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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY VANDERHEIDEN,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 886299
 
            WERNIMONT CONSTRUCTION CO.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM FIRE & CASUALTY,   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on August 7, 1991, in 
 
            Fort Dodge, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on September 12, 1988.  The record in the 
 
            proceeding consists of the testimony of the claimant, Jerry 
 
            Wernimont, Andy Androy, Kenneth Testroel, and Deb Pornaras; 
 
            claimant's exhibits 1 through 18; and defendants' exhibits A 
 
            through D and I through V.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged injury on September 12, 
 
            1988 arose out of and in the course of his employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to a September 12, 1988 alleged injury; and
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.
 
            
 
                     
 
            
 
            
 
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            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 33 year old who has a GED.  He related 
 
            his work history in various jobs prior to working for 
 
            defendant employer beginning in August 1988.
 
            
 
                 Claimant's work for defendant employer involved 
 
            remodeling houses, a barn, motels, etc.  Claimant was an 
 
            experienced Sheetrock installer.  He mentioned the various 
 
            jobs he worked on for defendant employer and what type of 
 
            work he did.  He was basically a carpenter.
 
            
 
                 Claimant related how his alleged injury occurred on 
 
            September 12, 1988, while hanging Sheetrock with another em
 
            ployee, Andy Androy.  He said he fell off the sawhorse onto 
 
            the floor and felt a pop in his back.  Pain and a tingling 
 
            sensation developed.  He said he rested awhile on a pile of 
 
            Sheetrock and discussed his fall with Androy and then 
 
            continued working.  He told his employer but the employer 
 
            said everyone's back hurts.
 
            
 
                 After work on September 12, 1988, claimant and the 
 
            boss, Jerry Wernimont, and other employees went across the 
 
            street to drink at a bar.  Claimant stayed and ate but the 
 
            others left to go eat at another place.  Claimant indicated 
 
            he waited for the others to return, as agreed, but they 
 
            never returned.  Claimant subsequently went across the 
 
            street to the motel where he had worked earlier and covered 
 
            himself in plastic and slept in a hot tub in an unfinished 
 
            motel room.  No time was given but it would appear it was 
 
            late at night or early morning when this occurred.  Claimant 
 
            could not remember the motel in which the employees were to 
 
            stay.  The evidence indicates the motel was agreed upon when 
 
            they arrived in town that day.  Claimant denied being 
 
            intoxicated or having too much to drink.  He admitted he had 
 
            a "buzz on" from his alcohol consumption.  The undersigned 
 
            believes from claimant's testimony and all the other facts 
 
            and circumstances that he was inebriated and couldn't find 
 
            his way to the motel because of his condition.  Early on the 
 
            morning of September 13, 1988, he met the crew from the 
 
            construction project at 7:30 a.m. at the project.  He said 
 
            he quit his job then because of the treatment he received 
 
            the night before when he was not met by the others at the 
 
            bar in which he was drinking.   Jerry Wernimont honored 
 
            claimant's request to be sent home and a bus ticket was 
 
            purchased by Wernimont.
 
            
 
                 Claimant was making $8.00 per hour plus overtime with 
 
            defendant employer but had to sue in small claims court to 
 
            get the overtime and the return of his tools and two weeks 
 
            pay that was withheld.  Claimant won the lawsuit.  He said 
 
            he also had to fight for his unemployment benefits.  The 
 
            record indicates he lost the first round for unemployment 
 
            benefits but then won on appeal and was awarded the 
 
            benefits.
 
            
 
                 Claimant indicated he had no back problems prior to 
 

 
            
 
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            September 12, 1988.  He related things he could do prior to 
 
            September 12, 1988 and things he cannot now do.  He said he 
 
            can only lift 30 pounds at the present time.  Claimant's 
 
            statement taken by the insurance company on January 29, 1988 
 
            indicated claimant has been receiving chiropractic 
 
            treatments for his back since he was 15 years of age.  These 
 
            treatments occurred every few months (Defendants' Exhibit U, 
 
            page 11).
 
            
 
                 Claimant related a motorcycle-rock throwing incident in 
 
            the fall of 1989 that occurred after his injury.  Other 
 
            witnesses testified to this also.  The story of Jerry 
 
            Wernimont differs from claimant's and his lady friend who 
 
            was on the motorcycle with him on this occasion.  There is 
 
            no reason to set out the details of this event as related by 
 
            the claimant, Jerry Wernimont or Deb Pornaras as it goes 
 
            only to the credibility of the witness and not whether 
 
            claimant has an industrial disability.  It is obvious there 
 
            was then and still is a strong dislike among the parties and 
 
            some one person or persons are not telling the truth.  As to 
 
            this particular instance, the undersigned believes that 
 
            claimant's understanding of the occurrence of this event is 
 
            more credible than that of Mr. Wernimont.  Although claimant 
 
            has no motorcycle now, he was riding it again in 1990.  He 
 
            said he has had two motorcycles since September 1988.
 
            
 
                 On cross-examination, claimant was impeached several 
 
            times as to his testimony and answers to interrogatories.  
 
            Claimant's recall of prior injuries was very poor.  He did 
 
            not recall a back injury or the first report of this injury 
 
            in March 1988.  He eventually remembered when the first 
 
            report was shown to him.  Claimant also did not recall at 
 
            the time of his interrogatory answers or deposition his 
 
            November 1979 low back injury at Farmland in which the 
 
            admitting diagnosis was "ruptured intervertebral disc."  
 
            Claimant could not recall if he asked defendants to see a 
 
            doctor.  Claimant did not make any effort to see a doctor on 
 
            September 12 or 13, 1988.  Claimant acknowledged he told 
 
            defendant employer on September 12, 1988 that he was going 
 
            to quit but he did not recall as to whether he told the 
 
            employer he was going to file for unemployment.
 
            
 
                 Claimant asked Jerry Wernimont if he could have his job 
 
            back shortly after he quit.  Claimant acknowledged he called 
 
            Wernimont's wife regarding Jerry going to the bar but did 
 
            not recall if details were given.  The undersigned believes 
 
            that claimant gave Mr. Wernimont's wife more details than he 
 
            was indicating at a hearing.  The undersigned draws this 
 
            conclusion from the fact that claimant's attorney on 
 
            different occasions asked whether Mr. Wernimont and his 
 
            friends left the bar the evening of September 12 with ladies 
 
            they met at the bar.  Of course, this has nothing to do with 
 
            the issues herein.
 
            
 
                 Claimant said he had another accident since September 
 
            12, 1988, when he went to a house and there were no steps, 
 
            as he thought, and he landed on the concrete on his head.  
 
            It appears this accident occurred around December 1, 1988.
 
            
 
                 Jerry Wernimont, owner of defendant employer, was 
 

 
            
 
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            initially called by the claimant as an adverse witness and 
 
            then called again to testify by defendants as part of 
 
            defendants' case.  He is 27 years old.  He first employed 
 
            claimant in August 1988 as a general laborer for $8.00 per 
 
            hour.  He related various jobs claimant worked on for him.  
 
            He said claimant did not tell him he fell off a sawhorse and 
 
            injured himself.  At the end of the day of September 12, 
 
            1988, at 6:30 p.m., he and his workers, including the 
 
            claimant, went across the street to a bar.  He said claimant 
 
            never said anything about an injury at that time either.  He 
 
            and his other workers left the bar to go eat about 9:30 p.m.  
 
            The motel at which all were staying was two blocks away.  
 
            After eating, he and the other employees returned to the bar 
 
            where they left claimant and he was not there.  Wernimont 
 
            contends he returned to the motel at approximately 10:30 
 
            p.m.   He said claimant was not at the job site at 5:00 a.m. 
 
            the next day but was at the site at 7:30 a.m.  He said 
 
            claimant had no problem walking.  Claimant then told him "he 
 
            should kick the shit out of both of them, which one is 
 
            first."   He said claimant told him he would file for 
 
            unemployment.  Claimant said he was quitting.  Wernimont 
 
            then arranged to take claimant to the bus station at 
 
            claimant's request and bought a ticket for claimant to 
 
            return home.
 
            
 
                 Mr. Wernimont said he then returned to the site and saw 
 
            the Sheetrock had holes punched in it and the job site night 
 
            lights were busted and a sledgehammer nearby had a broken 
 
            handle.  He said claimant called him two days later after he 
 
            had quit and indicated everyone makes mistakes and wanted to 
 
            know if he could come back to work as he would be ready 
 
            Monday.
 
            
 
                 Mr. Wernimont testified he first knew of claimant's 
 
            injury seven days later when he received a call from the 
 
            doctor's nurse wanting to know his workers' compensation 
 
            carrier.  He admitted he refused to give the name of his 
 
            carrier at that time.
 
            
 
                 Mr. Wernimont admitted he did not pay claimant his 
 
            overtime or return his tools until claimant sued him in 
 
            small claims court and won.  The judge ordered the return of 
 
            the tools, payment of overtime and the two weeks of pay he 
 
            had withheld.
 
            
 
                 Mr. Wernimont agreed there was a motorcycle incident 
 
            involving claimant coming in the vicinity of a job site of 
 
            defendant employer.  The parties' stories are different as 
 
            to what occurred.  Wernimont does not know where claimant 
 
            spent the night of September 12, 1988.  He indicated 
 
            claimant was not at the job site at 5:00 a.m.
 
            
 
                 Andy Androy, who now works for his father, was employed 
 
            by defendant employer and worked on the Wisconsin project 
 
            with claimant on September 12, 1988.  He said he did not see 
 
            claimant fall or hear claimant's back pop.  He indicated he 
 
            never heard claimant say he hurt his back nor did he hear 
 
            claimant tell anyone else.  He said he never saw claimant 
 
            hurt and the next day, September 12, 1988, claimant never 
 

 
            
 
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            said anything as to his back hurting.  Androy said 
 
            Wernimont, himself and the other workers went back to the 
 
            bar in the evening of September 12, 1988, and claimant was 
 
            not there.
 
            
 
                 Keith Testroel testified in rebuttal but his testimony 
 
            is of no real consequence and only went to issue 
 
            credibility.
 
            
 
                 Deb Pornaras was called as a rebuttal witness.  She was 
 
            with claimant on the night in 1989 when Jerry Wernimont 
 
            allegedly threw a rock at the motorcycle that she was riding 
 
            on with the claimant.  She described how she feared for her 
 
            life and Wernimont's actions in driving his truck toward 
 
            her.  She said she jumped off the motorcycle because she 
 
            thought she was going to get hit by his truck.
 
            
 
                 Claimant was called again to rebut testimony of Andy 
 
            Androy and Jerry Wernimont.  He did state that he did not 
 
            drink all the seven hours he was at the bar the evening and 
 
            morning of September 12 and 13, 1988.  He said he was not 
 
            intoxicated but had a buzz on" as he had an empty stomach.  
 
            He said he did not vandalize the job site.
 
            
 
                 Defendants' exhibits A, B and C reflect claimant's 
 
            prior back problem but there is no evidence that claimant 
 
            suffered any residuals from this 1979 injury reflected 
 
            therein.
 
            
 
                 Defendants' exhibit D reflects a lumbar strain in March 
 
            1989.
 
            
 
                 Defendants' exhibit I reflects a bulging disc at L4-5.  
 
            Defendants' exhibit J reflects claimant's heavy drinking 
 
            problem and depressed suicidal condition.  It indicated 
 
            claimant fell down into the basement as claimant entered a 
 
            house being remodeled and the stairway was taken away.  
 
            Claimant fell onto the concrete floor hitting his head and 
 
            received contusions, abrasions and cervical strain.  This is 
 
            also reflected in claimant's exhibit 15, page 100.
 
            
 
                 Defendants' exhibit L reflects several chiropractic 
 
            treatments given claimant beginning September 14, 1988 
 
            through February 28, 1989.  Defendants' exhibit K reflects 
 
            defendant insurance company on January 26, 1988, notified 
 
            the chiropractor that no more treatments would be paid for.  
 
            Defendants' exhibit M reflects a letter from John M. 
 
            Dougherty, M.D., on February 23, 1989, in which he examined 
 
            the claimant on February 20, 1989, for orthopedic 
 
            evaluations and suggested some tests.  On the May 4, 1989 
 
            appointment, claimant was uncooperative.  The doctor subse
 
            quently wrote the insurance company that he no longer agreed 
 
            to order further tests or further examine this claimant.
 
