack of care by company doctors.  It would appear 
 
            that if more and competent attention was given to claimant's 
 
            condition or if claimant was put first as to physical 
 
            therapy treatment rather than the employer rushing him back 
 
            to work, claimant would have been given better care and 
 
            opportunity to be treated and cured rather than his current 
 
            condition.  Fortunately, the claimant sought other medical 
 
            treatment but it appears a permanent condition cannot be 
 
            avoided.  It is not surprising to see a late-in-the-game 
 
            evaluation by Dr. Wirtz whereby he finds nothing wrong and 
 
            assumes things without asking questions or doing certain 
 
            tests or performing a properexamination.  It is no 
 
            coincidence, as unfortunate as it may be, that this agency 
 
            sees similar circumstances from time to time.  Medical 
 
            credibility is as important, if not more important at times, 
 
            than the credibility of the nonprofessional.
 
            
 
                 When it comes to 86.13 penalty benefits, defendants' 
 
            actions and credibility are important.  This agency 
 
            experiences more problems with certain participants than 
 
            others when it comes to how a claimant is treated.
 
            
 
                 Claimant is young and yet he has a severe permanent 
 
            disability due to the fact that his basic employment and 
 
            transferable skills are in the general manual labor industry 
 
            requiring lifting 25 pounds or more.  Claimant has a very 
 
            severe lifting restriction and this causes claimant to have 
 
            a substantial loss of earning capacity.
 
            
 
                 Claimant is right handed and basically the doctor 
 
            indicates claimant's main problem is using his right arm.  
 
            He should not lift over 15 pounds.
 
            
 
                 Claimant has made sincere searches for work.  He 
 
            recently obtained a GED since his injury.  He has a 
 
            permanent impairment.  Claimant has no pre-March 1988 injury 
 
            history that affects him today.  He began to start higher 
 
            education but his grant money was stolen.  The undersigned 
 
            questions the manner of claimant's termination from 
 
            employment.  It appears defendants were looking closely for 
 
            any excuse.  Although it is not clear to the undersigned 
 
            what may or may not have happened in the grievance process, 
 
            if any, defendants' witness was certain nothing was done and 
 
            yet was shown documents he signed that he never recalled.  
 
            The undersigned was not given the benefit of having those 
 
            papers as exhibits.
 
            
 
                 Taking into consideration all those criteria not 
 
            limited to those specifically referred to above in 
 
            determining a person's industrial disability, the 
 
            undersigned finds claimant has a 60 percent industrial 
 
            disability.  The undersigned finds that claimant was off 
 
            work for at least 11.286 weeks to which the parties 
 
            stipulated that there would be credit for healing period or 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            temporary total disability.  The evidence is clear that 
 
            claimant was released to work by at least one doctor on 
 
            Friday, September 16, 1988, and that claimant did, in fact, 
 
            return to work on Monday, September 19, 1988.  The deputy's 
 
            notes taken at the time the parties were trying to prepare 
 
            the prehearing report indicate that the parties agreed 
 
            claimant was off March 5, 1988 to and including September 
 
            18, 1988, and then indicated the 11.286 weeks were paid.  
 
            This has to be in error as to the amount of time as the 
 
            evidence is clear that claimant returned back to work at 
 
            defendant employer's insistence until his request for more 
 
            sincere medical care was finally honored several days 
 
            thereafter.  The undersigned cannot tell from the evidence 
 
            how many days other than the stipulated 11.286 weeks that 
 
            claimant was off during the healing period.  The claimant 
 
            has that burden so, if, in fact, there are more days, there 
 
            is nothing specific in the records to indicate anything more 
 
            than 11.286.  Therefore, the undersigned finds that 
 
            claimant's healing period was for a period of 11.286 weeks 
 
            ending with and including September 18, 1988.
 
            
 
                 As to the issue of 86.13 penalty benefits, defendants 
 
            obviously were only listening to Dr. Emerson, whose "care" 
 
            of claimant I have previously addressed.  Then defendants 
 
            sent claimant to Dr. Wirtz in January 1991, two months 
 
            before the hearing.  He affirmed what defendants were 
 
            wanting to hear.  The undersigned has a difficult time 
 
            understanding the defendants' denial of any permanent 
 
            partial disability benefits under the record of this case, 
 
            at least prior to January 16, 1991.  Defendants' actions may 
 
            have been given more credence had they attempted to 
 
            successfully or credibly discredit the other doctors 
 
            claimant went to other than Dr. Emerson, although the odds 
 
            are Dr. Wirtz would have taken the same position.  The under
 
            signed finds that defendants shall pay claimant 25 weeks of 
 
            86.13 penalty benefits based on an unreasonable delay of 
 
            payments of permanent partial disability benefits.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 4, 
 
            1988 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 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitled claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily v. Pooley Lumber Co., 233 Iowa  
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton, 253 Iowa 285, 110 N.W.2d 660; Dailey, 
 
            233 Iowa 758, 10 N.W.2d 569.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton, 253 Iowa 285, 110 N.W.2d 
 
            660.
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of 
 
            
 
                 the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 The mere fact that the rating pertains to a scheduled 
 
            member does not mean the disability is restricted to a 
 
            schedule.  Pullen v. Brown & Lambrecht Earthmoving, 
 
            Incorporated, II Iowa Industrial Commissioner Reports 308 
 
            (Appeal Decision 1982).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.34(2) provides that compensation 
 
            for permanent partial disability shall begin at the 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2)(u) provides that compensation for a nonscheduled or 
 
            body as a whole injury shall be paid in relation to 500 
 
            weeks and the disability bears to the body as a whole.
 
            
 
                 Iowa Code section 86.13 provides, in part:
 
            
 
                   If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's March 4, 1988 work injury caused claimant to 
 
            incur a healing period amounting to 11.286 weeks and which 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            period ended up to and including September 18, 1988.
 
