BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOHN B. COOK,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 888644
 
            RUSSELL'S READY MIX, INC.,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, John B. Cook, against his employer, Russell's 
 
            Ready Mix, and its insurance carrier, General Casualty 
 
            Insurance company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury 
 
            sustained on June 10, 1988.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner at 
 
            Sioux City, Iowa, on July 28, 1993.  A first report of 
 
            injury has been filed.  The record consists of the testimony 
 
            of claimant, Belinda Kline, James Rogers, and Jan 
 
            Hardcopf-Bickley, as well as of claimant's exhibits 1 
 
            through 58 and defendants' exhibits A through N.  Both 
 
            parties filed briefs subsequent to hearing. 
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral 
 
            stipulations of the parties at hearing, the parties have 
 
            agreed to the following:
 
            
 
                 .  An employer-employee relationship existed between 
 
            claimant and Russell's Ready Mix on June 10, 1988;
 
            
 
                 .  Claimant did receive an injury which arose out of 
 
            and in the course of employment on June 10, 1988;
 
            
 
                 .  Claimant's injury caused a period of healing period 
 
            or temporary total disability;
 
            
 
                 .  Claimant had gross weekly earnings of $423.40 and 
 
            was single and entitled to one exemption on June 10, 1988, 
 
            entitling claimant to a weekly rate of $250.45;
 
            
 
                 .  Defendants are entitled to a credit for 265 weeks of 
 
            benefits paid claimant, all benefits paid at the applicable 
 
            rate; and
 

 
            
 
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                 .  Medical fees charged were fair and reasonable and 
 
            treatment for which those fees were charged was reasonable 
 
            and necessary treatment.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 .  The nature and extent of claimant's disability 
 
            entitlement, including the questions of the extent of 
 
            claimant's entitlement to healing period benefits and the 
 
            extent of claimant's entitlement to permanency benefits, a 
 
            question which also involves the issue of whether claimant 
 
            is permanently and totally disabled; and
 
            
 
                 .  Whether claimant is entitled to payment of certain 
 
            medical benefits as causally connected to his injury and 
 
            authorized by defendants.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is 43 years old and a high school graduate.  
 
            On June 10, 1988, claimant sustained an injury arising out 
 
            of and in the course of his employment when a road grader 
 
            ran over him.  Claimant sustained multiple rib fractures, 
 
            multiple pelvis fractures, a displaced sacrum fracture, as 
 
            well as a chest contusion with hemithorax on the left, 
 
            abdominal trauma with laceration of the spleen and perineal 
 
            tear.  Claimant subsequently developed an acute subdural 
 
            hematoma on July 4, 1988 for which he was surgically treated 
 
            with a left frontoparietotemporal craniotomy.  Claimant has 
 
            not returned to work since his injury.
 
            
 
                 Claimant reported that his condition improved through 
 
            summer 1989.  He subsequently experienced more intense hip 
 
            and back pain with radiation into the left lower extremity.  
 
            His treating physician, Quentin J. Durward, M.D., referred 
 
            claimant to Alan R. Huson, M.D., a neurosurgeon, and 
 
            subsequently to David G. Kline, M.D., a neurosurgeon.  
 
            Defendants initially delayed in authorizing the referrals.  
 
            Dr. Kline, on June 24, 1992, performed a left sacral 
 
            laminectomy at S2 through S4 with external neurolysis of the 
 
            sacral nerve roots.  Claimant reported that the June 1992 
 
            surgery was initially successful.  He further reported that 
 
            after approximately three months he had a return of symptoms 
 
            similar to his presurgery symptoms albeit not as intense.  
 
            He described his symptoms as morning stiffness and "dull 
 
            ache" that intensifies over time.  On September 19, 1990, 
 
            Dr. Durward prescribed a TENS unit for claimant.  Claimant 
 
            personally paid costs equally $562 for the TENS unit.  
 
            Claimant characterized the TENS unit as having been 
 
            initially helpful in relieving his pain but as becoming less 
 
            helpful over time.  
 
            
 
                 Claimant reports problems with memory and concentration 
 
            which he relates to the subdural hematoma and subsequent 
 
            surgery.  While recovery from his physical injuries, 
 
            claimant enrolled in basic electronics and refresher math 
 

 
            
 
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            courses.  Claimant finished the electronics class.  Claimant 
 
            did not finish his math course.  Claimant reported that pain 
 
            related to driving from his home in Remsen to Sioux City for 
 
            his courses and related to sitting while in class as well as 
 
            difficulties with concentration which claimant related to 
 
            his subdural hematoma were all factors in his failure to 
 
            complete the mathematics course.
 