            
 
                 The report of Joel T. Cotton, M.D., dated July 8, 1991, 
 
            reflects that claimant has a history of low back pain going 
 
            back to age 15.  He found no neurological impairment and no 
 
            permanent partial disability.  The undersigned believes the 
 
            doctor means impairment, not disability.  The doctor further 
 
            wrote that the claimant told him he had periodical 
 

 
            
 
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            adjustments every three to four months from that age (15) up 
 
            to and including the date of injury and on some occasions 
 
            treatments increased to two times per day.  He further 
 
            wrote:
 
            
 
                 While this may have caused a temporary increase in 
 
                 symptoms, there is nothing to indicate that any 
 
                 aggravation of his underlying condition took 
 
                 place.  It is my opinion based upon a reasonable 
 
                 degree of medical probability that this individual 
 
                 could pursue all usual and customary activity 
 
                 without restriction and that there specifically is 
 
                 no loss of function present in this individual as 
 
                 a result of the September, 1988, injury.
 
            
 
            (Def. Ex. N)
 
            
 
                 Joseph F. Gross, M.D., a professor in the orthopedic 
 
            department at Creighton University, testified by way of his 
 
            deposition of March 27, 1991 (Cl. Ex. 1).  He related the 
 
            history claimant gave him on claimant's visit in July 1990.  
 
            He opined claimant had a 10 percent permanent partial 
 
            impairment to his body as a whole (Cl. Ex. 1, p. 9; Cl. Ex. 
 
            5, p. 66).  Claimant's attorney then attempted to lead the 
 
            doctor as to the September injury aggravating claimant's 
 
            back problems.  Defendants properly objected.  The doctor 
 
            indicated that he thought claimant's September 1988 injury 
 
            aggravated claimant's back problems but the doctor was not 
 
            given a history by the claimant of his falling in an open 
 
            stairway landing on cement on his head, nor that he has had 
 
            chiropractic treatments for a number of years  (Cl. Ex. 1, 
 
            pp. 9 and 18).  Claimant never told the doctor that he 
 
            cracked his tailbone either (C. Ex. 1, p. 23).  The doctor 
 
            did indicate that the fall down the stairway would not 
 
            change his opinion that claimant's September 12, 1988 injury 
 
            caused claimant's current medical situation.  The 
 
            undersigned frankly fails to follow the doctor's conclusion 
 
            based on the facts he had or actually did not have 
 
            originally.  It appears these additional facts of additional 
 
            injuries would cause some reconsideration on the doctor's 
 
            original opinion which was rendered without this evidence.
 
            
 
                 John J. Dougherty, M.D., an orthopedic surgeon, 
 
            testified by way of his deposition on September 12, 1991 
 
            (Cl. Ex. 2).  He testified he examined claimant on February 
 
            20, 1989.  Claimant told the doctor his only back problem 
 
            was a fall on his tailbone as a child and he had 
 
            chiropractic treatments all of his life.  He also indicated 
 
            claimant told him he couldn't lift more than 25 pounds and 
 
            has strained muscles and has strained muscles before.  
 
            Claimant did not relate a history of his March 1988 back 
 
            strain or any popping in his back on September 12, 1988 as 
 
            result of his September 12, 1988 alleged injury (Cl. Ex. 2, 
 
            p. 6).  It also does not appear the doctor knew of 
 
            claimant's fall in December 1988 into a basement.  It is 
 
            surprising the doctor was not specifically asked this at his 
 
            deposition.
 
            
 
                 The doctor said claimant has a spina bifida occulta of 
 
            S1 and a bilateral sacralization of L5.  He said the MRI 
 

 
            
 
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            report of July 31, 1989 shows degenerative lumbar 
 
            spondylolysis at L3-4 and L4-5 level with medium bulging of 
 
            the annulus but no frank disc herniation.  He said claimant 
 
            has a congenital abnormal low back.
 
            
 
                 Contrary to what Dr. Gross indicated on July 17, 1990, 
 
            Dr. Dougherty said that on February 20, 1989, both of 
 
            claimant's calves were equal and he didn't see any atrophy.  
 
            He agreed with Dr. Gross that from the history he obtained, 
 
            claimant's September 12, 1988 incident would have been of 
 
            such a character as to materially aggravate claimant's back 
 
            (Cl. Ex. 2, p. 20).  Dr. Dougherty did not have an opinion 
 
            as to claimant's impairment as he only saw claimant on 
 
            February 20, 1989 (Cl. Ex. 2, p. 21).  He did say that based 
 
            on what he knows he would question that much impairment as 
 
            given by Dr. Gross and, in fact, indicated he didn't think 
 
            claimant was having too much trouble and would hesitate to 
 
            give him any disability (Cl. Ex. 2, p. 23).  The undersigned 
 
            believes the doctor meant impairment as only the deputy 
 
            industrial can determine the claimant's disability herein.  
 
            The doctor said the fact that claimant has a congenital 
 
            anomaly would give claimant some symptoms from time to time.  
 
            In his February 2, 1989 letter, the doctor refers to 
 
            claimant's February 20, 1989 examination.  It doesn't appear 
 
            the doctor was told anything about claimant's December 1988 
 
            fall into a basement.  He questions whether claimant was 
 
            having as much difficult as he indicates.  He felt claimant 
 
            could go back to work.  He said claimant has had trouble 
 
            with his back for a long period of time. (Cl. Ex. 14, p. 
 
            99).
 
            
 
                 On August 21, 1989, Steven J. Kraus, D.C., wrote he was 
 
            unable to evaluate any permanency because he had not seen 
 
            claimant for nearly six months.  He indicated claimant 
 
            reached maximum medical recovery on January 20, 1989.  He 
 
            also suggested further chiropractic care to reduce further 
 
            aggravation of claimant's disc bulge.  Claimant was only 
 
            treated twice by Dr. Kraus.  His record does not reveal 
 
            claimant's fall into a basement in December 1988 (Cl. Ex. 
 
            6).
 
            
 
                 On May 30, 1989, John R. Carroll, M.D., questions the 
 
            severity of claimant's discomfort (Cl. Ex. 8).  His 
 
            examination was normal and the CT scan showed only minimal 
 
            bulging of one lumbar disc with some compression of the 
 
            thecal sac without apparent impingement of the nerve roots 
 
            or of current or recent disc rupture with extrusion of the 
 
            nucleus pulposis.  He said this condition is common in 
 
            asymptomatic patients with early or mild degeneration of the 
 
            disc.  He indicated that although claimant's history is very 
 
            plausible for an acute musculoskeletal back injury, he would 
 
            not hazard to guess its actual nature or extent based on his 
 
            examination in November.
 
            
 
                 Claimant's exhibit 12, page 96, indicates that on 
 
            January 16, 1989, claimant fell ten feet down into an open 
 
            basement, unconscious, and went to the hospital.  He 
 
            received a neck injury.
 

 
            
 
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                 Claimant's exhibit 15, page 100, dated December 1, 
 
            1988, indicates claimant was admitted under court order for 
 
            evaluation of suicidal attempts and depression.  He had been 
 
            drinking heavily and was having marital problems with his 
 
            wife over his lifestyle.  On the date of admission, he had 
 
            eight shots of whiskey and three beers.  He indicated on the 
 
            same date claimant entered the back door of a house being 
 
            remodeled and fell on the concrete floor hitting his head.  
 
            Whether this is the same event reported in claimant's 
 
            exhibit 12, page 96, is not clear as it indicated that fall 
 
            occurred on January 16, 1989.  The undersigned believes it 
 
            is one and the same event but is surprised this was not 
 
            cleared up on questions asked at the hearing.
 
            
 
                 There was considerable testimony in this case strictly 
 
            to the issue of credibility of the witnesses.  Without 
 
            question, this case was full of contradictory statements of 
 
            the parties over the facts or situations in which there 
 
            should not been dispute or a disagreement as to what 
 
            occurred.  It is obvious to the undersigned that perjury has 
 
            been committed.
 
            
 
                 The difficult problem the undersigned has is who is the 
 
            more credible witness.  Claimant has the burden to prove 
 
            that an injury arose out of and in the course of his 
 
            employment and, also, that there is a causal connection 
 
            between the claimed disability and the alleged injury.  
 
            Claimant alleges a fall but Mr. Wernimont and Mr. Androy 
 
            claim no knowledge of any actual fall or injury.  Claimant 
 
            relates conversations that he had with Mr. Androy.  It is 
 
            undisputed that Mr. Androy was working on September 12, 1988 
 
            with claimant.
 
            
 
                 It is obvious there is tremendous animosity and dislike 
 
            between claimant and Jerry Wernimont, the owner of defendant 
 
            employer.  The animosity was evident at the hearing.  The 
 
            parties had confrontations after the alleged injury.  Mr. 
 
            Androy does not work for defendant employer and appears to 
 
            be, of the three individuals; namely, claimant, Jerry 
 
            Wernimont and himself, the most disinterested witness.  It 
 
            appears he was a brother-in-law of claimant but the question 
 
            was not followed up as to whether claimant's wife or ex-wife 
 
            was his sister.  There is no evidence as to the claimant 
 
            being divorced even though there is considerable evidence of 
 
            claimant's marital problems from the medical history of 
 
            claimant given to various doctors.  If the undersigned 
 
            believes Mr. Androy, then no fall occurred on September 12, 
 
            1988.  It would then follow that claimant may have received 
 
            some back problems when he left the bar late at night on 
 
            September 12 or early morning, September 13, 1988, and slept 
 
            in a tub at the job site wrapped in plastic.  Claimant did 
 
            not disclose his medical history accurately when he visited 
 
            certain doctors, particularly after he had a fall into a 
 
            basement apparently in December 1988.  Claimant has had 
 
            psychiatric problems and marital problems and obviously does 
 
            considerable drinking.  Claimant has had back problems all 
 
            his life, at least from age 15 up the date of his alleged 
 

 
            
 
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            injury of September 12, 1988.  Claimant has been going to a 
 
            chiropractor over the years prior to his injury.  Claimant 
 
            has a congenital back condition and this degeneration all 
 
            occurred prior to his alleged September 12, 1988 injury and 
 
            subsequent thereto.  The undersigned has noticed the 
 
            demeanor of the parties during their testimony, particularly 
 
            since it was evident there was going to be a wide variance 
 
            in the parties' testimony.  The undersigned is concerned 
 
            about the obvious perjury in this case.  Mr. Androy appears 
 
            to be the most disinterested witness at the hearing.  The 
 
            undersigned believes he is the most credible.  With this 
 
            conclusion being drawn, it would appear that the claimant 
 
            did not injure himself a fall on September 12, 1988.
 
            
 
                 The undersigned finds that claimant did not incur an 
 
            injury on September 12, 1988, which arose out of and in the 
 
            course of his employment.  The resolution of this issue 
 
            makes all other issues moot.  Notwithstanding that, the 
 
            undersigned also finds that claimant has failed to prove a 
 
            causal connection between his alleged injury and his current 
 
            medical condition.  It appears that an intervening event 
 
            occurred in 1988 that could have caused claimant's current 
 
            problems or the extent they may exist.  Claimant kept this 
 
            information basically from the doctors.  It would appear 
 
            that an injury of this nature, namely, someone walking into 
 
            a house expecting steps and suddenly falling ten feet onto 
 
            the concrete on his head, could cause an injury or aggrava
 
            tion of an injury.  Claimant has the burden to prove causal 
 
            connection and he has failed.
 
            
 
                 The undersigned finds that claimant shall take nothing 
 
            from these proceedings.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 12, 
 
            1988 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            12, 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 
 

 
            
 
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            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did not incur an injury on September 12, 1988, 
 
            that arose out of and in the course of his employment.
 
            
 
                 Claimant further failed to carry his burden of proof to 
 
            show that his alleged medical condition or disability is 
 
            causally connected to a work-related injury on September 12, 
 
            1988.
 
            
 
                 Claimant is entitled to no benefits herein.
 
            
 
                 Claimant and Jerry Wernimont are not credible 
 
            witnesses.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr E W Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St
 
            P O Box 455
 
            Spirit Lake IA 51360
 
            
 
            Mr Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108
 
                      Filed August 28, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANTHONY VANDERHEIDEN,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 886299
 
            WERNIMONT CONSTRUCTION CO.,   :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE FARM FIRE & CASUALTY,   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Found claimant did not incur an injury that arose out of and 
 
            in the course of his employment.
 
            
 
            5-1108
 
            Claimant failed to prove causal connection.
 
            Claimant and defendant employer were not credible witnesses.  
 