            
 
                 Claimant's March 4, 1988 work injury caused claimant to 
 
            incur permanent impairment and restrictions of no lifting 
 
            over 15 pounds and claimant may have problems in using his 
 
            right arm.
 
            
 
                 Claimant's March 4, 1988 work injury caused claimant to 
 
            incur a 60 percent industrial disability.
 
            
 
                 Defendants were unreasonable in delaying permanent 
 
            partial disability benefits.  Defendants are obligated to 
 
            the claimant for 25 weeks of 86.13 penalty benefits at the 
 
            rate of $209.43.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred nine and 43/100 dollars 
 
            ($209.43) for the period of eleven point two eight six 
 
            (11.286) weeks for the period claimant missed work, which 
 
            healing period ended up to and including September 18, 1988.
 
            
 
                 That defendants shall pay unto claimant three hundred 
 
            (300) weeks of permanent partial disability benefits at the 
 
            rate of two hundred nine and 43/100 dollars ($209.43) 
 
            beginning September 19, 1988.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have paid 
 
            eleven point two eight six (11.286) weeks of healing period 
 
            benefits.
 
            
 
                 That claimant shall pay defendants twenty-five (25) 
 
            additional weeks of benefits under the provisions of 86.13 
 
            at the rate of two hundred nine and 43/100 dollars 
 
            ($209.43).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            Mr H Edwin Detlie
 
            Attorney at Law
 
            114 N Market St
 
            Ottumwa IA 52501
 
            
 
            Mr Walter F Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
		                      :
 
            SCHLENA A. DOWELL, 	      :
 
		                      :
 
                 Claimant, 	      :
 
 		                      :
 
 		            vs.       :
 
                 		      :      File No. 880145
 
            EDWIN WAGLER, d/b/a ED'S  :
 
            SUPER VALU,    	      :        A P P E A L
 
                      		      :        
 
                 Employer, 	      :      D E C I S I O N
 
                      		      :
 
		            and       :
 
                		      :
 
            UNITED FIRE & CASUALTY    :
 
            COMPANY,  		      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed July 26, 1991 is affirmed and is adopted as the final 
 
            agency action in this case, with the following 
 
            modifications:
 
            Claimant requests that a disputed medical bill of $110 be 
 
            ordered paid by defendants.  (See Joint Exhibit 4)  Claimant 
 
            testified the bill was for treatment of the phantom pain 
 
            associated with the work injury to the right arm.  Claimant 
 
            has the burden of proving entitlement to payment for medical 
 
            services.  Claimant is competent to testify that treatment 
 
            was necessary for treatment related to the work injury.  
 
            Claimant's testimony is unrefuted.  The bill in question was 
 
            related to treatment of claimant's work injury and should be 
 
            paid by defendants.
 
            Claimant argues that the deposition of Marilyn Holland 
 
            should be considered.  Claimant is correct that the 
 
            deposition was part of the joint exhibits (Joint Exhibit 3).  
 
            It appears defendants agree in their appeal brief that 
 
            deposition should be considered.  The deposition of Marilyn 
 
            Holland is in the record and has been considered on appeal.  
 
            (It should be noted that the confusion on the part of the 
 
            deputy, if any, could have been avoided if the parties had 
 
            realized that the deposition in question was one of the 
 
            joint exhibits as well as an apparent separate proposed 
 
            exhibit by the defendants and had taken the proper steps to 
 
            avoid duplication.)
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant next asks that deposition costs of Dr. Hines, 
 
            billed at $675 (Joint Exhibit 5) be ordered paid.  Costs are 
 
            taxed pursuant to rule 343 IAC 4.33) which provides that 
 
            "the costs of doctors' and practitioners' deposition 
 
            testimony, provided that said costs do not exceed the 
 
            amounts provided by Iowa Code sections 622.69 and 622.72."  
 
            Iowa Code section 622.72 provides a maximum of $150.  
 
            Therefore, the costs assessed against the defendants by the 
 
            deputy shall be limited to $150 for Dr. Hines' deposition.  
 
            Costs are taxed pursuant to rule 343 IAC 4.33.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. W. McGrath
 
            Attorney at Law
 
            4th & Dodge
 
            Keosauqua, Iowa 52565
 
            
 
            Mr. John C. Stevens
 
            Attorney at Law
 
            122 East Second St.
 
            P.O. Box 748
 
            Muscatine, Iowa 52761
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803.1; 5-1402.60; 5-2907
 
            Filed November 26, 1991
 
            Byron K. Orton
 
            PJL
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
		                      :
 
            SCHLENA A. DOWELL, 	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No. 880145
 
            EDWIN WAGLER, d/b/a ED'S  :
 
            SUPER VALU,    	      :        A P P E A L
 
                      		      :        
 
                 Employer, 	      :      D E C I S I O N
 
                      		      :
 
		            and       :
 
                		      :
 
            UNITED FIRE & CASUALTY    :
 
            COMPANY,  		      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803.1
 
            
 
                 Deputy affirmed on appeal that phantom pain from an 
 
            amputation of the arm affected only the arm.  The injury was 
 
            a scheduled member injury.
 
            
 
            5-1402.60
 
            Claimant offered testimony that a disputed medical bill was 
 
            related to treatment of the work injury.  Claimant's 
 
            testimony was unrefuted and the medical bill was allowed.
 
            
 
            5-2907
 
            Costs of doctor's deposition limited to maximum of $150 per 
 
            rule 343 IAC 4.33 and Iowa Code section 622.72.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SCHLENA A. DOWELL,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 880145
 
            EDWIN WAGLER, d/b/a ED'S      :
 
            SUPER VALU,                   :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Schlena 
 
            A. Dowell, claimant, against Edwin Wagler, d/b/a Ed's Super 
 
            Valu, employer, (hereinafter referred to as Ed's), and 
 
            United Fire & Casualty Company, insurance carrier, 
 
            defendants, for workers' compensation benefits as a result 
 
            of an injury which occurred on March 17, 1988.  On May 9, 
 
            1991, a hearing was held at Burlington, Iowa on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of the hearing.
 