            
 
                 Claimant looked for work subsequent to June 1992.  He 
 
            found none.  Claimant reported following up on between 20 
 
            and 30 job leads obtained either on his own or through 
 
            Crawford Rehabilitation or through Jan Hardcopf-Bickley and 
 
            Associates.  He stated that he had no job offers as a result 
 
            of those leads.  Claimant tried to tend bar and tried to do 
 
            floral shop delivery.  He could handle neither of those jobs 
 
            in that he felt they required that he be on his feet too 
 
            much.  
 
            
 
                 Claimant characterized himself as able to stand for 10 
 
            minutes, walk for 15 to 20 minutes, sit for 20 minutes, and 
 
            to drive within 20 miles of his home.  Claimant did not 
 
            follow-up on job leads in the Sioux City area.  Sioux City 
 
            is approximately 30 miles from claimant's home in Remsen.  
 
            Claimant did not feel that he could handle driving to and 
 
            from Sioux City as well as engaging in job activity there.  
 
            
 
                 Claimant has difficulty remembering what activity he 
 
            had been engaged in after he is interrupted or his routine 
 
            changes.  He needs to make notes as to activities he needs 
 
            to do.    Dr. Durward performed claimant's craniotomy and 
 
            treated claimant subsequent to that procedure.  Dr. Durward, 
 
            in his deposition taken January 14, 1991, characterized 
 
            claimant has having made a very rapid recovery from his 
 
            subdural hematoma and as having some residual memory 
 
            problems.  Dr. Durward referred claimant to James R. 
 
            Hairston, Ph.D., apparently a neuropsychologist, for 
 
            evaluation.  Dr. Hairston interpreted the testing as showing 
 
            that claimant had a mild deficit in both recent verbal and 
 
            recent nonverbal memory.  Dr. Durward, on April 13, 1989, 
 
            stated claimant had occasional anomia for names but [not] 
 
            other [memory] problems 
 
            
 
                 James T. Rogers, a vocational evaluator claimant 
 
            employed, referred claimant to Thomas A. Korn, Ph.D., a 
 
            certified rehabilitation counselor who limits his practice 
 
            to rehabilitation of the brain injured and 
 
            neuropsychological consultation.  Dr. Korn characterized 
 
            claimant has having an impairment in his mnestic processing, 
 
            that is, with learning and memory.  Dr. Korn opined that 
 
            work designing and building concrete animal waste storage 
 
            units would be beyond claimant's capacity.  Dr. Korn opined 
 
            that claimant could not return to competitive work even with 
 
            memory coaching, primarily because of his physical 
 
            limitations.  Dr. Korn opined that claimant's best 
 
            vocational options would be either a "hobby business" that 
 
            claimant operated from his home or placement of claimant in 
 
            a limited, selective work environment such as Goodwill 
 
            Industries for a couple of hours per work day.
 
            
 
                 J. Michael Donohue, M.D., first saw claimant for an 
 

 
            
 
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            independent medical examination on June 16, 1989.  That 
 
            evaluation concerned claimant's left lower extremity only.  
 
            Dr. Donohue felt that claimant had significant impairment as 
 
            a result of neurological damage to the left lower extremity.  
 
            He found significant left hip and calf atrophy and decreased 
 
            sensation in the L4 and L5 dermatonal distribution with left 
 
            lower extremity weakness in those dermatone distributions.  
 
            Dr. Donohue opined claimant was at maximum medical 
 
            improvement as of June 16, 1989, and assigned claimant a 50 
 
            percent permanent partial impairment of the left lower 
 
            extremity pursuant to the 3rd edition of the AMA Guides on 
 
            that date.  Dr. Donohue agreed that his impairment rating 
 
            did not consider claimant's complaints of persistent pain 
 
            and did not consider claimant's pelvis injury, his internal 
 
            injuries, his abdominal and chest injuries, or his decrease 
 
            in penile function.  The impairment rating also did not 
 
            consider any residual effects of claimant's acute subdural 
 
            hematoma and related surgery.  Donohue did not believe 
 
            claimant could then return to employment requiring bending, 
 
            lifting, pushing, or pulling.  
 
            
 
                 S.W. Leafstedt, M.D., performed a fuctional capacities 
 
            evaluation of claimant and released claimant for work in 
 
            December 1989.
 
            
 
                 Dr. Donohue next saw claimant on April 12, 1993.  
 
            Claimant then complained of low back pain, left leg pain and 
 
            left hip pain which claimant rated at six on a scale of ten, 
 
            with ten being the most severe pain level.  Per Dr. 
 
            Donohue's order, claimant was enrolled in a back care 
 
            rehabilitation program from April 14, 1993 through May 12, 
 
            1993.  Claimant voluntarily left that program without 
 
            completing it.  Claimant characterized the drive to and from 
 
            Sioux City as too difficult for him.  Dr. Donohue stated 
 
            that objectively claimant had made modest improvements in 
 
            his strength while enrolled in the rehabilitation program.  
 