            Deputy relied on testimony of a more disinterested witness 
 
            to arrive at his conclusion as to arising out of and in the 
 
            course of.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         BARBARA ALITZ,                  :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 886305
 
         HY-VEE FOOD STORES, INC.,       :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         EMPLOYERS MUTUAL COMPANIES,     :
 
                                         :
 
              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.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Whether or not the Deputy Industrial Commissioner 
 
              erred in concluding that claimant's injury of August 
 
              18, 1988, caused her to have a 30 percent industrial 
 
              disability, and
 
         
 
              2.  Whether or not the Deputy Industrial Commissioner 
 
              erred that defendants did not act reasonably and 
 
              delayed in increasing their benefits to claimant.
 
              
 
              Claimant states the following issues on cross-appeal:
 
         
 
              1.  Whether or not the Deputy Industrial Commissioner 
 
              erred in holding that claimant's injury of August 18, 
 
              1988, caused her to have only a 30 percent industrial 
 
              disability, and
 
         
 
              2.  Whether or not the Deputy Industrial Commissioner 
 
              erred in limiting penalty benefits for unreasonable 
 
              denial and delay of payments under Iowa Code Section 
 
              86.13 to only 15 weeks of penalty benefits.
 
         
 
                             FINDINGS OF FACT
 
         
 
              Drugtown is owned by defendant-employer Hy-Vee Food Stores, 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Inc.
 
         
 
              Claimant is a high school graduate and worked at a nutrition 
 
         store for five years prior to beginning her employment with 
 
         Drugtown in 1987.  (Transcript, page 25)
 
         
 
              The parties have stipulated that claimant sustained a 
 
         personal injury arising out of and in the course of her 
 
         employment with defendant employer on August 18, 1988.  The 
 
         parties have further stipulated claimant was paid temporary total 
 
         disability benefits for a period of 28 weeks and 2 days (through 
 
         March 7, 1989) at her rate of $147.42 per week.  (Hearing Report)
 
         
 
              Claimant was born March 28, 1942 (Exhibit 8) and was 46 
 
         years old at the time of her injury.
 
         
 
              On the day of the injury claimant worked nine hours hauling 
 
         170 cases of candy from the back room of the store and stacking 
 
         the candy on shelves at the front of the store.  Each case 
 
         weighed approximately 35-40 pounds.  (Tr., pp. 8-9)
 
         
 
              The following day claimant experienced severe pain in her 
 
         right leg, right foot and back.  (Tr., pp. 10-11)  She first saw 
 
         a doctor regarding this injury on or about August 22, 1988.  
 
         (Tr., pp. 13-14)
 
         
 
              X-rays revealed claimant had sustained two herniated discs 
 
         and surgery (hemilaminectomy on the right with discectomy L4-5, 
 
         S-S1 with fat graft) was performed by William R. Boulden, M.D., 
 
         on November 28, 1988.  (Joint Exhibit 7, p. 2)
 
         
 
              A functional capacities evaluation was done on January 12, 
 
         1989 (Jt. Ex. 5) that determined claimant "currently would be 
 
         placed in a light/medium classification of work."  Work hardening 
 
         was to begin on January 16, 1989.
 
         
 
              On July 20, 1989 claimant's treating physician, Dr. Boulden, 
 
         stated claimant's injury "has left her with a 10 percent 
 
         disability of the spine based on the fact of discectomy."  (Jt. 
 
         Ex. 7, p. 4)  Based on that report defendants paid claimant 
 
         permanency of 50 weeks at her rate of $147.42 per week.
 
         
 
              In 1990 claimant experienced more difficulties and returned 
 
         to Dr. Boulden.  On June 4, 1990 Dr. Boulden stated, "I feel that 
 
         she probably needs to be updated with re-evaluation for a 
 
         disability rating."  (Jt. Ex. 7, p. 8)  On July 18, 1990 Thomas 
 
         Bower, physical therapist, and Dr. Boulden increased claimant's 
 
         impairment rating to 16 percent.  (Jt. Ex. 6)
 
         
 
              Defendants had claimant evaluated by Peter D. Wirtz, M.D.  
 
         On September 19, 1990, two months following the re-evaluation by 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         Mr. Bower and Dr. Boulden, Dr. Wirtz evaluated claimant's 
 
         permanent impairment at a total of 10 percent to the body as a 
 
         whole.  (Jt. Ex. 11, p. 7; Deposition Ex. 1; Jt. Ex. 3)
 
         
 
              Both Drs. Boulden and Wirtz re-examined claimant on February 
 
         1, 1994 and April 8, 1994 respectively (Jt. Ex. 7, p. 17; Jt. Ex. 
 
         3, pp. 3-4), and found there to be no change in claimant's 
 
         present condition.  Dr. Wirtz placed the following work 
 
         restrictions on the claimant:  No excessive and repetitive 
 
         bending, lifting, twisting, and squatting; maximum weight 
 
         capability of 20 pounds.  (Jt. Ex. 3, p. 3)
 
         
 
              Due to claimant's injury she was off work from August 18, 
 
         1988 until March 8, 1989, a period of approximately 6 1/2 months.  
 
         The claimant returned to work at Drugtown on March 8, 1989 and 
 
         has been continuously employed by defendant employer since that 
 
         time, a period in excess of five years at the time of hearing.  
 
         In May of 1989 the Drugtown location where the claimant worked 
 
         moved into the Hy-Vee stored located at Southridge Mall.  Since 
 
         her return to work the claimant has worked for defendant employer 
 
         as manager of the camera department for approximately three years 
 
         and in her current position in the pharmacy department.  (Tr., 
 
         pp. 17-18)  Since returning to work on March 8, 1989 the 
 
         claimant's employment has been steady and she has experienced 
 
         almost no absenteeism.  (Tr., p. 39)
 
         
 
              Claimant is clearly a motivated individual and defendant 
 
         employer clearly has acted responsibly in accommodating 
 
         claimant's work restrictions.  The claimant experiences constant 
 
         pain.  In the pharmacy department the claimant's work includes 
 
         billings, logging invoices, filling unit doses and occasionally 
 
         working behind the counter taking prescriptions and money.  (Tr., 
 
         pp. 19, 42)  Consistent with her work restrictions the claimant 
 
         finds herself unable to stand or sit in one place for very long 
 
         and unable to do lifting.  In accordance with the claimant's work 
 
         restrictions defendant employer has given claimant the freedom to 
 
         move about as she sees fit.  The claimant's co-workers do any 
 
         lifting the claimant is unable to do.  (Tr., pp. 19, 20, 40)
 
         
 
              The claimant's medication consists of over-the-counter pain 
 
         medicine (14-16 tablets daily) and a prescription medication for 
 
         pain.  (Tr., p. 21)
 
         
 
              At the time of injury the claimant worked 40 hours per week 
 
         and was paid $5.50 per hour.  (Tr., p. 23, 50-51)  The claimant's 
 
         current work schedule has her working two consecutive weeks at 38 
 
         hours per week followed by a 40 hour week.  (Tr., p. 22)  The 
 
         claimant's current pay is $8.25 per hour.  (Tr., p. 24)  Since 
 
         her return to work on March 8, 1989 the claimant's hourly pay has 
 
         increased as follows:
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
                   7/89                     $6.50/hr. 
 
                   1/90                     $6.75/hr. 
 
                   1/91                     $7.00/hr. 
 
                   1/92                     $7.25/hr.
 
                   12/92                    $7.40/hr.
 
                   6/93                     $7.65/hr.
 
                   1/94                     $8.25/hr.
 
         
 
         (Tr., pp. 43-44)
 
         
 
            
 
         
 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
                         REASONING AND CONCLUSIONS OF LAW
 
         
 
              The industrial commissioner first addresses the industrial 
 
         disability issue, i.e., claimant's loss of earning capacity.
 
         
 
              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.  Iowa Code section 85.34.
 
         
 
              Claimant, a high school graduate, 46 years of age at the 
 
         time of the injury with no known pre-injury impairment, sustained 
 
         a work injury that resulted in surgical intervention and leaves 
 
         her in constant pain.  Claimant has a functional impairment 
 
         rating as high as 16 percent and rather severe work restrictions.  
 
         Clearly claimant is a motivated individual.  But for defendant 
 
         employer's willingness to accommodate claimant's work 
 
         restrictions, the evidence causes the industrial commissioner to 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         conclude that due to claimant's work injury her prospects for 
 
         employment would not be good.  On the other hand, the record 
 
         establishes that claimant is in a stable employment relationship 
 
         with defendant employer and has been since her return to work on 
 
         March 8, 1989, a period of more than five continuous years at the 
 
         time of hearing.  Evidence of a stable employment relationship 
 
         includes:  Claimant has received a total of seven pay raises 
 
         since her return to work; defendant employer has provided the 
 
         claimant with meaningful work (claimant is not in a make work 
 
         situation); and defendant employer has fully and completely 
 
         complied with claimant's work restrictions (claimant is free to 
 
         move about as she pleases and co-workers do lifting for the 
 
         claimant).  Regarding the claimant's earnings, her post injury 
 
         hourly rate ($8.25 at time of hearing) is exactly 50 percent 
 
         higher than her hourly rate at the time of injury ($5.50).  Post 
 
         injury, claimant's total weekly hours of work are for all 
 
         practical purposes the same as at the time of injury (on average 
 
         less than a one hour per week reduction).
 
         
 
              After considering all of the factors used in determining 
 
         industrial disability, it is the decision of the industrial 
 
         commissioner that Barbara Alitz has sustained a 20 percent 
 
         industrial disability.
 
         
 
              The final issue to be addressed by the industrial 
 
         commissioner is that of 86.13 penalty benefits.
 
         
 
              Iowa Code section 86.13 permits an award of up to 50 percent 
 
         of the amount of benefits delayed or denied if a delay in 
 
         commencement or termination of benefits occurs without reasonable 
 
         or probable cause or excuse.  The standard for evaluating the 
 
         reasonableness of defendants' delay in commencement or 
 
         termination is whether the claim is fairly debatable.  Where a 
 
         claim is shown to be fairly debatable, defendants do not act 
 
         unreasonably in denying payment.  See Stanley v. Wilson Foods 
 
         Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of 
 
         Iowa Physical Plant, File No. 818849 (App. November 1, 1989).  
 
         Covia v. Robinson, 507 N.W.2d 411 (Iowa 1993).
 
         
 
              Imposition of a penalty pursuant to Iowa Code section 86.13 
 
         in the instant case is unwarranted.  On March 8, 1989 claimant 
 
         returned to work for defendant employer.  On July 20, 1989 the 
 
         treating physician assigned a 10 percent functional disability 
 
         impairment which defendant insurance carrier paid.  As the 
 
         claimant had returned to work without any loss of actual 
 
         earnings, it was fairly debatable as to whether additional 
 
         compensation was due claimant.  Determining industrial disability 
 
         is not an exact science and it cannot be said that defendant 
 
         insurance carrier, under the fact of this case, acted 
 
         unreasonably in its decision to pay the functional disability 
 
         impairment assigned by the treating physician.
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
              On July 18, 1990, the treating physician increased 
 
         claimant's impairment rating to 16 percent.  Was it unreasonable 
 
         for defendant insurance carrier to fail to pay additional 
 
         compensation based upon the new impairment rating?  Under the 
 
         facts of this case the industrial commissioner concludes that it 
 
         was still fairly debatable as to whether the claimant was 
 
         entitled to additional compensation after the July 18, 1990 
 
         impairment rating.  At the time of receiving the increased 
 
         impairment rating the claimant had been back to work for 
 
         defendant employer for sixteen continuous months and was being 
 
         paid $6.75 per hour, an hourly rate approximately 23 percent 
 
         higher than at the time of injury.  Further, only two months 
 
         following the increased rating by Dr. Boulden, Dr. Wirtz opined 
 
         the claimant's impairment rating was 10 percent.  Reviewing the 
 
         record in its entirety, the industrial commissioner concludes 
 
         that defendants' position was fairly debatable.  Penalty benefits 
 
         are denied.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                              
 
         
 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
                                 ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay unto claimant one hundred (100) 
 
         weeks of permanent partial disability benefits at the rate of one 
 
         hundred forty-seven and 42/100 dollars ($147.42) per week from 
 
         March 8, 1989.
 
         
 
              That claimant take no 86.13 penalty benefits.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on unpaid weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants are to be given credit for benefits 
 
         previously paid.
 
         
 
              That claimant and defendants shall share equally the costs 
 
         of the appeal including transcription of the hearing.  Defendants 
 
         shall pay all other costs.
 