            
 
                 The evidence in the case consists of joint exhibits 
 
            1-6; and, testimony from the claimant.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and the hearing 
 
            assignment order, the parties presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant is entitled to additional 
 
            permanent partial or permanent total disability benefits; 
 
            and,
 
            
 
                 2.  Whether claimant is entitled to medical benefits 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                    
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preliminary matters
 
            
 
                 When the undersigned arrived at the hearing, she was 
 
            presented with claimant's combined motion to strike and 
 
            motion in limine regarding the defendants' witness list.
 
            
 
                 The hearing assignment order from this agency requires, 
 
            among other things:
 
            
 
                    7.  Witness and Exhibit Lists.  A list of all 
 
                 witnesses to be called at the hearing and a list 
 
                 of all proposed exhibits to be offered into 
 
                 evidence at the hearing .......... shall be served 
 
                 upon opposing parties no later than fifteen (15) 
 
                 days prior to the date of hearing.
 
            
 
                 Defendants served their witness list on the claimant on 
 
            May 3, 1991.  
 
            
 
                 It has been a long-standing rule that failure to comply 
 
            with paragraph 7 of the hearing assignment order will result 
 
            in exclusion of those witnesses or exhibits on a 
 
            delinquently filed list.  As a result, defendants have been 
 
            excluded from calling witnesses for failure to comply with a 
 
            prior order from the agency.  Specifically, the deposition 
 
            of Maurice Schnell, M.D., and Marilyn Holland, were not 
 
            considered as part of the evidence in this case.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Schlena Dowell, was 23 years old at the time 
 
            of the hearing.  She is a graduate of Mediapolis Community 
 
            High School, and attended Hiles-Anderson College in Crown 
 
            Point, Indiana for one year.  In 1988, she received a nurse 
 
            aide certification from Kirkwood Community College in Cedar 
 
            Rapids, Iowa.  Currently, claimant is attending the 
 
            University of Iowa to earn a degree as a radiological 
 
            technologist.
 
            
 
                 Claimant sustained a traumatic work related injury on 
 
            March 17, 1988.  While she was working at Ed's, claimant was 
 
            putting meat through meat grinder, when her right hand and 
 
            arm became caught in the grinder.  As a result, her right 
 
            arm was amputated at the elbow.
 
            
 
                 Due to the loss, claimant was given a 90 percent 
 
            functional impairment rating of the upper extremity, (Joint 
 
            Exhibit 1F, Page 2.3), and, is currently being paid 
 
            permanent partial disability benefits.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The threshold issue to be addressed is whether claimant 
 
            sustained an injury which extends to the body as a whole.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the employment.  Section 85.3(1).
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 Claimant argues that as a result of the amputation of 
 
            her right arm, she sustained an injury to her central 
 
            nervous system.  Furthermore, she proposes that this injury 
 
            translates into a body as a whole injury, and should be 
 
            evaluated industrially.
 
            
 
                 Defendants' stand is that claimant sustained only a 
 
            scheduled member injury, and is limited to that amount of 
 
            compensation which is provided for under Iowa Code section 
 
            85.34(2)(m), which provides in pertinent part:
 
            
 
                 Compensation for permanent partial disability 
 
                 shall begin at the termination of the healing 
 
                 period . . . . For all cases of permanent partial 
 
                 disability compensation shall be paid as follows:
 
            
 
                    ....
 
            
 
                    m.  The loss of two-thirds of that part of an 
 
                 arm between the shoulder joint and the elbow joint 
 
                 shall equal the loss of an arm and the 
 
                 compensation therefor shall be weekly compensation 
 
                 during two hundred fifty weeks.
 
            
 
                 Subsequent to the amputation, claimant has been 
 
            suffering from a condition known as "phantom limb pain."  
 
            Claimant was hospitalized from March 17, 1988 through March 
 
            26, 1988.  (Jt. Ex. 1, A, Pages 1.2-1.3)  This condition was 
 
            first diagnosed on March 20, 1988, several days after the 
 
            amputation.  (Jt. Ex. 1, E, P. 1.13)
 
            
 
                 Claimant was treated at the University of Iowa 
 
            Hospitals and Clinics Pain Center on several occasions from 
 
            June 1988 through December 1988; and, again from August 3, 
 
            1989 through December 20, 1989.  (Jt. Ex. 1, F, PP. 2-2.12)  
 
            During this time, she underwent drug therapies, physical 
 
            therapy, and other types of treatment designed to control 
 
            the phantom limb pain.
 
            
 
                 Eventually, on February 12, 1990 and again on February 
 
            28, 1991, claimant was evaluated for her phantom limb pain 
 
            by Marc Hines, M.D., a specialist in neurology.  On her 
 
            first visit, Dr. Hines noted that claimant was suffering 
 
            from a mild amount of depression.  According to Dr. Hines, 
 
            claimant had phantom pain which was described as a "burning, 
 
            throbbing pain, with the fingers feeling smashed."  The pain 
 
            was constant.  (Jt. Ex. 1, B, PP. 2-2.1)  On February 28, 
 
            1991, Dr. Hines associated claimant's phantom pain with 
 
            "definite central processing problem, and therefore a 
 
            central pain problem."  As such, he equated the phantom pain 
 
            with a disability to the body as a whole.  (Jt. Ex. 1, B, 
 
            PP. 2.2-2.3)
 
            
 
                 Dr. Hines gave a more detailed description of phantom 
 
            pain, and the process by which it develops in his deposition 
 
            dated March 6, 1991.  Specifically, Dr. Hines stated that 
 
            due to the amputation and the chronic pain syndrome which is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            related to the central nervous system, claimant has 
 
            sustained a 67 percent impairment to the whole person.  (Jt. 
 
            Ex. 2, P. 18)  Furthermore, Dr. Hines stated that severed 
 
            nerves in an arm affects the central nervous system and 
 
            causes chronic pain, which is, in fact, phantom pain.  (Jt. 
 