            The doctor reported that subjectively claimant continued to 
 
            complain of significant symptoms.  Dr. Donohue stated that 
 
            although claimant's functional capacities were largely 
 
            unchanged in 1993 from those found in 1989, claimant's 
 
            performance in the rehabilitation program demonstrated that 
 
            claimant was capable of gainful employment.
 
            
 
                 Charles Taylon, M.D., a neurological surgeon, examined 
 
            and evaluated claimant on October 11, 1990.  Dr. Taylon then 
 
            felt that claimant's complaints [of pain] resulted from 
 
            peripheral nerve injuries to the pelvis.  Dr. Taylon 
 
            indicated that these should probably be handled through a 
 
            pain management unit and then stated that he would support 
 
            Dr. Durward's treatment approach.  Dr. Taylon opined that 
 
            claimant had a 30 percent permanent partial impairment to 
 
            the body as a whole.  
 
            
 
                 Jay J. Parsow, M.D., examined and evaluated claimant on 
 
            May 12, 1993.  Dr. Parsow opined that claimant had a 35 
 
            percent permanent partial impairment to the body as a whole 
 
            which impairment included consideration of claimant's 
 
            cognitive dysfunction.
 
            
 
                 James T. Rogers vocationally evaluated claimant at 
 

 
            
 
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            claimant's counsel's request.  Mr. Rogers provided no job 
 
            placement services nor any medical management services.  Mr. 
 
            Rogers felt that claimant should have comprehensive 
 
            vocational assessment in a sheltered setting to determine 
 
            whether claimant could work even a sedentary job on a 
 
            40-hour per week basis and to determine what effects 
 
            claimant's neuropsychological deficit would have on his job 
 
            performance.  Mr. Rogers opined that claimant might be able 
 
            to do homebound work such as craft making.  Jan 
 
            Hardcopf-Bickley, a vocational rehabilitation specialist 
 
            defendants employed, has arranged a work simulation for 
 
            claimant at the Cherokee County Soil Conservation Service.  
 
            Mr. Rogers opined that he had "grave doubts" that that 
 
            simulation would be successful in that he felt the job was 
 
            too physical for claimant.  He characterized soil 
 
            conservation jobs as involving field work for 60 to 80 
 
            percent of the time and as requiring that one carry up to 30 
 
            pounds.  Mr. Rogers also questioned claimant's ability to 
 
            drive from his home in Remsen to the soil conservation 
 
            service office.  Rogers and claimant characterized the drive 
 
            as a 28-mile drive.  Ms. Hardcopf-Bickley characterizes the 
 
            drive as a 20-mile drive. 
 
            
 
                 Ms. Hardcopf-Bickley stated that claimant has 
 
            transferable skills.  She characterized claimant as having 
 
            extensive knowledge of concrete products and concrete 
 
            finishing techniques; as having knowledge of grade and slope 
 
            and basic surveying techniques; as having basic knowledge of 
 
            electrical equipment and circuitry as well as of blueprint 
 
            reading.  She also stated that claimant had supervisory 
 
            experience, could follow precise instructions and could use 
 
            measurement instruments accurately.  She noted claimant has 
 
            good verbal skills.  Ms. Hardcopf-Bickley reported 
 
            claimant's medically related restrictions as limiting him to 
 
            medium work in which he could change position frequently.  
 
            Claimant has self-limited from driving for long periods and 
 
            has limited his job search to within 20 miles of his home in 
 
            Remsen.  Ms. Hardcopf-Bickley requests her rehabilitation 
 
            clients to sign a rehabilitation plan and does not begin 
 
            implementation of a rehabilitation plan with a client until 
 
            the client has signed the plan.  Claimant was unwilling to 
 
            sign his plan until after consultation with his counsel.  
 
            Claimant did not sign his plan until approximately two and 
 
            one-half weeks prior to hearing.   
 
            
 
                 Ms. Hardcopf-Bickley has arranged a week-long work 
 
            simulation with the Cherokee County Soil Conservation 
 
            Service.  She characterizes this job as involving light work 
 
            as defined by the Dictionary of Occupational Titles and as 
 
            permitting claimant to move about at will.  Claimant would 
 
            work in a special project concerning the design and 
 
            construction of animal solid waste treatment facilities.  
 
            Ms. Hardcopf-Bickley reported the soil conservation service 
 
            had a special interest in claimant doing this project on 
 
            account of claimant's past work in concrete finishing.  The 
 
            pay grade for the position is either a GS 3 or a GS 4 with a 
 
            beginning wage from $4 to $7.85 per hour.  If the initial 
 
            pay grade is GS 4 at $7.85 per hour the "top out" pay grade 
 
            would be a GS 12 at $12 per hour.  Ms. Hardcopf-Bickley 
 

 
            
 
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            stated there is no guarantee that the position will be 
 
            permanently funded.  She stated that an employer 
 
            participating in job stimulation and on-the-job training 
 
            agrees to make a good faith effort to find a position for 
 
            the worker if the worker is successful in the on-the-job 
 
            training.  In this case, the insurer, General Casualty, is 
 
            assisting with funding, that is, providing wages to claimant 
 
            while claimant participates in the on-the-job training.
 