         
 
              That defendants shall file claim activity reports as 
 
         required by this agency pursuant to rule 343 IAC 3.1(2).
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James L. Spellman
 
         Attorney at Law
 
         1300 Locust St.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-1803; 5-4000.2
 
                                       Filed October 27, 1994
 
                                       Byron K. Orton
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         BARBARA ALITZ,                  :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 886305
 
         HY-VEE FOOD STORES, INC.,       :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         EMPLOYERS MUTUAL COMPANIES,     :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1803
 
         
 
              Claimant, who was 46 years old at time of her injury, 
 
         suffered a lower back injury.  Surgery was performed on two 
 
         herniated discs.  Claimant had a 10-16 percent functional 
 
         impairment and restrictions consistent with the functional 
 
         impairment.  Post-injury earnings was 50 percent higher than 
 
         pre-injury earnings.  Defendant employer accommodated claimant.  
 
         Claimant was employed by defendant employer in a stable 
 
         employment relationship.  Claimant awarded a 20 percent 
 
         industrial disability.
 
         
 
         5-4000.2
 
         
 
              Insurance carrier voluntarily paid 10 percent industrial 
 
         disability based on a functional impairment rating of 10 percent.  
 
         It was fairly debatable whether claimant was entitled to 
 
         additional compensation due to an increase of impairment rating 
 
         to 16 percent by one doctor.  Penalty benefits were denied.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BARBARA ALITZ,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 886305
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 29, 1994, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            August 18, 1988.  The record in the proceeding consists of 
 
            the testimony of the claimant and claimant's husband, John 
 
            Alitz; claimant's mother-in-law, Mary Alitz; claimant's 
 
            brother-in-law, Michael Alitz; and, joint exhibits 1 through 
 
            11.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits; and,
 
            
 
                 2.  Whether claimant is entitled to 86.13(4) penalty 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant did not relate her age, but from the medical 
 
            report she would be 52 years of age.  Claimant is a high 
 
            school graduate and worked at a nutrition store five years 
 
            prior to beginning work for defendant employer.  Claimant 
 
            did not testify as to her education or her medical history 
 
            prior to her alleged injury of August 18, 1988.
 
            
 
                 Claimant testified that on August 18, 1988, she was 
 
            working at Drug Town, which is owned by Hy-Vee Stores.  She 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            indicated that on that day 170 cases of Russell Stover candy 
 
            were delivered and it is her job to put them on the shelves 
 
            in the store.  She indicated she had to wheel them from the 
 
            back room to the front of the store and it had to be done on 
 
            that day.  She indicated she worked nine hours until about 
 
            5:30 or 6:00.  She indicated she usually gets off work 4:00 
 
            or 4:30  Claimant indicated that each case of candy weighs 
 
            about 35 to 40 pounds and she used a two-wheeler cart to 
 
            haul it.
 
            
 
                 Claimant said she had a hard time pushing the 
 
            two-wheeler under the boxes of candy and her foot couldn't 
 
            move.  She said that when she was hauling the candy earlier 
 
            that day and using a two-wheeler, her foot was working okay, 
 
            but on this particular later occasion she was having trouble 
 
            operating her foot.
 
            
 
                 Claimant said she started to go to work on August 19, 
 
            1988, and was approximately one-half block from her house 
 
            when she couldn't use her right leg at all and was afraid 
 
            she couldn't get home.  She experienced severe pain in her 
 
            back and down her leg and into her foot.  She called her 
 
            employer and then contacted the doctor who sent her to 
 
            Lutheran Hospital for x-rays. (Joint Exhibit 2)  Her x-rays 
 
            were normal other than showing a bilateral spondylolisis at 
 
            L5.  Claimant said the first day she missed was August 15, 
 
            but did not see the doctor until August 22 as she could not 
 
            get into see him any sooner.  The doctor sent her to Dr. 
 
            Boulden who prescribed traction in her home.  She also 
 
            indicated there was a black and blue bruise on her foot 
 
            above the back of the toes which went away gradually.  Her 
 
            home traction did nothing for her.
 
            
 
                 Claimant said that she couldn't lie on the bed because 
 
            of her pain and slept on the floor for several months.
 
            
 
                 Claimant had surgery on two discs in November of 1988 
 
            and then returned back to work on March 8, 1989.  Upon her 
 
            return she worked 38 hours for two weeks and then back to 40 
 
            hours, but did not work nights.  She now works in the 
 
            pharmacy where previously she was in the camera department.  
 
            Claimant indicates she does billings for third parties in 
 
            working with the pharmacist and fills out forms, etc.  She 
 
            indicated she cannot stand or sit for too long a period of 
 
            time.
 
            
 
                 Claimant stated she has to be careful as on occasions 
 
            she falls because she tends to drag her foot.  She indicated 
 
            she takes 14 to 16 Excedrin a day.
 
            
 
                 Claimant said the employer offered her working 40 hours 
 
            per week at night but claimant said she can't work at nights 
 
            because she gets fatigued and, therefore, cannot work after 
 
            5:00 or 6:00 p.m.  She said that since she was injured she 
 
            cannot work at nights now and they have therefore lessened 
 
            her hours from 40 to 38 hours a week.  Claimant said her 
 
            foot hurts and showed a lot of little veins that appeared to 
 
            come to the surface and give a discoloration to her ankle.  
 
            She pointed this out to the undersigned but frankly from the 
 
            bench to where the claimant was sitting at the witness 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            stand, the undersigned could not really see any color 
 
            differentiation from that distance.
 
            
 
                 Claimant said she cannot bend or twist or stand for 
 
            very long periods.  She said she can no longer pick up her 
 
            grandchildren and contends if she didn't have her job at Hy-
 
            vee she would have a hard time finding a job.  She 
 
            emphasized she can no longer do housework or garden work and 
 
            that before the accident she did her own housework, scrub 
 
            the floor, and had a large garden.  She indicated her 
 
            husband did no housework prior to her injury nor worked in 
 
            the garden.  Claimant said she has cramps at night and 
 
            cannot kneel.
 
            
 
                 Claimant said she gets depressed over her injury and 
 
            pain and it has affected her attitude.
 
            
 
                 Claimant contends that her injury has caused her a 75 
 
            percent decrease in her ability to earn money and that her 
 
            activities in general decreased 50 percent of what she could 
 
            do before her injury.
 
            
 
                 Claimant acknowledged that since March 9, 1989, when 
 
            she returned to work, she has had very little absenteeism.  
 
            She testified as to the various increases she has had since 
 
            she returned to work.  It appears her hourly wage at the 
 
            time of her injury was $5.50 and in January of 1994 was 
 
            $8.25 per hour.  Claimant indicated she does not ride horses 
 
            now but indicated she has taken some weekends off because of 
 
            horse shows which she attends.  Claimant said she currently 
 
            has a black and blue mark on her leg which is different than 
 
            the one she had before and is in a different place.  She 
 
            also attempted to show the undersigned that and frankly, the 
 
            undersigned did not see anything remarkable from where he 
 
            was sitting on the judge's bench with the witness sitting in 
 
            a nearby witness chair.  She contended her ankle was purple 
 
            but as indicated, the undersigned would not describe it as 
 
            purple from where he was sitting.
 
            
 
                 Mary Alitz, claimant's mother-in-law, testified that 
 
            she observed claimant prior to August 1988 and described her 
 
            various activities.  She indicated claimant was very 
 
            ambitious, was a dependable mother, did all the housework, 
 
            had a big garden, canned and did most of the yard work.  She 
 
            said that since the August 18, 1988 injury, claimant has not 
 
            been able to do the things she did before and is very 
 
            limited and that claimant's daughter and husband must now do 
 
            the housework and her husband does the yard work.  She said 
 
            claimant's attitude has changed and she has become very 
 
            nervous and knows by her observation that claimant is having 
 
            pain and is uncomfortable.  She indicated claimant sometimes 
 
            eats standing up and that lengthy rides are hard on her.
 
            
 
                 John Alitz, claimant's husband, testified.  His 
 
            testimony pretty well corroborated with the testimony of his 
 
            mother.  He indicated he does a lot now that he didn't do 
 
            previously.  He said claimant is depressed, has trouble 
 
            walking as she drags her leg.
 
            
 
                 Michael Alitz, claimant's brother-in-law, testified and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            basically corroborated the prior testimony of the family.
 
            
 
                 Joint exhibit 3 is a September 19, 1990 letter of Peter 
 
            D. Wirtz, M.D.  He opined that claimant had a 5 percent 
 
            impairment of the body as she had two disc space removed and 
 
            had a 5 percent additional impairment as she has a 
 
            persistent neurologic relating to her condition.
 
            
 
                 In April of 1994, the doctor opined that claimant's 
 
            impairment was no greater but he further stated that 
 
            claimant's back condition would allow gainful employment 
 
            with restrictions of excessive and repetitive bending, 
 
            lifting, twisting and squatting and her weight capability 
 
            would be 20 pounds.
 
            
 
                 Joint exhibit 6 is a July 18, 1990 report signed by 
 
            William R. Boulden, M.D., and Thomas W. Bower, L.P.T., which 
 
            indicates that claimant's previous rating of 10 percent must 
 
            be adjusted.  The doctor still agreed with the 10 percent 
 
            given for the discectomy at L5-S1 but additionally opined a 
 
            7 percent impairment due to the contributory effect of the 
 
            S1 changes.  Using the combined charts, the doctor opined 
 
            claimant sustained a a 16 percent impairment to the body as 
 
            a whole.
 
            
 
                 Joint exhibit 7 contains a February 22, 1994 letter of 
 
            Dr. Boulden in which he indicates that in his medical 
 
            opinion claimant is still suffering from the same problems 
 
            she had before and continues to have the same type of 
 
            symptoms and that there is little else he can do because of 
 
            the permanent changes that have occurred in the nerve.  He 
 
            further opined that surgery would not be helpful and that 
 
            the disability rating has not changed since his clinical 
 
            examination of claimant in 1990.  Joint exhibit 7 reflects 
 
            the report of the operation on November 28, 1988 in which 
 
            claimant had a hemilaminectomy on the right with discectomy 
 
            L4-5, 5-S1 with fat graft.
 
            
 
                 Joint exhibit 10 is an August 15, 1989 letter in which 
 
            defendant insurance company's adjuster wrote claimant 
 
            indicating that since Dr. Boulden opined claimant had a 10 
 
            percent industrial rating that they were going to pay her 
 
            the 10 percent.  That letter isn't as clear as it could have 
 
            been plus the undersigned finds it deceptive to the extent 
 
            that the insurance company used the word 10 percent 
 
            industrial rating.  This would lead one who is not educated 
 
            in the workers' compensation law to believe that is 
 
            claimant's extent of industrial disability.  The insurance 
 
            company should well know that impairment rating and 
 
            industrial disability are two entirely different animals and 
 
            that impairment is just one of many criteria used to 
 
            determined industrial disability.  Likewise, even if the 
 
            insurance company used 10 percent impairment it is also 
 
            quite common that usually industrial disability is not the 
 
            same as the industrial disability ultimately determined, but 
 
            to date the insurance industry has been getting by, per law, 
 
            with paying that rate based on impairment to avoid penalty 
 
            assuming all the other circumstances are present to prevent 
 
            penalty for some other reason.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Since the defendant insurance company is applying their 
 
            criteria that industrial disability and impairment rating 
 
            are synonymous, at least as to their paying benefits, in 
 
            this case 10 percent, then why don't they apply the same 
 
            rule when the July 1990 letter came out from the same 
 
            doctor, Dr. Boulden, which is also signed by a licensed 
 
            physical therapist.  Because of additional changes from this 
 
            work injury, the doctor opined claimant had a 16 percent 
 
            impairment to the body as a whole based on facts existing as 
 
            of July 1990.  It would seem the insurance company at that 
 
            point would have paid at least 6 percent more permanent 
 
            partial disability benefits or using their improper 
 
            terminology, pay claimant 16 percent "industrial 
 
            disability."  The undersigned feels that if the insurance is 
 
            going to use its often used criteria regardless of how 
 
            inaccurate it often is, then they should apply and be bound 
 
            by the same criteria when the facts change.  The undersigned 
 
            finds that they should have paid 6 percent more or 30 weeks 
 
            more of disability benefits under their "standard" used.
 
            
 
                 Peter Dwight Wirtz, M.D., testified through his 
 
            deposition on April 15, 1994, which is one week after the 
 
            doctor had written his April 8, 1994 letter (jt. ex. 3) and 
 
            two weeks before the hearing.  The doctor's deposition does 
 
            not change the conclusions issued in his letter of April 8, 
 
            1994. (Jt. Ex. 3)  The undersigned sees no need to set out 
 
            in detail any of the doctor's testimony as said report seems 
 
            to sum up his opinion and understanding of the situation.  
 