            Ex. 2, P. 19).  This feeling of pain is limited to that part 
 
            of the arm which was injured and subsequently amputated.
 
            
 
                 There is no evidence in the record which suggests that 
 
            claimant is a malinger, or that she is faking the symptoms 
 
            and pain she describes.  And, she is to be commended for the 
 
            efforts she has put forth both in the recovery stages of 
 
            this tragic accident, and for her motivated efforts to 
 
            regain a sense of normalcy in her life.  It appears to be 
 
            little dispute that claimant developed phantom pain 
 
            following her injury, a condition which Dr. Hines has 
 
            characterized as a central nervous system dysfunction.
 
            
 
                 The overall effect of claimant's disability is still 
 
            limited to the loss of her right arm, thereby precluding an 
 
            assessment of her industrial disability.  It is the situs of 
 
            the disability which governs the imposition of the schedule.  
 
            See, Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 
 
            569 (1943).  There has been no structural damage to any 
 
            other part of claimant's body.  Absent a showing by claimant 
 
            that her capacity has been affected negatively by an 
 
            extension of the injury to some other part of the body, she 
 
            is limited to a scheduled member loss.  See, Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983).
 
            
 
                 Claimant has failed to prove that her scheduled member 
 
            injury extends into the body as a whole.  It is concluded 
 
            claimant is not entitled to permanent partial disability 
 
            benefits as a result of the phantom pain difficulties 
 
            stemming form her March 17, 1988 injury.  Claimant's right 
 
            upper extremity injury is a scheduled member disability such 
 
            that the legislature did not contemplate that she could 
 
            collect benefits based on a loss of earning capacity.  
 
            Therefore, claimant is not entitled to permanent partial 
 
            disability benefits beyond that amount due for her 
 
            impairment of 90 percent of the right upper extremity.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 Iowa Workers' Compensation Laws provide in pertinent 
 
            part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 prosthetic devices.
 
            
 
            (Iowa Code section 85.27)
 
            
 
                 As claimant as sustained a compensable injury, she is 
 
            awarded medical benefits for the treatment of both her right 
 
            upper extremity, and any additional medical treatment or 
 
            evaluation received due to the impairment incurred due to 
 
            the work-related disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for two hundred twenty-five (225) weeks 
 
            at the rate of seventy-four and 75/100 dollars ($74.75) 
 
            commencing on December 2, 1988.
 
            
 
                 That defendants shall pay medical costs incurred by 
 
            claimant for treatment of her injuries pursuant to Iowa Code 
 
            section 85.27.
 
            
 
                 That defendants shall pay the costs of this proceeding.
 
            
 
                 That defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr J W McGrath
 
            Attorney at Law
 
            Fourth & Dodge Streets
 
            PO Box 453
 
            Keosauqua Iowa 52565
 
            
 
            Mr John C Stevens
 
            Attorney at Law
 
            122 East 2nd Street
 
            PO Box 748
 
            Muscatine Iowa 52761
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803.1
 
                      Filed July 26, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SCHLENA A. DOWELL,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 880145
 
            EDWIN WAGLER, d/b/a ED'S :
 
            SUPER VALU,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            UNITED FIRE & CASAULTY   :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Claimant was injured on the job when her right hand and arm 
 
            became caught in a meat grinder.  Eventually, the extremity 
 
            was amputated at the elbow.
 
            Claimant advanced that the "phantom limb pain" from which 
 
            she suffers is due to a central nervous system defect caused 
 
            by the accident.  She claimed an industrial disability.
 
            The greater weight of the evidence shows that although the 
 
            nerves in the arm are certainly affected by the amputation, 
 
            the disability was still located in the right upper 
 
            extremity.
 
            Defendants are currently paying 90 percent PPD benefits.
 
            
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SCHLENA A. DOWELL,            :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 880145
 
         EDWIN WAGLER d/b/a ED'S       :
 
         SUPER VALU,                   :         D E C I S I O N
 
                                       :
 
              Employer,                :               O N
 
                                       :
 
         and                           :           R E M A N D
 
                                       :
 
         UNITED FIRE & CASUALTY        :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                                STATEMENT OF CASE
 
         
 
              This case is on remand from the Court of Appeals.  In its 
 
         decision, Dowell v. Wagler, 509 N.W.2d 134, 138 (Iowa App. 1993), 
 
         the Court remanded this case to the industrial commissioner for 
 
         appropriate fact findings and application of the statute 
 
         consistent with its opinion and the guidelines given in Simbro v. 
 
         DeLong's Sportswear, 332 N.W.2d 886 (1983); McSpadden v. Big Ben 
 
         Coal Co., 288 N.W.2d 181 (Iowa 1980); and Dailey v. Pooley Lumber 
 
         Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
                                      ISSUES
 
         
 
              The issues on remand are whether claimant's phantom limb 
 
         pain has caused a permanent disability and, if so, the extent of 
 
         claimant's industrial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Claimant, Schlena Dowell, was born June 15, 1967.  She 
 
         graduated from high school and attended Hiles-Anderson College in 
 
         Crown Point, Indiana for one year.  Prior to her employment with 
 
         Edwin Wagler d/b/a Ed's Super Valu (hereinafter Ed's), she had 
 
         had jobs as a cook, a waitress, in a bakery, and cleaning houses 
 
         (Transcript, pages 8-12).  She worked approximately 20 - 30 hours 
 
         a week for Ed's earning approximately $3.35 - $3.40 per hour (Tr. 
 
         p. 24).  On March 17, 1988, while working at Ed's, claimant was 
 
         putting meat through a meat grinder when her right hand and arm 
 
         became caught in the grinder.  Her right arm was amputated just 
 
         below the elbow.  She was treated at the Washington County 
 
         Hospital from March 17, 1988 to March 26, 1988 for the amputation 
 
         (Joint Exhibit 1e, pp. 1.41-1.42).  Symptoms of phantom limb pain 
 
         were noted on March 20, 1988 (Jt. Ex. 1e, p. 1.13).  In an 
 
         attempt to get a good result with a prosthesis, prolonged bone 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         stumps were trimmed and shortened on August 22, 1988 (Jt. Ex. le, 
 
         pp. 1.43-1.44, 1.55).  On December 5, 1988 Curtis M. Steyers, 
 
         M.D., Division of Hand and Microsurgery at the University of 
 
         Iowa, rated claimant as having a 90 percent permanent partial 
 
         impairment of the right upper extremity (Jt. Ex. 1f, p. 2.3).  On 
 
         May 30, 1989 a physical therapist diagnosed claimant as having 
 
         phantom pain in the right upper extremity (Jt. Ex. 1e, p. 1.57).  
 