            
 
                 Claimant characterized the job simulation in the soil 
 
            conservation service as "too good" to pass up and stated he 
 
            would give it a try.  Claimant characterized the drive from 
 
            Remsen to the soil conservation office as 28 miles one way.  
 
            He felt that the drive would be a major obstacle to his 
 
            being able to perform the job.  Claimant disagreed with Ms. 
 
            Hardcopf-Bickley's characterization of the soil conservation 
 
            position as an actual job offer.  Claimant stated that there 
 
            were 25 applicants for the soil conservation service 
 
            position.  
 
            
 
                 It is expressly found that some uncertainties exist 
 
            both as related to long-term funding of the soil 
 
            conservation service position and as related to claimant's 
 
            ability to perform the position.  It is further expressly 
 
            found that claimant has been less than actively involved in 
 
            seeking employment and appears to have the perception of 
 
            himself as nonemployable which perception is encouraged by 
 
            his vocational evaluator such that it can not fairly be said 
 
            that claimant has made either an adequate or diligent job 
 
            search.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first concern is the extent of claimant's permanent 
 
            disability.  Claimant argues that claimant is permanently 
 
            and totally disabled.  
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).
 
            
 
                 A finding that claimant could perform some work despite 
 
            claimant's physical and educational limitations does not 
 
            foreclose a finding of permanent total disability, however.  
 
            See Chamberlin v. Ralston Purina, File No. 661698 (App. 
 
            October 29, 1987); Eastman v. Westway Trading Corp., II Iowa 
 
            Industrial Commissioner Report 134 (App. 1982).
 
            
 
                 In considering whether an individual is permanently and 
 
            totally disabled, one must assess the factors of industrial 
 
            disability as they relate to that particular claimant. 
 
            
 
                 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 
 

 
            
 
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            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 
 
            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).
 
            
 
                 The record does not support claimant's contention that 
 
            claimant is permanently and totally disabled.  While all 
 
            physicians and all vocational counselors agree claimant 
 
            cannot return to the heavy manual labor he performed prior 
 
            to his work injury, none of claimant's physicians and only 
 
            the vocational evaluator and the neuropsychological 
 

 
            
 
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            evaluator claimant retained contend claimant cannot return 
 
            to some gainful work.  Claimant has transferable skills both 
 
            as set out by Vocational Rehabilitation Consultant 
 
            Hardcopf-Bickley and as demonstrated by the soil 
 
            conservation service's willingness to accommodate claimant 
 
            with a job simulation and consideration of employment.  
 
            Claimant appears to be of average to high average 
 
            intelligence.  Claimant apparently does have some memory 
 
            deficits on account of his subdural hematoma.  Dr. Durward, 
 
            who was claimant's primary treating physician for that 
 
            condition, does not state that that condition precludes 
 
            claimant's employment.  Dr. Hairston, the neuropsychological 
 
            evaluator to whom Dr. Durward referred claimant, and Ms. 
 
            Hardcopf-Bickley share that view.  Indeed, only claimant's 
 
            vocational evaluator and claimant's neuropsychological 
 
            evaluator, that is, Mr. Rogers and Mr. Korn, place great 
 
            stress on claimant's cognitive deficits as a barrier to 
 
            employability.  Their views in this regard are given lessor 
 
            weight in that their views are not consistent with the 
 
            opinions the primary treating neurosurgeon, Dr. Durward, 
 
            expressed. 
 
            
 
                 While claimant has self-limited as to driving more than 
 
            20 miles from his home, no doctor has imposed that 
 
            restriction.  The medically imposed restrictions are such 
 
            that claimant remains physically capable of engaging in 
 
            moderate or light work.  That the employer's vocational 
 
            rehabilitation specialist has been able to arrange a job 
 
            simulation for claimant supports the conclusion that work 
 
            within claimant's physical capacities and education, 
 
            experience, training, and intelligence may well be available 
 
            to claimant should claimant seek it diligently.  The record, 
 
            unfortunately, does not demonstrate that claimant has been 
 
            wholly committed to seeking employment or assisting in his 
 
            own rehabilitation.  For that reason also, the determination 
 
            that claimant is permanently and totally disabled on account 
 
            of his work injury is inappropriate.  Questions remain as to 
 
            
 
            
 
            
 
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            whether claimant's limited success in finding employment 
 
            result from the residuals from his work injury or result 
 
            from claimant's relatively passive approach to his own 
 
            rehabilitation.  
 