            One might add that Dr. Wirtz is known by this agency to be 
 
            ultra conservative in any rating and any determination of 
 
            injury to those claimant sent to him by defendants.
 
            
 
                 Defendants do not deny that an injury arose out of and 
 
            in the course of claimant's employment or that there is 
 
            causal connection as to some permanent disability.  The 
 
            undersigned finds that the overwhelming weight of evidence 
 
            shows that claimant does have a functional impairment and 
 
            the medical evidence shows it runs from 10 percent up to 16 
 
            percent and that claimant has some rather substantial 
 
            restrictions, one of which is a weight limit of 20 pounds 
 
            and a limitation of her standing and sitting.  The 
 
            undersigned believes that the impairment rating of Dr. 
 
            Boulden is more accurate in light of the facts and as 
 
            indicated earlier, Dr. Wirtz is considered very conservative 
 
            in any rating as far as this agency's experience.  Dr. 
 
            Boulden did not indicate any restrictions.  Dr. Wirtz did 
 
            and the undersigned believes that claimant does have 
 
            restrictions and the overwhelming medical evidence would 
 
            indicate that those are reasonable.  The undersigned also 
 
            believes that when Dr. Wirtz sets out his restrictions they 
 
            must be at least that much in light of this agency's 
 
            experience with Dr. Wirtz if he opines restrictions 
 
            concerning claimant.  Therefore, the undersigned finds that 
 
            claimant has restrictions of limiting herself to excessive 
 
            and repetitive bending, lifting, twisting and squatting and 
 
            her weight capability would be 20 pounds.
 
            
 
                 Claimant appears to have had no trouble doing her job 
 
            or doing her normal activities prior to her injury of August 
 
            18, 1988.  Claimant is 52 years of age and has only a high 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            school education.  She has no real transferable skills and 
 
            it would appear that her availability of work would be in a 
 
            job similar to her current job or even possible lesser pay 
 
            if she had to begin with a new employer.
 
            
 
                 Taking into consideration claimant's medical and work 
 
            history prior to and after her August 18, 1988 injury; her 
 
            education; the location of her injury; her healing period; 
 
            severity of her injury; her age; motivation; education; 
 
            functional impairment; and the employer accommodating 
 
            claimant, the undersigned finds that claimant has a 30 
 
            percent industrial disability.  The undersigned further 
 
            finds that although claimant has no loss of income, that is 
 
            only one criteria in determining industrial disability and 
 
            that claimant has in fact lost bodily function  and earning 
 
            capacity and is not able to do as much of the type of work 
 
            or the extent of the work she was able to do previously.  
 
            Claimant is fortunate to have the employer accommodating her 
 
            and without such accommodation, claimant would be 
 
            substantially affected as far as her ability to obtain any 
 
            meaningful employment.  The undersigned therefore emphasizes 
 
            that this industrial disability finding is based on the fact 
 
            that claimant is fully employed with the accommodating 
 
            defendant employer with no current loss of income.
 
            
 
                 The only remaining issue is whether there should be 
 
            penalty benefits.  The undersigned alluded previously to the 
 
            fact that the insurance carrier chose a criteria whereby 
 
            they paid permanent partial disability benefits based on the 
 
            functional impairment rating of Dr. Boulden per his August 
 
            15, 1989 letter.  Why they didn't pay using the same 
 
            criteria on the July 18, 1990 16 percent impairment of Dr. 
 
            Boulden and Thomas Bower, both of whom are well known to the 
 
            defendants and who not only were authorized in this case but 
 
            are commonly known as medical personnel who are accepted and 
 
            who frequently have referrals from the defendant employer 
 
            and insurance industry.  Defendants decided to have another 
 
            of their authorized doctors, the conservative Dr. Wirtz, to 
 
            come up with another rating.  As indicated earlier, from 
 
            past experience the odds are his rating would be less than 
 
            Dr. Boulden.
 
            
 
                 The undersigned finds that defendants should pay 
 
            penalty benefits to the claimant as defendants were 
 
            unreasonable and not applying the same criteria they 
 
            ultimately applied several months later using the impairment 
 
            rating to determine claimant's entitlement to permanent 
 
            partial disability benefits when there is no question about 
 
            a work injury being incurred and causal connection existing 
 
            between the impairment and work injury.  Not only did 
 
            defendants wait before they got another impairment rating, 
 
            but it is obvious in their choice that they were hoping for 
 
            and the odds were with them that they would in fact get a 
 
            lesser rating.  Dr. Boulden is by no means considered a 
 
            claimant's doctor.  In further support of the undersigned's 
 
            finding herein, joint exhibit 10 (August 15, 1989 letter by 
 
            defendant insurance carrier) shows that at that time they 
 
            accepted Dr. Boulden's previous 10 percent rating and paid 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            benefits based thereon.  Why they did not update their 
 
            payments when Dr. Boulden increased his rating is unknown to 
 
            the undersigned.  The undersigned is also concerned, as 
 
            previously mentioned, that the defendant insurance company 
 
            led the claimant to believe that the doctor gave an 
 
            industrial rating.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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 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).
 
            
 
                 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 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 Iowa Code section 86.13 permits an award of up to 50 
 
            percent of the amount of benefits delayed or denied if a 
 
            delay in commencement or termination of benefits occurs 
 
            without reasonable or probable cause or excuse.  The 
 
            standard for evaluating the reasonableness of defendants' 
 
            delay in commencement or termination is whether the claim is 
 
            fairly debatable.  Where a claim is shown to be fairly 
 
            debatable, defendants do not act unreasonably in denying 
 
            payment.  See Stanley v. Wilson Foods Corp., File No. 753405 
 
            (App. August 23, 1990); Seydel v. Univ. of Iowa Physical 
 
            Plant, File No. 818849 (App. November 1, 1989).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a work injury on August 18, 1988, 
 
            that arose out of and in the course of her employment that 
 
            caused her to have a two disc surgery and a functional 
 
            impairment and a 30 percent industrial disability.
 
            
 
                 Defendants did not act reasonably and delayed in 
 
            increasing their benefits when the criteria of their 
 
            authorized doctor upon which they originally relied was 
 
            increased and defendants failed to follow the same criteria 
 
            in providing claimant with increased benefits.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the weekly rate of one hundred forty-seven and 42/100 
 
            dollars ($147.42) beginning March 8, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties agreed that 
 
            defendants previously paid fifty (50) weeks of permanent 
 
            partial disability benefits.  They also paid some healing 
 
            period benefits but they were not in dispute and that issue 
 
            has been resolved.
 
            
 
                 Defendants shall pay claimant fifteen (15) weeks of 
 
            penalty benefits at the rate of one hundred forty-seven and 
 
            42/100 dollars ($147.42) with the interest on the penalty 
 
            benefits running from the date of filing of this decision.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            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 May, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James L Spellman
 
            Attorney at Law
 
            1300 Locust St
 
            Des Moines IA 50309
 
            
 
            Mr Frank T Harrison
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803; 5-4000.2
 
                                             Filed May 18, 1994
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BARBARA ALITZ,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 886305
 
            HY-VEE FOOD STORES, INC.,     :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
            5-1803
 
            Found claimant had a 30% industrial disability.
 
            
 
            5-4000.2
 
            Found claimant entitled to 15 weeks of penalty benefits.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
RICHARD CAMPBELL,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                       File No. 886364
 
HAWKEYE ERECTION COMPANY,    
 
                                     A R B I T R A T I O N
 
     Emploer, 
 
                                       D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL   
 
COMPANIES,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                      STATEMENT OF THE CASE
 
 
 
This case came on for hearing on February 14, 1995, at Cedar Rapids, 
 
Iowa.  This is a proceeding in arbitration wherein claimant seeks 
 
compensation for permanent partial disability benefits as a result of 
 
an alleged injury occurring on June 23, 1988.  The record in the 
 
proceeding consists of the testimony of the claimant; claimant's wife, 
 
Barbara Campbell; Kelly Dawson;  Larry Graf; joint exhibits 1 through 
 
11 and defendants' exhibits A, B and C (A consisting of two videos).
 
 
 
                          ISSUES
 
 
 
The issues for resolution are:
 
 
 
The extent of claimant's permanent disability and entitlement to 
 
disability benefits, if any.
 
 
 
                        FINDINGS OF FACT
 
 
 
The undersigned deputy, having heard the testimony and considered all 
 
the evidence finds that:
 
 
 
Claimant is 47 years old, finished the ninth grade and ultimately got 
 
his GED while in Viet Nam in the Marines.  The union in which he was a 
 
member required claimant to get a regular high school diploma, which he 
 
then ultimately did.  In June 1980, he went to the Kirkwood Community 
 
College and got an associate degree in construction technology, which 
 
trained him to manage jobs, do construction, look at prints (taking off 
 
the prints the materials that would have to be used to do the 
 
construction) and basically analyzing the job.  Claimant looked older 
 
to the undersigned than his age, but claimant's movements and activity 
 
appeared to be that of a person younger than his age.  Claimant knelt 
 
while testifying rather than sitting in the chair, as he indicated he 
 
couldn't sit in the witness chair because of his back.  When not 
 
testifying, claimant sat near the back of the courtroom on the floor 
 
with his legs stretched out and his back against the wall.  On 
 
occasions he moved around rather swiftly, either to talk to his 
 
attorney or to get up and down from his position on the floor.  
 
Claimant seemed to perform this type of action with ease and with no 
 
restraint, no hesitancy and no pain.
 
 
 
Claimant went over his medical history prior to June 23, 1988.  He 
 
related certain incidences of injuries but contended there was no 
 
continuing problem resulting therefrom.
 

 
 
 
 
 
 
 
 
 
Claimant related an incident around July 9, 1993, in which he hurt his 
 
shoulder.  He related the medical care and physical therapy and 
 
contended that he continues to do the exercises that were recommended 
 
at the physical therapy.  He indicates his shoulder is okay.  
 
 
 
Claimant related his work history as an iron worker.  He is a 
 
journeyman reinforcing person.  Although he did some steelwork in July 
 
1967, on a 30-day leave from Viet Nam, he did not receive his union 
 
card until September 1971.  Because of his dad and step-grandfather 
 
being iron workers, he began his iron work and did not go through the 
 
apprentice step.  He indicated he did not have to because there was so 
 
much work to do.  If he had gone through the apprentice procedure he 
 
would have had a journey book and be able to do all types of iron work. 
 
 
 
 As it is now, he can only do the limited iron work like being a 
 
reinforcing person.  He indicated there was no problem working as long 
 
as he worked out of his own local.  He indicated he had worked for 
 
approximately the last eight years for the defendant, but has not 
 
always been steady as it depended on the number of jobs.  Some years 
 
were better than others.
 
 
 
He described the re-bars or rods that would have to be lifted, which 
 
varied in weight and size depending on the situation.  He referred to 
 
joint exhibit 10.  
 
 
 
Claimant described how he injured himself on June 23, 1988, and how he 
 
felt as a result of this injury and fall on that date.  Claimant 
 
testified as to the medical attention he obtained.
 
Claimant quit the defendant employer in September 1989, contending that 
 
he couldn't do the work any more, as he was taking more pain pills, up 
 
to three times a day.  He has done no iron work since then, but related 
 
some work he has done like telemarketing.  Claimant went to Kirkwood 
 
Community College and completed a construction technology course in May 
 
1992.  (Joint Exhibit 6, page 35)
 
 
 
Claimant referred to joint exhibit 7, as to the various jobs at which 
 
he applied for work or sent out resumes.  He indicated he had a few 
 
interviews but no job offers.  These were in the construction area.  He 
 
testified as to other areas of work in which he sought employment, 
 
including Pizza Hut, Hardies, etc.  He contends he is still in a lot of 
 
pain.  He swims about one and one-half miles a day, five times a week, 
 
one to one and one-half hours per day.  He says he has a problem 
 
standing, his foot goes numb and he has a pain in the low back area.  
 
He contends because of his injury that he now waddles when he walks.  
 
He indicated that his seat in his car is broken and he drives it.  He 
 
indicated that with his seat broken it helps him drive, rather than if 
 
the seat was not broken.  It was hard for the undersigned to imagine 
 
this situation and how such a condition could help the claimant rather 
 
than do him harm.  
 
 
 
Claimant has seen the video that was taken on June 6, 1994, which 
 
claimant seemed to down play the same.  He acknowledges he has a boat 
 
but doesn't fish much more than maybe three or four times a year.  He 
 
indicates his boat has a seat that is anchored to the boat and that he 
 
has trouble sitting.  He acknowledged that he told the vocational 
 
counselor that he could not pull anything and that he has trouble 
 
bending and climbing.  He last saw Dr. R. F. Neiman, M.D., in December 
 
but that was before Dr. Neiman had seen the video tape.
 