         On August 3, 1989 Dianne Byerly, M.D., and Winston Barcellos, 
 
         M.D., at the University of Iowa Hospitals and Clinics, also gave 
 
         their impression of phantom limb pain (Jt. Ex. 1f, p. 2.4).
 
         
 
              Claimant was examined by Marc Hines, M.D., a neurologist, on 
 
         February 12, 1990 (Jt. Ex. 1b, pp. 2-2.1 and Jt. Ex. 2, p. 3).  
 
         Dr. Hines described phantom pain as the experience of pain in an 
 
         extremity that no longer exists or in parts of an extremity that 
 
         no longer exist (Jt. Ex. 2, p. 7).  He estimated that phantom 
 
         limb symptoms occur in less than ten percent of individuals 
 
         having amputations and half of these have phantom limb symptoms 
 
         with pain (Jt. Ex. 2, p. 34).  He indicated claimant's situation 
 
         was a central pain processing problem in which spontaneous pain 
 
         has occurred as a result of the chronic overstimulation and the 
 
         absence of the normal control mechanism (Jt. Ex. 1b, pp. 2.2-2.3 
 
         and Jt. Ex. 2, p. 10).  He stated that there was no realistic 
 
         guarantee that medication would work to control the pain syndrome 
 
         (Jt. Ex. 2, p. 14).  He described claimant's long-term prognosis 
 
         as a chronic condition that would rarely become better (Jt. Ex. 
 
         2, p. 15).  Dr. Hines rated claimant as having a 67 percent 
 
         impairment to the whole person under the second edition of the 
 
         AMA Guides to the Evaluation of Permanent Impairment.  That 
 
         rating was a combination of the impairment from the amputation 
 
         and the impairment of the nervous system (Jt. Ex. 2, pp. 16 - 
 
         18).  Dr. Hines noted (Jt. Ex. 1b, p. 2.2) and claimant described 
 
         (Tr. pp. 27 - 28) the presence of both stump pain and the phantom 
 
         limb pain.
 
         
 
              Claimant testified that shots and medications did not help 
 
         the phantom pain (Tr. pp. 15 - 16).  She described the phantom 
 
         pain as "always there" (Tr. p. 32, line 8 and p. 34).  She 
 
         indicated that initially the pain was "telescoping" i.e. moving 
 
         closer to the stump but it had remained in the same place for the 
 
         two years prior to the hearing (Tr. p. 35).  She stated that she 
 
         worked around the phantom pain (Tr. p. 32).
 
         
 
              After the injury claimant enrolled at Kirkwood Community 
 
         College and received her nurses' aide certification in 1988 (Tr. 
 
         p. 6).  After receiving the nurses' aide certification she was 
 
         employed as a nurses' aide working 40 hours per week with 
 
         occasional overtime and was paid $4.20 per hour.  In 1989, 
 
         claimant began attending the University of Iowa to become a 
 
         radiological technologist (Tr. pp. 6 - 7).  In this training she 
 
         has had grades of A minus, B plus (Tr. p. 7 and Jt. Ex. 3, pp. 13 
 
         - 14).  Claimant is in the top 20 percent of her class (Tr. p. 25 
 
         and Jt. Ex. 3, p. 14).  Marilyn Hollard, director of the 
 
         radiologic technology program at the University of Iowa Hospitals 
 
         and Clinics, indicated that there is a demand for graduates from 
 
         that program and that graduates earn a minimum of $9.50 per hour 
 
         (Jt. Ex. 3, p. 23).  Claimant was to graduate from the program in 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         June 1991 (Tr. p. 7).
 
         
 
              Claimant described activities that she cannot perform 
 
         following her injury.  These included peeling potatoes or 
 
         carrots, driving a car with a standard transmission, riding a 
 
         motorcycle, playing tennis, and grinding meat (Tr. pp. 20 - 22).  
 
         She has switched from being right-hand dominant to using her left 
 
         hand (Tr. p. 21).  She indicated that the owner of Ed's had been 
 
         supportive and had never refused to re-employ her (Tr. p. 22).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The first issue to be resolved is whether claimant's phantom 
 
         limb pain has caused a permanent disability.
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 
         disability on which the claim is based.  A cause is proximate if 
 
         it is a substantial factor in bringing about the result; it need 
 
         not be the only cause.  A preponderance of the evidence exists 
 
         when the causal connection is probable rather than merely 
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 
 
         1974).
 
         
 
              Claimant suffers from phantom pain syndrome.  See Dowell v. 
 
         Wagler, supra at 509 N.W.2d 136.  This determination is supported 
 
         by claimant's testimony and the medical diagnosis of Drs. Byerly, 
 
         Barcellos, and Hines as well as notes from Washington County 
 
         Hospitals.  Claimant's testimony is that the pain is "always 
 
         there."  Dr. Hines describes claimant's condition as chronic.  
 
         Part of Dr. Hines' impairment rating is attributable to an 
 
         impairment of the nervous system.  Claimant's phantom limb pain 
 
         syndrome is permanent.  Claimant described having to "work 
 
         through" the pain.  Dr. Steyers' impairment rating is limited to 
 
         the upper extremity and conversion of that impairment to a body 
 
         of the whole rating (See for example table 3 of the AMA Guides, 
 
         3rd Edition Revised and 4th Edition).  However, Dr. Hines has 
 
         given an impairment rating based upon an impairment to the 
 
         nervous system.  Claimant's phantom limb pain is disabling as it 
 
         interferes with claimant's ability to function.  Claimant's 
 
         phantom limb pain has caused a permanent disability.
 