            
 
                 While claimant is not found to be permanently and 
 
            totally disabled, it is clear that claimant has a 
 
            significant industrial disability.  Claimant has suffered a 
 
            severe work injury with significant residuals as reflected 
 
            in the impairment ratings rendered.  It is clear that 
 
            claimant cannot return to the work he was doing prior to his 
 
            injury.  Claimant's intellectual capacities, his education 
 
            and prior experience all suggest claimant has skills he 
 
            could utilize in competitive employment.  It is also evident 
 
            that claimant's job market access is substantially more 
 
            limited than it was prior to his work injury when claimant 
 
            had access to the heavy manual labor jobs from which he is 
 
            now restricted.  When all factors are considered, it is 
 
            found that claimant has sustained a loss of earnings 
 
            capacity of 70 percent resulting in an industrial disability 
 
            entitlement of 350 weeks.
 
            
 
                 We consider the question of claimant's healing period 
 
            entitlement.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 The fighting issue as regards healing period is whether 
 
            claimant is entitled to healing period benefits from his 
 
            date of injury through Dr. Kline's opinion of maximum 
 
            medical improvement on March 29, 1993, or whether healing 
 
            period benefits should only be awarded intermittently with a 
 
            stoppage of healing period benefits after December 24, 1989 
 
            through March 2, 1992, when claimant commenced evaluation 
 
            and treatment with Dr. Kline.  The earliest indication that 
 
            claimant might have been at maximum medical improvement came 
 
            in April 1989 when Dr. Durward released claimant from the 
 
            doctor's care but for a return on an as needed basis.  Dr. 
 
            Donohue then in June 1989 pronounced claimant at maximum 
 
            medical improvement.  Dr. Leafstedt, in December 1989, 
 
            performed a functional capacities evaluation and released 
 
            claimant to return to work.  Any of these arguably might 
 
            appropriately be considered points of maximum medical 
 
            improvement.  Likewise, various physicians rendered 
 
            permanent partial impairment ratings on or before March 29, 
 
            1993.  Arguably, these dates also might be determinative of 
 
            an initial end point of claimant's entitlement to healing 
 

 
            
 
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            period benefits.  Nonetheless, claimant's significant pain 
 
            complaints related to his work injury were never fully 
 
            alleviated or stabilized until subsequent to Dr. Kline's 
 
            surgical intervention.  Claimant actively sought treatment 
 
            referrals in order to resolve those symptoms.  Defendants 
 
            delayed in authorizing both referrals and treatment.  Hence, 
 
            the prolonged period in which claimant's condition was not 
 
            optimally treated is attributable to defendants' action and 
 
            not to claimant.  Given that, claimant is properly entitled 
 
            to an award of healing period benefits from his date of 
 
            injury through March 29, 1993.  Additionally, claimant is 
 
            entitled to an intermittent award of healing period benefits 
 
            during that time in April and May 1993 when claimant 
 
            underwent work hardening at defendants' behest.  That work 
 
            hardening was intended to maximize claimant's functional 
 
            capacities and thereby increase his access to the labor 
 
            market.  That intermittent period of healing period 
 
            entitlement begins on April 12, 1993, when claimant entered 
 
            the back rehabilitation program and ends on May 10, 1993, 
 
            when claimant voluntarily withdrew from that program.
 
            
 
                 We consider the question of claimant's entitlement to 
 
            payment of the costs related to the TENS unit and request 
 
            for payment of charges with Thomas Korn, Ph. D.
 
            
 
                 Section 85.27 requires the employer to furnish 
 
            reasonable medical services and supplies for conditions 
 
            compensable under the workers' compensation law.  Dr. 
 
            Durward, claimant's authorized physician, prescribed 
 
            claimant's TENS unit for pain condition related to 
 
            claimant's work injury.  In that the unit was prescribed by 
 
            a treating physician any lack of authorization defense 
 
            fails.  Defendants do have the right to choose the provider 
 
            of care.  Defendants do not have the right to interfere with 
 
            the authorized physician's judgments as to the type of care 
 
            appropriately to be rendered.  See Assman v. Blue Star 
 
            Foods, declaratory ruling, file number 866389 (May 18, 
 
            1988).
 
            
 
                 Claimant has not established any entitlement to payment 
 
            of costs incurred with Dr. Korn, however.  Dr. Korn clearly 
 
            was not an authorized physician. It also cannot be said that 
 
            Dr. Korn provided care that improved claimant's condition 
 
            and therefore mitigated the employer's ultimate liability 
 
            such that Dr. Korn's involvement with claimant could be 
 
            considered nonauthorized but reasonable and necessary 
 
            treatment.  See Rittgers v. United Parcel Service, 3 Iowa 
 
            Industrial Commissioner Report 210, 213 (1983).  Indeed, it 
 
            is questionable whether Dr. Korn's involvement with claimant 
 
            can properly be considered care.  Dr. Korn's involvement 
 
            appears to have been primarily in the nature of evaluation.  
 