 
 
Mr. Kelly Dawson, an investigator, testified as to his investigation of 
 
the claimant after his company was hired by the defendant.  He 
 
described the various videos it seems he took of the claimant and the 
 
various things that he saw claimant doing; of course, the videos will 
 
also speak for themselves.
 
 
 
Larry Graf has owned the defendant corporation since 1972.  He has 
 
known the claimant since the late 70's or early 80's.  He also knew 
 
claimant's dad as an iron worker.  He told the claimant when he 
 
returned to work that he could work at his own pace, doing things as he 
 
felt he could do and left it up to the claimant as to how long he could 
 
work.  He said he knew claimant's restrictions.  He told the claimant 
 
that if claimant needed help with his work or what he was doing he 
 
could hire someone to help.  It appears from the testimony that 
 
claimant had also gotten someone to help him earlier.  Mr. Graf 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
indicated he has people working with disabilities including one with an 
 
artificial leg, and another with a fractured vertebra who wears a 
 
brace.  He says he has work available for people with a 20 to 30-pound 
 
weight limit.
 
 
 
He was familiar with how claimant walked before he was injured and 
 
indicated that he walks the same now as he did then.  He indicated he 
 
always waddled.  He has seen the videos that were taken and he 
 
emphasized claimant could continue working for him if he wanted.  He 
 
said an iron worker now is making approximately $22.00 per hour and 
 
that if claimant had continued working he would be working at that 
 
rate.  He emphasized that he did not ask claimant to leave and he would 
 
have continued to have claimant work for him if the work was there to 
 
do.
 
 
 
After the defendant rested, claimant was recalled concerning the video, 
 
etc.  Claimant tried to explain away what was evident on the video or 
 
what the investigator observed.  Claimant's wife was then called in 
 
rebuttal.  Although claimant said he never waddled before his injury, 
 
his wife said he always waddled; but that he is walking a little 
 
different now.  She contends he would be doing iron work now if he 
 
could.  The undersigned might add that in various places in the 
 
testimony of the claimant and his wife, the undersigned was not 
 
impressed with the testimony.  He sees credibility as being a 
 
considerable issue in this case.  Claimant moved and hopped around the 
 
courtroom from standing, to sitting, to crawling with great agility.  
 
He would sit against the wall with feet out in front of him, but on 
 
various occasions would hastily jump up and crawl a few feet to talk to 
 
his attorney and then go back into the similar position.
 
 
 
A December 15, 1988 report of the Spine Diagnostic and Treatment Center 
 
resulting from a functional capacity evaluation reflects that Dr. 
 
Ernest M. Found, Jr., M.D., felt that claimant's back situation was 
 
essentially stabilized and that there was no continued serious, acute 
 
process going on.  The compression fractures at lumbar 2 and 3 
 
vertebras essentially have healed.  Physical rehabilitation would be 
 
the answer to his goals in returning to full-time employment.  (Jt. Ex. 
 
2A, p. 13)
 
 
 
Claimant completed the rehabilitation program for chronic low back pain 
 
and was given some temporary lifting limits which should improve as 
 
claimant was to continue his exercise and aerobic activity.  Thirty 
 
pounds repetitive lifting was one of the restrictions.  This March 3, 
 
1989, report also indicated that claimant was within his capabilities 
 
to try and return to iron work as a temporary situation.  At that time 
 
they could not support the fact that he was unable to return to any 
 
type of gainful iron work or construction activity.  The compression 
 
fracture was completely healed and that situation would not impede his 
 
ability to return to an active and normal lifestyle.  (Jt. Ex. 2A, p. 
 
18-20)
 
 
 
In June 1989, claimant was working two to five hours per day attempting 
 
to work towards an eight hour schedule.  Said report indicates that the 
 
diagnostic clinic continues to support full-time employment for 
 
claimant and felt he was capable of such.  (Jt. Ex. 2A, p. 25)
 
In looking at Dr. R. F. Neiman's records, it appears that the doctor 
 
had substantial restrictions on the claimant and seemed to be impressed 
 
with his medical or disability condition.  The doctor then was shown 
 
the surveillance tape and that obviously had a big effect on the 
 
doctor's opinion; he did substantial modification, substantially 
 
amending claimant's restrictions.  It is obvious also from the record 
 
that the claimant and claimant's attorney were surprised by the 
 
surveillance tape and seemed to talk to the doctor as to returning back 
 
to his prior opinions.
 
 
 
The undersigned might add that he can see where the doctor was 
 
concerned and would modify his prior opinions.  After not only seeing 
 
the video tape and witnessing the actions of the claimant in court, the 
 
undersigned has severe questions as to this claimant's real condition 
 
and ability to work, as the claimant seeks to be determined to be 
 
totally disabled.  (Jt. Ex. 4A, pp. 20-20a)
 
 
 
On January 17, 1995, Dr. Neiman opined that claimant had a 10 percent 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
impairment as a result of his June 23, 1988 injury with the defendant 
 
employer and had an acute compression fracture of the L2 level.  His 
 
restrictions are reflected in the December 23, 1994 office record.  
 
(Jt. Ex. 4A, pp. 20-20a)  
 
 
 
Dr. Neiman's testimony that he gave in another lawsuit involving this 
 
claimant as the plaintiff against a third party, is represented by 
 
joint exhibit 4B.  One must look at the most current reports of the 
 
doctor to get a more accurate picture of claimant's current situation.  
 
The undersigned might also add that this agency's experience would 
 
indicate that Dr. Neiman is known to be a doctor whose services are 
 
sought out by claimants.
 
 
 
Joint exhibit 5A are the vocational rehabilitation records of a Kent 
 
Jayne, who, it appears, was initially hired by the claimant in regard 
 
to the third party litigation.  The undersigned sees nothing in that 
 
report concerning the employer's willingness to accommodate claimant 
 
and his actual accommodation before claimant quit.  Mr. Jayne concluded 
 
that he didn't think claimant was competitively employable.  Mr. Jayne 
 
also testified in the third party action in the District Court for 
 
Johnson County (which transcript is joint exhibit 5B) with the jury 
 
trial being August 20, 1993.  The record is obvious that claimant has 
 
been in substantial litigation over a period of time involving 
 
different courts or venues.  In joint exhibit 6, page 3 it is of 
 
interest in the area of litigation financial in which the report 
 
indicates that claimant anticipated recontacting the same lawyer if he 
 
runs into any problems with questioning the feasibility of returning to 
 
his old job and if this has an impact on his workers' compensation or 
 
settlement amount.  The undersigned is pointing this out in that the 
 
undersigned has felt, in hearing the testimony and reviewing this 
 
evidence, that once the litigation is over this claimant may have more 
 
incentive to try to work and to get a job.  It is unfortunate he didn't 
 
continue working at the job he had under the circumstances in which the 
 
employer was willing to accommodate him.  There are very few jobs 
 
paying that much.  Even if claimant worked a few hours a day he would 
 
have made substantially more than he is making now, and substantially 
 
more than he would working at a full-time job at the minimum wage or 
 
$5.00 for which he anticipates he could work or which would be the most 
 
he could get if working at some other job.  
 
 
 
There is mention in the record that in around August or September 1992, 
 
claimant stepped out in front of a car and was knocked unconscious but 
 
contends that there was no negative residuals from this accident.  It 
 
also has been reflected in various places in the record that claimant 
 
has an asthmatic condition and that certain fumes and dust aggravates 
 
that.  That is not an issue herein, nor is there any evidence that the 
 
work caused claimant asthmatic condition.  It is obvious that if 
 
claimant stays away from such sources that he would not be bothered by 
 
his asthma for which he is taking medication.  (Jt. Ex. 6, pp. 17, 
 
21-22)
 
 
 
Claimant has been out of work for a considerable period of time.  
 
During this time he has obtained additional education.  Claimant has 
 
produced records showing he has attempted to find work.  It would also 
 
appear that claimant has related his physical condition at least 
 
regarding some of the places at which he sought employment.  Although 
 
the Americans With Disabilities Act was not in effect during some of 
 
those earlier job seeking efforts, the claimant does not appear to be 
 
now aware of the fact that he need not disclose his alleged physical 
 
disabilities or complaints before he is offered a job.  The undersigned 
 
believes this could make a big difference in the claimant obtaining 
 
employment.
 
 
 
Claimant has received 225 weeks of permanent partial disability 
 
benefits at $377.58 a week, which would amount to a 45 percent 
 
permanent partial disability.  Obviously, claimant is seeking more and 
 
it appears he feels he is totally disabled.  Taking all the evidence 
 
into consideration, the demeanor and actions of this claimant, the 
 
undersigned finds that this claimant has been already compensated 
 
adequately for the extent of his June 23, 1988 work injury and is 
 
entitled to no more workers' compensation benefits on the current 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
status of the record.  The undersigned believes that when this 
 
litigation ends claimant may have more incentive to work and obtain a 
 
job.  The undersigned emphasizes again that the employer was willing to 
 
accommodate and was accommodating claimant and he quit.  Although he 
 
claims he quit because of pain, it is not unusual for an iron worker, 
 
after a day of work, to have aches and pains even though one would not 
 
have an injury.  For the amount of hourly pay an iron worker gets, 
 
particularly when they are a union member as claimant was, one should 
 
endure some pain in order to receive the amount of pay an iron worker 
 
gets.  Claimant has been paid based on a 45 percent industrial 
 
disability and would expect to have some residuals because of that 
 
extent of an industrial disability.  Claimant is young and it is of no 
 
benefit of the claimant to linger around and further lose his incentive 
 
to work.  Claimant obviously can endure pain, if pain he has, in his 
 
driving, fishing and other activities.  It would be much better for the 
 
claimant to attempt to put such effort into employment.  He has done 
 
well when he has taken up some additional educational endeavors.  
 
Taking into consideration claimant's pre- and post-medical history, 
 
work history, education, the nature of injury, the extent of his 
 
impairment, any restrictions, his motivation, location and severity of 
 
his injury, his age and the employer's willingness to accommodate 
 
claimant and claimant's in fact, ending up quitting work, the 
 
undersigned finds that claimant has been compensated already to the 
 
extent of his industrial disability.  As already stipulated claimant 
 
has received 225 weeks of permanent partial disability benefits, which 
 
would be a 45 percent industrial disability.
 
 
 
                       CONCLUSIONS OF LAW
 
 
 
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).
 
 
 
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 disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of 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.
 
 
 
It is further concluded that claimant has a 45 percent industrial 
 
disability and has already been adequately compensated in the amount of 
 
a 45 percent industrial disability or 225 weeks of permanent partial 
 
disability benefits at the rate of $377.58 and is entitled to no more 
 
compensation.  Claimant therefore, takes nothing further on this case.
 
 
 
                               ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Claimant takes nothing further in this case.
 
 
 
The costs are equally divided among the parties.
 
 
 
Signed and filed this _____ day of March, 1995.        
 
                             ______________________________          
 
                             BERNARD J. O'MALLEY      
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr. Thomas Wertz
 
Attorney at Law
 
4089 21st Ave SW STE 114
 
Cedar Rapids, Iowa  52404
 
 
 
Mr. Steven E. Ort
 
Attorney at Law
 
121 West Main Street 
 
New London, Iowa 52645
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                   5-1803
 
                                   Filed March 28, 1995
 
                                   BERNARD J. O'MALLEY
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
RICHARD CAMPBELL,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                       File No. 886364
 
HAWKEYE ERECTION COMPANY,    
 
                                    A R B I T R A T I O N
 
     Employer, 
 
                                       D E C I S I O N
 
and       
 
          
 
EMPLOYERS MUTUAL   
 
COMPANIES,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
5-1803
 
Found claimant is not entitled to any more than the 225 weeks of 
 
permanent partial disability paid at $377.58 per week.  Claimant took 
 
nothing further.
 
 
            
 
            
 
            
 
            
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY REIFENSTAHL,            :
 
                                          :
 
                 Claimant,                :    File No.  886573
 
                                          :
 
            vs.                           :  A R B I T R A T I O N
 
                                          :      
 
            SECOND INJURY FUND OF IOWA,   :     D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Jerry 
 
            Reifenstahl, claimant, against the Second Injury Fund of 
 
            Iowa, defendant, for benefits as the result of an injury 
 
            that occurred on May 20, 1988, and an alleged previous 
 
            injury which occurred on April 28, 1976.  A hearing was held 
 
            in Cedar Rapids, Iowa, on November 19, 1991.  Claimant was 
 
            represented by Philip Vonderhaar.  Defendant was represented 
 
            by Steven K. Young.  
 