         
 
              The second issue to be resolved is the extent of claimant's 
 
         industrial disability.
 
         
 
              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 the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the 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.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  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.  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 as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              When a disability is compensable under Iowa Code section 
 
         85.34(2)(u) as an unscheduled disability, the functional loss to 
 
         the body as a whole is one of the factors used to determine 
 
         industrial disability.  The Iowa Supreme Court in Mortimer v. 
 
         Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993) clearly recognized 
 
         that permanent partial disabilities are either scheduled or 
 
         unscheduled and that unscheduled disabilities are determined by 
 
         the industrial method, citing to Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886 (1983).  This was again recognized in Honeywell v. 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         Allen Drilling, No. 322/92-1228, Iowa Supreme Court filed October 
 
         20, 1993.  Furthermore, the Court of Appeals in remanding this 
 
         case clearly indicated that the guidelines of Simbro, Mcspadden, 
 
         and Dailey should be used.  See Dowell v. Wagler, 509 N.W.2d at 
 
         page 138.  Scheduled disabilities are evaluated on a functional 
 
         basis and unscheduled losses on an industrial basis.  Simbro v. 
 
         DeLong's Sportswear, 332 N.W.2d at page 888.  It would be 
 
         inconsistent with Honeywell, Mortimer, Simbro and the court's 
 
         directive in this case, as well as long-standing agency practice 
 
         (see for example McEntire v. Super Value Stores, File No. 776428, 
 
         Appeal Decision January 31, 1991) to interpret the language used 
 
         by the court of appeals in this case to mean that the functional 
 
         loss is a floor for determining industrial disability.  
 
         Functional loss is one of the factors to be used in determining 
 
         industrial disability which may be greater than, less than or 
 
         equal to the functional loss.
 
         
 
              In this case, claimant was 20 years old when the injury 
 
         occurred.  The injury resulted in a severe functional loss.  That 
 
         functional loss includes 90 percent loss of the right upper 
 
         extremity and additional functional loss of the nervous system.  
 
         She is highly motivated.  She is a high school graduate who has 
 
         taken training after completion of high school.  Her prospects 
 
         for retraining are excellent as demonstrated by her near 
 
         completion of the radiological technologist training with grades 
 
         in the upper 20 percent of her class.  Her prior work experience 
 
         was limited because of her age but it involved primarily light 
 
         manual labor at near minimum wage.  Her employer offered to 
 
         rehire her.
 
         
 
              Her actual post injury earnings are limited but were 
 
         slightly higher than her pre-injury earnings ($4.20 per hour 
 
         versus $3.40 per hour).  There is competent evidence in this case 
 
         that claimant will complete her training as a radiological 
 
         technologist and be employed earning $9.50 per hour.  Under the 
 
         facts of this case there is a strong probability that claimant's 
 
         post-injury earnings will be a minimum of $9.50 per hour.  When 
 
         all the relevant factors are considered claimant has suffered a 
 
         50 percent industrial disability as a result of her March 17, 
 
         1988 injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay unto claimant two hundred fifty 
 
         (250) weeks of permanent partial disability benefits at the rate 
 
         of seventy-four and 75/l00 dollars ($74.75) per week from 
 
         December 2, 1988.
 
         
 
              
 
         
 
              Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
 
 
         
 
                                       ________________________________
 
                                       BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
                                           
 
         
 
         Copies To:
 
         
 
         Mr J W McGrath
 
         Mr Steven J Swan
 
         Attorneys at Law
 
         Fourth & Dodge St
 
         PO Box 498
 
         Keosauqua  IA  52565
 
         
 
         Mr John C Stevens
 
         Attorney at Law
 
         122 E 2nd St
 
         PO Box 748
 
         Muscatine  IA  52761
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed May 26, 1994
 
                                               BYRON K. ORTON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SCHLENA A. DOWELL,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 880145
 
            EDWIN WAGLER d/b/a ED'S       :
 
            SUPER VALU,                   :         D E C I S I O N
 
                                          :
 
                 Employer,                :               O N
 
                                          :
 
            and                           :           R E M A N D
 
                                          :
 
            UNITED FIRE & CASUALTY        :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant's phantom limb pain syndrome was a condition where 
 
            the pain was "always there" and claimant worked through the 
 
            pain.  A doctor assigned an impairment rating to the 
 
            neurological system and the body of the whole because of the 
 
            phantom limb pain syndrome.  The syndrome interfered with 
 
            her ability to function.  Claimant's phantom limb pain 
 
            caused a permanent disability.  Based on the court of 
 
            Appeals decision, Dowell v. Wagler 509 N.W.2d 134 (Iowa App. 
 
            1993), the disability was to be evaluated industrially 
 
            pursuant Iowa Code section 85.34(2)(u).  The claimant's 
 
            functional loss was one factor considered.  Claimant's 
 
            functional loss is not a "floor" for an industrial 
 
            disability award.
 