            Claimant has already had an independent medical evaluation 
 
            with Dr. Parsow.  Additionally, Dr. Korn's evaluation 
 
            appears to have been prepared more in contemplation of 
 
            litigation then in contemplation of providing treatment.  No 
 
            reasonable basis for reimbursement for the costs of services 
 
            Dr. Korn rendered exist either under section 85.27 or 
 

 
            
 
            Page  11
 
              
 
            
 
            
 
            section 85.39
 
            
 
                                      ORDER
 
            
 
                 Defendants pay claimant healing period benefits at the 
 
            rate of two hundred fifty and 45/100 dollars ($250.45) from 
 
            his date of injury through March 29, 1993 and defendants pay 
 
            additional healing period benefits from April 12, 1993 
 
            through May 10, 1993.
 
            
 
                 Defendants receive credit for benefits previously paid.
 
            
 
                 Defendants pay claimant permanent partial disability 
 
            benefits for three hundred fifty (350) weeks at the rate of 
 
            two hundred fifty and 45/100 (250.45) with those payments to 
 
            commence on March 30, 1993, and cease on April 12, 1993, and 
 
            recommence on May 11, 1993.
 
            
 
                 Defendants pay claimant costs related to the securing 
 
            of a TENS unit in the amount of five hundred sixty-two 
 
            dollars ($562).
 
            
 
                 Defendants pay costs of this action.
 
            
 
                 Defendants file claim activity reports as the agency 
 
            orders.
 
            
 
                 Signed and filed this ____ day of October, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. G. Daniel Gildemeister
 
            Attorney at Law
 
            400 Firstar Bank Bldg
 
            PO Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Frank Harrison
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                           1802 1803 1804 2501 2503
 
                                           Filed October 14, 1993
 
                                           Helenjean Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOHN B. COOK,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 888644
 
            RUSSELL'S READY MIX, INC.,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            GENERAL CASUALTY COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1804 1803
 
            Claimant sustained quite severe injuries when he was run 
 
            over by a road grader.  Claimant was not found totally and 
 
            permanently disabled.  Claimant had transferable skills and 
 
            remained capable of performing light and moderate work.  
 
            Record demonstrated that claimant was not highly motivated 
 
            to seek employment.  Claimant awarded 70 permanent partial 
 
            disability benefits.
 
            
 
            1802 
 
            Claimant awarded healing period benefits from the date of 
 
            injury through his release by a physician who performed 
 
            surgery to relieve claimant's pain symptoms almost four 
 
            years subsequent to the original injury.  Defendants had 
 
            delayed in authorizing evaluation and treatment of 
 
            claimant's continuing pain complaints even though claimant's 
 
            authorized treating physician had advised that further 
 
            evaluation and potential treatment was warranted.
 
            
 
            2501 2503
 
            Claimant awarded costs of a TENS unit that claimant's 
 
            authorized treating physician had prescribed.  Claimant 
 
            denied costs of psychoneurological evaluation where 
 
            psychoneurological evaluation could not properly be 
 
            characterized as treatment and appeared to have been sought 
 
            primarily for the purpose of furthering claimant's position 
 
            in litigation.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BETTY ROBSON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  888702
 
            WOODBURY COUNTY,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL INS.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Betty 
 
            Robson, claimant, against Woodbury County, employer, and 
 
            Northwestern National Insurance Group, insurance carrier, 
 
            defendants, for benefits as the result of alleged injuries 
 
            which occurred on April 5, 1986 and April 6, 1986.  A 
 
            hearing was held at Sioux City, Iowa, on April 24, 1990, and 
 
            the case was fully submitted at the close of the hearing.  
 
            Claimant was represented by William L. Miller.  Defendants 
 
            were represented by James M. Cosgrove.  The record consists 
 
            of the testimony of Betty Robson, claimant; Mike Robson, 
 
            claimant's husband; and joint exhibits 1 through 66.  Joint 
 
            exhibit 67 was excluded from evidence for the reason that it 
 
            was a deposition of claimant and claimant was available at 
 
            the hearing for examination and cross-examination and, if 
 
            necessary, could be refreshed or impeached by the 
 
            deposition.  Both claimant and defendants offered a brief 
 
            description of the disputes at the beginning of the hearing.  
 
            The deputy ordered a transcript of the hearing.  Both 
 
            attorneys submitted excellent posthearing briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated that claimant sustained an 
 
            injury on April 5, 1986 and again on April 6, 1986, which 
 
            arose out of and in the course of employment with employer; 
 
            that the injuries were the cause of both temporary and 
 
            permanent disability; and that claimant's entitlement to 
 
            temporary disability benefits was no longer in dispute and 
 
            had been paid for the following periods of time:  (1) April 
 
            20, 1986 to May 17, 1986; (2) May 25, 1986 to May 30, 1986; 
 
            (3) June 16, 1986 to October 26, 1986; (4) January 5, 1987 
 
            to January 25, 1987; and (5) February 2, 1987 to May 1, 1988 
 
            (exhibit 2).
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The parties further stipulated that the type of 
 
            permanent disability, in any, is industrial disability and 
 
            that defendants had paid claimant 50 weeks of permanent 
 
            partial disability benefits at the stipulated rate of 
 
            $177.16 per week in the total amount of $8858 prior to 
 
            hearing (exhibit 2).
 