            
 
                 The record consists of the testimony of Jerry 
 
            Reifenstahl, claimant; and joint exhibits 1 through 21, 23 
 
            and 25 through 27.  
 
            
 
                 Defendant objected to joint exhibit 22 for the reason 
 
            claimant's counsel failed to give timely notice of an expert 
 
            witness.  Claimant resisted the objection.  Defendant's 
 
            objection was sustained and joint exhibit 22 was not 
 
            admitted into evidence.  The exhibit was received as an 
 
            offer of proof at the request of claimant (transcript pages 
 
            3-12).  
 
            
 
                 The deputy excluded joint exhibit 24, a deposition of 
 
            claimant, for the reason that claimant was present in court 
 
            to testify at the time of the hearing.  Both parties were 
 
            offered the opportunity of using the deposition in 
 
            cross-examination or redirect examination, but neither 
 
            attorney chose to do so (tr. pp. 26-28).  
 
            
 
                 Defendant objected to the live testimony of Dennis 
 
            Colvin for the reason that claimant did not give timely 
 
            notice of the witness.  Claimant resisted the objection.  
 
            The deputy sustained the objection and excluded the live 
 
            testimony of Dennis Colvin, but claimant was permitted to 
 
            make an offer of proof on the record out of the presence of 
 
            the deputy (tr. pp. 12-24).
 
            
 
                 Both attorneys submitted a brief written description of 
 
            disputes at the time of the hearing.  The deputy ordered a 
 
            transcript of the hearing.  Both attorneys submitted 
 
            excellent posthearing briefs. 
 
            
 
                               PRELIMINARY MATTERS
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Claimant filed two petitions on the same day, alleging 
 
            two different causes of action which occurred on the same 
 
            injury date and both actions were designated as file number 
 
            886573.  At the time of the hearing, claimant dismissed the 
 
            petition alleging a subsequent right hand/arm injury on May 
 
            20, 1988, and a previous left hand injury in 1965 and 1968.  
 
            This decision determines the rights and liabilities of the 
 
            parties on the remaining petition which alleges a subsequent 
 
            left hand/arm injury on May 20, 1988, and a previous right 
 
            arm injury on April 28, 1976 (tr. pp. 24-26).
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated: (1) that an employer-employee 
 
            relationship existed at the time of the injury; (2) that 
 
            claimant sustained an injury on May 20, 1988, that arose out 
 
            of and in the course of employment with employer; (3) that 
 
            the commencement date of permanent partial disability 
 
            benefits is December 8, 1989; and (4) that the rate of 
 
            compensation, in the event of an award, is $201.30 per week.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained a previous injury on April 
 
            28, 1976, to his right hand or arm;
 
            
 
                 Whether that injury, if any, was the cause of permanent 
 
            disability;
 
            
 
                 Whether the injury of May 20, 1988, to his left hand or 
 
            arm was the cause of permanent disability; and
 
            
 
                 Whether the Second Injury Fund of Iowa is liable to 
 
            claimant for any benefits pursuant to Iowa Code section 
 
            85.64, and if so, the extent of benefits for which it is 
 
            liable.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                          previous injury-April 28, 1976
 
            
 
                 It is determined that claimant sustained an injury on 
 
            April 28, 1976, to his right hand and arm which arose out of 
 
            and in the course of employment with employer and that the 
 
            injury was the cause of permanent impairment and disability.
 
            
 
                 Claimant's testimony; the records of Iowa 
 
            Musculoskeletal Center, P.C., exhibit 2; the reports of 
 
            Leland Hawkins, M.D., exhibit 3; the report of James 
 
            LaMorgese, M.D., exhibit 4, page 11; the report of Richard 
 
            F. Neiman, M.D., exhibit 6, page 1; the reports of James H. 
 
            Dobyns, M.D., of the Mayo Clinic, exhibit 11, pages 1 
 
            through 4; the reports of Walter J. Hales, M.D., exhibit 13, 
 
            pages 7 through 11; and the report of C.B. Lake, M.D., 
 
            exhibit 16; all verify that claimant injured his right wrist 
 
            on April 28, 1976, and this injury resulted in a fusion of 
 
            his right wrist at the Mayo Clinic.  There is no evidence to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the contrary.  Defendant did not dispute this injury.  
 
            
 
                 Dr. Dobyns at the Mayo Clinic recorded on September 2, 
 
            1977,  that claimant fell approximately six feet off a dock 
 
            onto his outstretched right hand on April 28, 1976, while at 
 
            work.  A fusion of the right wrist was performed in December 
 
            of 1976 which included (1) removal of posttraumatic loose 
 
            body; (2) reduction of posttraumatic instability with 
 
            maintenance by tendon graft reconstruction and temporary 
 
            internal stabilization with multiple (two) Kirschner wires; 
 
            and (3) partial radial styloidectomy.  Postsurgery, claimant 
 
            developed an infection which complicated his recovery and 
 
            increased his impairment (exhibit 11, pages 1-3).  
 
            
 
                 On December 20, 1977, Dr. Dobyns estimated that 
 
            claimant sustained a 35 percent permanent impairment to his 
 
            right upper extremity.  As for restrictions, he stated that 
 
            heavy or repetitive use of his right hand should be avoided 
 
            (ex. 11, p.4).
 
            
 
                 Claimant did return to work in September of 1987 and 
 
            continued to work as a checker within his restrictions until 
 
            the second injury on May 20, 1988.  
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury on April 28, 1976, to his right hand and arm which 
 
            arose out of and in the course of employment with employer 
 
            and that the injury was the cause of permanent impairment 
 
            and disability.
 
            
 
                            second injury-may 20, 1988
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury on May 20, 1988, that arose out of and in the course 
 
            of employment with employer.
 
            
 
                 Even prior to the selected injury date of May 20, 1988, 
 
            claimant voiced bilateral upper extremity symptoms to Dr. 
 
            Hales on October 5, 1987, and again after the selected 
 
            injury date on May 23, 1988 (ex. 2, pp. 4 & 5).  Claimant 
 
            was actually examined by L. Remeika, M.D., on May 20, 1988.  
 
            Dr. Remeika summarizes and confirms the work-related health 
 
            history of claimant to include the injury of April 28, 1976, 
 
            discussed in the previous section of this dicision.  Dr. 
 
            Remeika stated:
 
            
 
                    He is a 50 year old employee who comes in 
 
                 because he has pain in his right wrist.  Patient 
 
                 has a very complicated past history.  He lost 
 
                 three fingers on his left hand years ago.  Several 
 
                 years ago in the right arm he fractured the 
 
                 navicular, which apparently resulted in a serious 
 
                 forearm infection with osteomyelitis.  Had an 
 
                 apparent fusion of the radius and ulna.  Since 
 
                 that time he has had difficulty in moving the arm, 
 
                 especially the wrist in flexion or extension with 
 
                 only approx. 5o in each direction.  He started back 
 
                 to work in 9/87 on a light duty job, which is the 
 
                 only thing he is allowed to do.  He works in the 
 
                 cold cuts room and moves his wrist up and down to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 weigh the coldcuts [sic].  He does this repeatedly 
 
                 all day; works about 25 hrs. a week.
 
            
 
            (exhibit 12, page 1)
 
            
 
                 With respect to the injury of May 20, 1988, Dr. Remeika 
 
            referred claimant to Dr. Hales on May 23, 1988.
 
            
 
                 On June 1, 1988, Dr. Hales performed a release of the 
 
            ulnar and median nerves on the right wrist (ex. 13, p. 1).  
 
            On October 12, 1988, Dr. Hales resected a left ulnar artery 
 
            aneurysm; performed an interposition vein graft; and 
 
            performed a prophylactic carpal and Guyon's canal release 
 
            (ex. 13, p. 2).
 
            
 
                 In rating the right hand carpal tunnel and ulnar tunnel 
 
            condition, Dr. Hales stated that claimant was entitled to a 
 
            5 percent permanent impairment of the right upper extremity 
 
            because of sensory deficit.  His loss of range of motion and 
 
            grip strength was due to the prior right wrist fusion that 
 
            occurred as a result of the injury on April 28, 1976 (ex. 
 
            13, p. 9).  Dr. Hales determined that claimant was entitled 
 
            to a 5 percent permanent impairment for the surgery 
 
            performed to correct the left little finger aneurysm (ex. 
 
            13, p. 10).
 
            
 
                 Claimant and employer entered an agreement for 
 
            settlement which was approved on July 3, 1990.  In this 
 
            document, the parties agreed that claimant sustained a 
 
            bilateral disability which should be compensated under Iowa 
 
            Code section 85.34(2)(s) and the Simbro v. Delong's 
 
            Sportswear, 332 N.W.2d 886 (Iowa 1983) decision. 
 
            
 
                 In this settlement agreement, the parties agreed that 
 
            claimant was entitled to 30 weeks of permanent partial 
 
            disability benefits for the injury of May 20, 1988 (ex. 26, 
 
            p. 2).
 
            
 
                 With respect to the right wrist fusion which occurred 
 
            as a result of the April 28, 1976, previous injury, Dr. 
 
            Hales determined that claimant sustained a 5 percent 
 
            permanent impairment of the upper extremity due to half of 
 
            the loss of the dorsiflexion of his right wrist and another 
 
            5 percent permanent impairment of the right upper extremity 
 
            for loss of half of the volar flexion of his right wrist.  
 
            Dr. Hales concluded, "In other words, there is a total of 
 
            10% impairment of that [right] upper extremity secondary to 
 
            loss of wrist motion because of subsequent infection and 
 
            necessary partial intercarpal arthrodesis done by the Mayo 
 
            Clinic." (ex. 13, p. 10).  
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury on May 20, 1988, to both hands and both arms, which 
 
            arose out of and in the course of employment with employer 
 
            which resulted in both permanent impairment and permanent 
 
            disability.
 
            
 
                 Defendant contends in its hearing brief and in argument 
 
            that an injury under Iowa Code section 85.34(2)(s) is one 
 
            injury and cannot be the basis of a claim against the Second 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Injury Fund because there is no separate injury.  This is 
 
            not correct.  An injury which occurs simultaneously or 
 
            nearly simultaneously to two members can be the basis as a 
 
            separate injury for a claim against the Second Injury Fund.  
 
            Saylor v. Swift and Company, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner, 282, 285 (1979).  Claimant 
 
            Saylor had a prior loss to his left leg and his second 
 
            injury involved both legs.  The decision held, "Nothing in 
 
            section 85.64 bars the applicability of the statute if the 
 
            injury happens to be two such members."  Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice, section 17-4, 
 
            footnote 4, page 143.  
 
            
 
                         liability of second injury fund
 
            
 
                 It is determined that claimant has met the threshold 
 
            requirements for a claim against the Second Injury Fund of 
 
            Iowa because claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that he sustained an injury to 
 
            his right hand and arm on April 28, 1976, as the previous 
 
            injury, and he sustained a second injury to both hands and 
 
            arms on May 20, 1988, under Iowa Code section 85.34(2)(s), 
 
            Saylor, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 282, 285 (1979); and each of these injuries 
 
            separately resulted in permanent impairment and disability.  
 
            Iowa Code section 85.64; Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 17-5 at page 143.
 
            
 
                 It is further determined that claimant has sustained an 
 
            industrial disability from the combined effect of the two 
 
            injuries of 35 percent to the body as a whole and is 
 
            entitled to 175 weeks of permanent partial disability 
 
            benefits; minus 25 weeks, which is the value of the previous 
 
            injury of April 28, 1976, based upon a 10 percent permanent 
 
            impairment of the right upper extremity as determined by Dr. 
 
            Hales; and minus 30 weeks, as the value of the second 
 
            scheduled member injury, based upon the agreement for 
 
            settlement in the amount of weeks that claimant was paid and 
 
            did receive for this injury of May 20, 1988.  Thus, the net 
 
            liability of the Second Injury Fund of Iowa is 120 weeks 
 
            (175 weeks minus 25 weeks minus 30 weeks equals 120 weeks).
 
            
 
                 Claimant, born April 29, 1938, was almost 50 years old 
 
            at the time of the second injury.  Claimant's industrial 
 
            disability is increased because the injury occurred near the 
 
            peak point of his earnings career.  A disabling injury at 
 
            age 50 results in a greater loss of earnings than it would 
 
            for an older or younger employee.  Becke v. Turner-Busch, 
 
            Inc., Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 34 (Appeal Decision  1979);                                                                                                                                                                                               
 
            Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
            Report 426 (1981); McCoy v. Donaldson Company, Inc., file 
 
            numbers 782670 & 805200 (Appeal Decision 1989).  
 