            
 
            Claimant was age 20 at time of the injury, had a severe 
 
            functional loss from an amputation of the right upper 
 
            extremity and from phantom limb pain syndrome, was well 
 
            motivated, the chances of rehabilitation were excellent and 
 
            earnings were greater following the injury.  She was awarded 
 
            an industrial disability of 50 percent.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GREGORY DAVIDSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  880648
 
            WESTINGHOUSE ELECTRIC,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONWIDE MUTUAL,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 This is a proceeding in arbitration brought by Gregory 
 
            Davidson, claimant, against the Second Injury Fund of Iowa, 
 
            defendant, for benefits as the result of an alleged previous 
 
            injury which occurred on July 3, 1976, to the left leg and 
 
            an alleged second injury which occurred on May 27, 1986, to 
 
            the right arm.  A hearing was held in Cedar Rapids, Iowa, on 
 
            November 18, 1991, and the case was fully submitted at the 
 
            close of the hearing.  The record consists of the testimony 
 
            of Gregory Davidson, claimant; claimant's exhibits 1 through 
 
            4 and defendant's exhibits A through J.  Both attorneys 
 
            presented a brief written description of disputed issues at 
 
            the time of the hearing.  The deputy ordered a transcript of 
 
            the hearing.  Both attorneys submitted excellent posthearing 
 
            briefs.
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury and that the 
 
            rate of compensation in the event of an award is $544.24 per 
 
            week.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on May 27, 1986, 
 
            which arose out of and in the course of employment with 
 
            employer;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Whether the injury of May 27, 1986, was the cause of 
 
            permanent disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits as a result of this injury; and
 
            
 
                 Whether claimant is entitled to benefits from the 
 
            Second Injury Fund of Iowa pursuant to Iowa Code section 
 
            85.64.
 
            
 
                               PRELIMINARY MATTERS
 
            
 
                 At the request of defendant's counsel, official notice 
 
            is taken of the original notice and petition and the special 
 
            case settlement with employer which appear in the industrial 
 
            commissioner's file.  [Iowa Administrative Procedure Act 
 
            17A.14(4)]. (transcript page 8).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 It is determined that claimant and the employer made a 
 
            joint application for special case compromise settlement for 
 
            the injury of May 27, 1986, on February 6, 1991.  At 
 
            paragraph one and paragraph three, claimant asserts he 
 
            suffered an injury on May 27, 1986, which arose out of and 
 
            in the course of employment with employer.  At paragraph 
 
            four, claimant and employer agreed that there was a bona 
 
            fide dispute as to whether or not all of claimant's current 
 
            disability, or a substantial portion of the claimed 
 
            disability was related to the May 27, 1986, work injury or 
 
            to physical conditions other than those caused by the May 
 
            27, 1986, injury.  Paragraph five states that the claimant 
 
            represents to the industrial commissioner that he has 
 
            reasonable doubt as to whether he would be successful in the 
 
            event of a hearing under the provisions of the workers' 
 
            compensation laws of the state of Iowa and is of the opinion 
 
            that it would be for his best interest to settle and 
 
            compromise his claim.  
 
            
 
                 It is determined that an order authorizing and 
 
            approving a joint application for special case compromise 
 
            settlement was signed by deputy industrial commissioner 
 
            Deborah Dubik on February 14, 1991.  In the order approving 
 
            the settlement, Deputy Dubik stated, "[C]ompensability of 
 
            Claimant's alleged injuries are in dispute between the 
 
            parties and a special case compromise settlement should be 
 
            authorized."  The order also states that claimant "...is 
 
            hereby forever estopped from questioning the validity of 
 
            said settlement and from instituting or maintaining any 
 
            further action or actions for review or otherwise."  The 
 
            order states that it is not to be construed as an original 
 
            proceeding stopping the running of the statute of 
 
            limitations.  The final paragraph of the order states, 
 
            "[S]aid settlement hereby approved shall constitue a final 
 
            bar to any  further rights arising under Chapters 85, 85A, 
 
            85B, 86, 87, or 17A, Code of Iowa."
 
            
 
                 Official notice is taken of the application and the 
 
            order.  [Iowa Administrative Procedure Act 17A.14(4)].
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It is determined that claimant's action against the 
 
            Second Injury Fund of Iowa as a result of the injury of May 
 
            27, 1986, to his right arm is barred by the special case 
 
            settlement between claimant and employer and its insurance 
 
            carrier.  Lambert v. Second Injury Fund of Iowa, file number 
 
            716025 (App. Dec. September 30, 1983) (appeal to the 
 
            district court dismissed).
 
            
 
                 Iowa Code section 85.64, the Second Injury Compensation 
 
            Act, requires a previous permanent loss of a member and a 
 
            subsequent second compensable injury which causes another 
 
            permanent loss of a member.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 17-5 at page 143.  
 
            Claimant has failed to prove that he has sustained a second 
 
            compensable injury.
 
            
 
                 Iowa Industrial Commissioner Robert C. Landess stated 
 
            in the Lambert case:
 
            
 
                    A special case settlement is basically a 
 
                 release and does not establish that an injury 
 
                 arose out of and in the course of employment.  
 
                 Furthermore, the fact that that money is paid in 
 
                 settlement does not conclusively show that 
 
                 employee's injury was work-related and 
 
                 compensable.  Rich v. Dyna Technology, Inc., 204 
 
                 N.W.2d 867 (Iowa 1973).
 
            
 
                 Iowa Code section 85.35 provides in part in the last 
 
            two sentences of that section, "Notwithstanding any 
 
            provisions of this chapter and chapters 85A, 85B, 86 and 87, 
 
            an approved settlement shall constitute a final bar to any 
 
            further rights arising under this chapter and chapters 85A, 
 
            85B, 86 and 87.  Such payment shall not construed as the 
 
            payment of weekly compensation."  
 
            
 
                 Commissioner Landess noted in the Lambert decision that 
 
            the Second Injury Fund was created by this chapter, chapter 
 
            85 of the Code of Iowa, more specifically sections 85.63 to 
 
            85.69, the Second Injury Compensation Act.  Therefore, he 
 
            concluded that the special case settlement was a final bar 
 
            to any further rights against the Second Injury Fund.  
 
            
 
                 Commissioner Landess determined that employer 
 
            liability, is required to be established, prior to the 
 
            settlement, either by way of admission or adjudication.  
 
            White v. Weinberger, 49 Mich. App. 430, 212 N.W.2d 308 
 
            (1973), aff'd 397 Mich. 23, 242 N.W.2d 427 (1976).  
 