            
 
                 The parties stipulated that the issue of whether 
 
            defendants were entitled to a credit under Iowa Code section 
 
            85.38 for nonoccupational group health plan benefits paid to 
 
            claimant prior to hearing, as shown on the hearing 
 
            assignment order, was withdrawn by the parties at the time 
 
            of the hearing (transcript pages 10 and 11).
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to additional permanent 
 
            partial disability benefits; and
 
            
 
                 Whether claimant is entitled to certain medical 
 
            expenses itemized in paragraph eight of the hearing 
 
            assignment order.
 
            
 
                                 findings of fact
 
            
 
                   entitlement to permanent disability benefits
 
            
 
                 It is determined that claimant sustained a 15 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 75 weeks of permanent partial disability benefits.
 
            
 
                 The parties agreed that claimant has actually sustained 
 
            2 separate injuries on two separate dates, but both injuries 
 
            were to be presented and decided in this hearing as one 
 
            claim (tr. p. 5).  
 
            
 
                 Claimant started to work for employer in August of 1980 
 
            and continued to work for employer for a period of 
 
            approximately six and one-half years until January 31, 1987.  
 
            She started as a residential assistant, monitoring 
 
            residents; was promoted to psych tech; and eventually lead 
 
            psych tech in 1983.  At the time of this injury, she worked 
 
            in a lockup unit with mentally disturbed male patients.  
 
            
 
                 On April 5, 1986, a disturbed patient grabbed her by 
 
            the hair and pulled her head back and to the left.  On April 
 
            6, 1986, another disturbed patient attempted to choke her by 
 
            putting his hands around her neck.  As a result of these 
 
            injuries she had left neck pain, left shoulder pain, left 
 
            elbow pain and pain down the left arm to the fingers.  She 
 
            was treated by several doctors and with several modalities 
 
            of treatment.  
 
            
 
                 Claimant was treated by:  G.L. Tapper, D.C., for acute 
 
            traumatic injury of the cervical and upper thoracic spine; 
 
            J.H. Walston, M.D., for acute cervical and thoracic 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            myositis; C.T. Helseth, M.D., a family practice physician, 
 
            for left neck and shoulder weakness; Mark P. Hagen, D.C., 
 
            for cephalgia, hyperflexion/hyperextention of the cervical 
 
            spine, cervical thoracic sprain, cervical cranial syndrome, 
 
            shoulder pain and muscle spasm; Nino R. Lentini, M.D., an 
 
            orthopedic surgeon, for myofascitis of the left shoulder; A. 
 
            Kleider, M.D., for neck pain and headache; B. Krysztofiak, 
 
            M.D., a physical medicine and rehabilitation doctor who 
 
            performed an EMG and nerve conduction study which was 
 
            normal; Robert A. Durnin, M.D., a physical medicine and 
 
            rehabilitation doctor, for headaches and pain involving the 
 
            left shoulder joint; and Lyle G. Leibrock, M.D., an 
 
            orthopedic surgeon at the University of Nebraska Medical 
 
            Center in Omaha, for paracervical posterior pain which would 
 
            go to the posterior shoulder.  During the course of 
 
            treatment by these physicians, claimant had several x-rays, 
 
            some CT scans and MRI's.
 
            
 
                 Quentin J. Durward, M.D., a neurosurgeon, performed a 
 
            myelogram on November 20, 1987, and identified a C-6/7 
 
            central disc herniation touching the spinal cord (ex. 38, p. 
 
            2).  On January 6, 1988, Dr. Durward and John J. Dougherty, 
 
            M.D., an orthopedic surgeon, performed an anterior C6/7 
 
            cervical diskectomy and fusion (ex. 40, p. 3).  On April 22, 
 
            1988, Dr. Durward stated that claimant will reach maximum 
 
            medical improvement on May 1, 1988, and gave claimant a 10 
 
            percent permanent impairment rating (ex. 44, p. 1).  On 
 
            August 9, 1988, Dr. Dougherty concurred in a 10 percent 
 
            permanent impairment rating (ex. 26).  Neither doctor 
 
            imposed any temporary or permanent restrictions on claimant.  
 
            She was permitted whatever her condition would tolerate.  
 
            Before the surgery was performed, Dr. Durnin estimated that 
 
            claimant's symptoms would suggest a 14 percent permanent 
 
            impairment plus 2 percent for loss of lateral flexion and 2 
 
            percent for loss of rotation (ex. 34). 
 