            
 
                 Claimant has a high school education which increases 
 
            his employability.  Claimant is capable of retraining in 
 
            sedantary work if he develops a motivation to do so.  Conrad 
 
            v. Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Claimant has demonstrated no motivation for further 
 
            employment.  He has made no job search of any kind.  His 
 
            motivation is possibly influenced by the fact that he 
 
            receives $863 per month in social security disability 
 
            benefits and another $261.36 per month in a disability 
 
            pension from employer.  This is a total monthly income of 
 
            $1,124.36.  If he engaged in productive employment he would 
 
            probably lose his social security disability benefits.  The 
 
            vocational rehabilitation counselor that claimant talked to 
 
            found that he had no motivation to return to work.
 
            
 
                 Claimant's rejection of vocational rehabilitation 
 
            assistance and his failure to seek it out on his own accord 
 
            with the State of Iowa or otherwise, is a factor which does 
 
            not increase the amount of his industrial disability, but 
 
            rather tends to decrease it.  McKelvey v. Dubuque Packing 
 
            Co., Thirty-third Biennial Rep., Iowa Indus. Comm'r 227 
 
            (1976), Rapp v. Eagle Mills, Inc., Thirty-fourth Biennial 
 
            Rep., Iowa Indus. Comm'r 264 (1979); Curtis v. Swift 
 
            Independent Packing, IV Iowa Industrial Commissioner Report 
 
            88 (1984).
 
            
 
                 It is difficult to determine the precise amount of 
 
            claimant's industrial disability because of his failure to 
 
            attempt any employment in the competitive employment market.  
 
            Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial 
 
            Commissioner Report 334, 336 (1981).  An employee seeking 
 
            workers' compensation would do well to make a diligent 
 
            attempt to find employment.  Hild v. Natkin & Co., I Iowa 
 
            Industrial Commissioner Report 144 (Appeal Decision 1981); 
 
            Beintema v. Sioux City Engineering Co., II Iowa Industrial 
 
            Commissioner Report 24 (1981); Cory v. Northwestern States 
 
            Portland Cement Company, Thirty-third Biennial Report of the 
 
            Industrial Commissioner 104 (1976).  Claimant's failure to 
 
            cooperate with the vocational rehabilitation evaluator and 
 
            to lose weight as recommended by physicians, are factors 
 
            which tend to show lack of motivation and therefore, reduce 
 
            industrial disability.  McDonald v. Pulley Freight Lines, 
 
            I-1 Iowa Industrial Commissioner Decisions 148 (1984);  
 
            Erickson v. Iowa Beef Processors, I-4 Iowa Industrial 
 
            Commissioner Decisions 821 (App. Dec. 1985); Larkin v. 
 
            Newport St. Paul Cold Storage, I-4 Iowa Industrial 
 
            Commissioner Decisions 945 (1985).
 
            
 
                 Employers are responsible for the reduction in earnings 
 
            capacity caused by the injury, they are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Claimant's apparent retirement is another factor that 
 
            can be taken into consideration which tends to reduce 
 
            industrial disability.  Swan v. Industrial Engineering 
 
            Equipment Co., IV Iowa Industrial Commissioner Report 353 
 
            (1984); Houseman v. Mid-America Lines, Inc., I-4 Iowa 
 
            Industrial Commissioner Decision 888 (App. Dec. 1985); 
 
            McDonald v. Dubuque Packing Co., I-1 Industrial 
 
            Commissioner Decisions 152 (1984); Card v. H & W Motor 
 
            Express Co., II-1 Iowa Industrial Commissioners 292 (1984); 
 
            Vogel v. Dicksons Wholesale Meats, Inc., II-1 Iowa 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Industrial Commissioner Decisions 324 (1984).
 
            
 
                 At the same time, claimant's lack of motivation and 
 
            retirement are caused in large part by the fact that the 
 
            employer had no work which claimant could do.  If employer 
 
            had absolutely no work which this career employee could 
 
            perform within his restrictions, it is evidence of a 
 
            substantial industrial disability.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980); Pigneri v. 
 
            Ringland-Johnson-Crowley, file number 838742 (App. Dec. 
 
            1991).
 
            
 
                 Employer told claimant they had no work he could do 
 
            within his restrictions.  Refusal of an employer to employ 
 
            an injured employee is strong evidence of lack of 
 
            employability.  Professor Larson makes a point which applies 
 
            to this particular case, "At the outset, one might suppose 
 
            that the refusal of defendant-employer himself to employ the 
 
            claimant would be the strongest kind of evidence against 
 
            that employer."  Then he asserts what as a practical matter 
 
            ought to be obvious, "It is hardly necessary to labor the 
 
            inconsistency of permitting an employer to fire a man for 
 
            physical defects caused by his own employment conditions, 
 
            and then to disclaim compensation liability by presenting 
 
            medical evidence that the man is not really disabled after 
 
            all."  2 Larson, Workmen's Compensation Law, section 
 
            57.61(b) at pages 10-173 and 10-176.
 
            Dr. Hales and a number of other doctors, stated that 
 
            claimant was foreclosed from his previous employment.  
 
            Michael v. Harrison County, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 218, 220 (Appeal Decision 
 
            January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I 
 
            Iowa Industrial Commissioner Report 282 (1984).  Before 
 
            placing too much emphasis on claimant's apparent forced 
 
            retirement and lack of motivation, it should be remembered 
 
            that claimant was a career employee of this employer for a 
 
            total of 24 years from 1964 to 1988.  Also, even though 
 
            employer employed some 1500 people, they could not find any 
 
            work claimant could do, but rather offered him a disability 
 
            income pension.  Claimant's prior employments have been 
 
            manual labor-types of employments and sales-types of 
 
            employments.  Claimant is obviously foreclosed from manual 
 
            labor-types of employment because various functional 
 
            capacity examinations as well as Dr. Hales recommended 
 
            against heavy work and lifting more than 20 pounds.  At the 
 
            same time, claimant has had numerous sales positions and 
 
            there appears to be no reason why he could not engage in 
 
            sales activities if he chose to do so.  Claimant contends 
 
            that he is limited in writing with his dominant right hand 
 
            because of the right wrist fusion and the carpal tunnel and 
 
            ulnar tunnel incisions.  Sales persons are usually required 
 
            to write up orders and other items of business.  Claimant 
 
            complained of much tenderness, numbness and loss of feeling 
 
            in his upper extremities.  Claimant demonstrated that the 
 
            surgical incision on his left wrist goes up into his arm by 
 
            approximately two inches.  
 
            
 
                 Claimant has been able to perform his house work and 
 
            yard work at home.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Claimant admitted that he has made no attempt 
 
            whatsoever to find any employment.  
 
            
 
                 Wherefore, based upon () the seriousness of the injury 
 
            to his right arm and hand that resulted in a fusion and left 
 
            his right upper extremity sensitive to heat and cold and 
 
            restricted him from heavy lifting;() the seriousness of the 
 
            second injury and the multiple nature of the injury and the 
 
            surgeries; () the impairment ratings issued by the doctors; 
 
            () the restrictions imposed on claimant's ability to work; 
 
            () the fact that claimant is foreclosed from his career 
 
            employment of 24 years for employer or its successors; () 
 
            claimant's good work ethic prior to the second injury; () 
 
            the fact that employer has no work that claimant can do out 
 
            of 1500 jobs for a career employee of 24 years; () the fact 
 
            that employer voluntarily arranged for claimant to receive a 
 
            disability pension; () the fact claimant has demonstrated no 
 
            motivation to work; () the fact that there are sedentary or 
 
            sales jobs that claimant could possibly perform if he had 
 
            the motivation to do so; () the fact that claimant is 
 
            retired with two disability income checks that total 
 
            $1,124.36; () all of the foregoing factors; () and based 
 
            upon all of the factors used to determine industrial 
 
            disability; Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (Appeal 
 
            Decision March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985); and 
 
            () based upon agency expertise [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 35 percent industrial disability to the body as 
 
            a whole and is entitled to 175 weeks of permanent partial 
 
            disability benefits minus the value of the previous injury 
 
            of 25 weeks and the value of the second injury of 30 weeks 
 
            which claimant was paid and did receive.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
         
 
              That claimant sustained a previous injury to his right hand 
 
         and arm on April 28, 1976, which arose out of and in the course 
 
         of employment with employer;
 
         
 
              That the injury of April 28, 1976 was the cause of permanent 
 
         impairment and disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 
 
         296 18 N.W.2d 607 (1945).
 
         
 
              That claimant sustained a second injury on May 20, 1988, to 
 
         his left hand and arm within the context of the words "caused by 
 
         a single accident" of Iowa Code section 85.34(2)(s) which arose 
 
         out of and in the course of employment with employer; Himschoot 
 
         v. Montezuma Manufacturing, file numbers 672778 and 738235 
 
         (Appeal Decision April 15, 1988), aff'd, No. _______, (Iowa Ct. 
 
         App. February 22, 1990); Kebernik v. Thatcher Plastic Packaging, 
 
         file number 704973 (Arb. Decn., December 22, 1988); Jones v. 
 
         Lamoni Products, file number 800310 (1991) (currently on appeal).  
 
         
 
              That the injury of May 20, 1988, was the cause of permanent 
 
         impairment and disability; Bodish, 257 Iowa 516, 133 N.W.2d 867 
 
         (1965), Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945);
 
         
 
              That an injury to two members under Iowa Code section 
 
         85.34(2)(s) qualifies as a separate second injury under Iowa Code 
 
         section 85.64.  Saylor, Thirty-fourth Biennial Rep. Indus. Comm'r 
 
         282, 285.
 
         
 
              That claimant has sustained an industrial disability of 35 
 
         percent to the body as a whole and is entitled to 175 weeks of 
 
         permanent partial disability benefits; minus 25 weeks which is 
 
         the value of the scheduled member disability for the injury of 
 
         April 28, 1976; and minus 30 weeks of benefits which is the value 
 
         of the scheduled member injury of May 20, 1988, resulting a net 
 
         liability of the Second Injury Fund of 120 weeks of permanent 
 
         partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant Second Injury Fund pay to claimant one 
 
         hundred twenty (120) weeks of permanent partial disability 
 
         benefits at the stipulated rate of two hundred one and 30/100 
 
         dollars ($201.30) per week in the total amount of twenty-four 
 
         thousand one hundred fifty-six dollars ($24,156) commencing on 
 
         December 8, 1989, as stipulated to by the parties.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action, including the costs of the 
 
         attendance of the court reporter at hearing, as well as the 
 
         transcript of the hearing, are charged to defendant pursuant to 
 
         rule 343 IAC 4.33 and Iowa Code section 86.19(1).
 
         
 
              That defendant file claim activity reports as requested by 
 

 
         
 
         Page òòò 10        
 
         
 
         
 
         
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 5th Ave
 
         Des Moines, IA  50309
 
         
 
         Mr. Steven K. Young
 
         Assistant Attorney General 
 
         Hoover State Office Bldg.
 
         Des Moines, IA  50319
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                                          51100 51108.50 51401 51402.20 
 
                                          51402.30 52209 3200 53200 
 
                                          51803
 
                                          Filed December 20, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY REIFENSTAHL,            :
 
                                          :
 
                 Claimant,                :    File No.  886573
 
                                          :
 
            vs.                           :  A R B I T R A T I O N
 
                                          :      
 
            SECOND INJURY FUND OF IOWA,   :     D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
                 
 
            51100 51108.50 51401 51402.20 51402.30 52209
 
            It was determined that claimant sustained an injury to his 
 
            right hand and arm on April 28, 1976, which caused permanent 
 
            impairment and disability and a second injury to both his 
 
            right and left hands and arms on May 20, 1988, which caused 
 
            permanent impairment and disability which arose out of and 
 
            in the course of employment with employer.
 
            
 
            3200
 
            It was determined that a bilateral injury under Iowa Code 
 
            section 85.34(2)(s) qualified as a separate second injury 
 
            under Iowa Code section 85.64.
 
            
 
            53200 51803
 
            For Second Injury Fund purposes, it was determined that 
 
            claimant sustained a 35 percent industrial disability from 
 
            the combined effects of both injuries.  From this was 
 
            subtracted the value of the first and second scheduled 
 
            member injuries.  Claimant was awarded 120 weeks of 
 
            permanent partial disability benefits (175 weeks minus 25 
 
            weeks for the previous injury and minus 30 weeks for the 
 
            second injury results in 120 weeks of benefits from the 
 
            Second Injury fund.