            
 
                 In this case, a settlement under paragraph eight of 
 
            section 85.35, even though employer did not deny liability, 
 
            they did not admit liability.  The application states that 
 
            claimant has reasonable doubts as to whether he would be 
 
            successful in the event of a hearing and was of the opinion 
 
            it would be in his best interest to settle and compromise 
 
            his claim.  Thus, there was no admission of liability by 
 
            employer in the application for compromise settlement.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Furthermore, the order approving the settlement states 
 
            that compensability of claimant's alleged injuries are in 
 
            dispute between the parties.  Thus, there has been no 
 
            admission of liability by employer that claimant (1) 
 
            sustained an injury arising out of and in the course of 
 
            employment with employer; (2) to a specified scheduled 
 
            member; (3) which was the cause of permanent disability; and 
 
            (4) for which claimant was entitled to compensation.  (Iowa 
 
            Code section 85.64).  Nor, since the claim was settled, has 
 
            there been any adjudication of these issues.  
 
            
 
                 It is noted that the order approving the settlement was 
 
            approved as to form and content and signed by the attorneys 
 
            for both parties.
 
            
 
                 Iowa Code section 85.35 indicates in the final 
 
            paragraph that it is a bar to any other workers' 
 
            compensation action.  Commissioner Landess made note of this 
 
            point in the Lambert decision.  Both the application for 
 
            settlement and the order approving the settlement in this 
 
            case provide that the settlement is a bar to any further 
 
            rights under the workers' compensation chapters of the Code.  
 
            
 
                 Industrial Commissioner David E. Linquist determined 
 
            that where claimant entered into a special case settlement 
 
            under Iowa Code section 85.35 that claimant had acknowledged 
 
            that an injury did not arise out of and in the course of 
 
            employment.  He stated, "The settlement under that section 
 
            constitutes a determination that the injury did not arise 
 
            out of and in the course of employment."  Claimant was 
 
            precluded from seeking any further award based on the injury 
 
            which was the subject of the special case settlement.  
 
            Holland v. Associated Grocers of Iowa, file number 757549 
 
            (App. Dec. 1990).
 
            
 
                 Deputy Industrial Commissioner Helenjean Walleser, 
 
            relying on Lambert, recently sustained a motion for summary 
 
            judgment for the Second Injury Fund where claimant had 
 
            entered into a special case settlement with employer and 
 
            insurance carrier.  She held that the special case 
 
            settlement established that a bona fide dispute and 
 
            justiciable controversy existed as to whether claimant has 
 
            sustained an injury that arose out of and in the course of 
 
            employment.  Therefore, it cannot be said that claimant has 
 
            sustained a second compensable injury.  Amaya v. Pak 
 
            Fabricators, Ltd., file number 996359 (1991) (appealed).
 
            
 
                 Defendant Second Injury Fund contends that its 
 
            liability is not separate and apart from that of the 
 
            employer but is derivative from that of the employer.  This 
 
            view is supported by an Oklahoma case [Special Indemnity 
 
            Fund v. Mickey, 563 P. 2d 123 (Okla 1977)]; 2 Larson 
 
            Workmen's Compensation Law, section 59.30(i), page 10-425 
 
            (1989).  Defendant also contends it is supported by Jackwig, 
 
            The Second Injury Fund of Iowa: How Complex Can a Simple 
 
            Concept Become?, 28 Drake L. Rev. 889, 909 (1979).
 
            
 
                 The Iowa Industrial Commissioner has not adopted these 
 
            specific words or this specific concept, but, nevertheless, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            it is clear from the Lambert and Holland decisions and the 
 
            ruling in Amaya, that claimant is precluded from pursuing an 
 
            action against the Second Injury Fund after entering into a 
 
            special case settlement under Iowa Code section 85.35 with 
 
            the employer and insurance carrier with respect to the 
 
            alleged second injury.
 
            
 
                 The determination made in this case and in the cases 
 
            cited in this decision are supported by Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice, section 17-4 
 
            at page 142 which reads as follows:
 
            
 
                 There would be substantial question in a case 
 
                 where an employee and employer entered into a 
 
                 settlement agreement pursuant to Iowa Code section 
 
                 85.35 as to whether an employee could make a claim 
 
                 against the second injury fund because money 
 
                 received under such a settlement is not payment of 
 
                 compensation.  citing Rich v. Dyna Technology, 
 
                 Inc., 204 N.W.2d 867 (Iowa 1973).
 
            
 
                 Lambert, Holland and Amaya, which are all subsequent to 
 
            the comment in Lawyer and Higgs, are decisions that proved 
 
            the textbook is correct.
 
            
 
                 Claimant has not cited any authority to support the 
 
            view that his claim is not barred and this deputy has not 
 
            been able to find any such authority.
 
            
 
                 Wherefore, it is determined as a matter of law that 
 
            claimant's action against the Second Injury Fund of Iowa as 
 
            a result of the alleged injury of May 27, 1986, to his right 
 
            arm, is barred by the special case settlement between 
 
            claimant and the employer and its' insurance carrier because 
 
            claimant failed to prove a second injury as required by Iowa 
 
            Code section 85.64.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no compensation is owed by the Second Injury Fund 
 
            of Iowa to claimant.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of the hearing, are charged to claimant pursuant 
 
            to rule 343 IAC 4.33 and Iowa Code section 86.19(1).
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Mr. Thomas Currie
 
            Attorney at Law
 
            3401 Williams Blvd. SW
 
            PO Box 998
 
            Cedar Rapids, Iowa  53406
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                            1100 1303 2901 3200 3302
 
                                            Filed December 10, 1991
 
                                            Walter R. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GREGORY DAVIDSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  880648
 
            WESTINGHOUSE ELECTRIC,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONWIDE MUTUAL,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100 1303 2901 3200 3302
 
            It was determined that claimant's special case settlement 
 
            with employer and insurance carrier was a bar to an action 
 
            against the Second Injury Fund because as a matter of law, 
 
            claimant could not prove that he sustained a second injury 
 
            arising out of and in the course of his employment with 
 
            employer.
 
            The decision is well documented with several citations of 
 
            authority.