            
 
                 After the surgery, in approximately July of 1988, 
 
            claimant joined her husband and family in Las Vegas, Nevada, 
 
            where she completed a medical assistant course and received 
 
            a certificate.  At the time of the hearing, she had also 
 
            made an application to be certified as a nurse's aide.  
 
            Sometime before the injury, claimant had completed courses 
 
            and received certificates from the Iowa Department of Health 
 
            in sanitation, modified diets, meal service and food 
 
            service.  
 
            
 
                 Past employments include: waitress, assembly person in 
 
            a transistor factory, dietary cook and dietary aide.  She 
 
            completed courses at Western Iowa Tech for geriatric aide, 
 
            psychiatric aide and medication aide.  At the time of the 
 
            hearing, she was studying accounting and bookkeeping through 
 
            a correspondence course with the intention of completing the 
 
            course.  
 
            
 
                 In Las Vegas claimant saw a number of doctors again for 
 
            various problems such as pneumonia, vomiting and anxiety.  
 
            In Las Vegas claimant consulted Larry M. Allen, M.D.; Robert 
 
            E. Cutler, M.D.; Armand Gilbo, D.C.; and Peter F. Mattimoe, 
 
            M.D.  None of these physicians were authorized by the 
 
            defendants, but they did authorize claimant to see a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            neurosurgeon, George P. Schanz, M.D.  Dr. Schanz could not 
 
            find anything physically wrong with claimant and commented 
 
            that if she was self-employed she probably would have gone 
 
            back to work (ex. 56).  
 
            
 
                 Claimant returned to Sioux City in February of 1989 and 
 
            saw Dr. Durward again.  He said the operation got rid of 
 
            most of her arm pain and the tingling in her hand, but she 
 
            had persistent pain in the left neck, left superior shoulder 
 
            area and headaches which were activity related.  He did not 
 
            find any neurological problems, but did state, "I think this 
 
            lady has a persistent myofascial pain disorder, probably 
 
            related to her original injury.  I think further treatment 
 
            is required for this." (ex. 45).  He recommended a 
 
            prescription, an exercise program, physical therapy 
 
            modalities, a course of myofascial pain blocks and steroidal 
 
            flooding (ex. 45).  On April 6, 1989, his associate, Ralph 
 
            F. Reeder, M.D., stated that his assessment was in agreement 
 
            with Dr. Durward's.  He added, "I am afraid however, that 
 
            she has developed a chronic pain syndrome." (ex. 46).  On 
 
            May 1, 1989, Dr. Durward repeated that claimant has a 
 
            chronic myofascial pain disorder.  He recommended that she 
 
            attend a pain clinic in Las Vegas, but he was informed there 
 
            was no pain clinic there (ex. 49).  She said she saw a Dr. 
 
            Parker (full name unknown) at the pain clinic in Las Vegas 
 
            (tr. pp. 89 & 90).  At the Las Vegas pain clinic they used a 
 
            TENS unit (tr. pp. 90 & 91).
 
            
 
                 Her current symptoms are a sharp pain in the left side 
 
            of her neck, across the left shoulder and the back of the 
 
            left arm (tr. p. 52).  
 
            
 
                 At the time of the hearing she was working in a health 
 
            care center as a dietary aide, five hours a day, four days a 
 
            week at $4.60 per hour, setting up trays for meals and 
 
            putting away dishes (tr. p. 53).  Claimant asserted and her 
 
            husband corroborated that she is very limited in her ability 
 
            to perform house work and yard work at home.  Her neck is 
 
            stiff and sore and she cannot brush her own hair.  In May of 
 
            1989, defendants had a job as a medical aide approved for 
 
            claimant by Dr. Durward and sent claimant an application.  
 
            Claimant testified that she was not interested in working in 
 
            Sioux City because she had moved to Nevada (ex. 50).  
 
            
 
                 Claimant testified that she was 38 years old and had 
 
            graduated from high school.  She is young enough to find new 
 
            employment.  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 is capable of retraining.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 89 
 
            (1984).  In fact, claimant has been taking courses and 
 
            increasing her qualifications for the competitive employment 
 
            market most of her adult working life.  Claimant admitted 
 
            that no doctor had imposed any work restrictions on her of 
 
            any kind and that she was allowed to do anything she could 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            tolerate (tr. p. 140).  Even though claimant expressed great 
 
            difficulty in working, which is probably due to her chronic 
 
            pain syndrome, there is no evidence that claimant is 
 
            foreclosed from any of her former employments.  Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
            Report 282 (1984); Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (Appeal Decision January 30, 1979).
 
            
 
                 Claimant testified that she had attempted to find work, 
 
            but was not very successful.  Claimant's motivation to find 
 
            work is questioned because of the long periods of time 
 
            during which she did not seek employment.  It is also noted 
 
            that she is supported by her husband of 19 years who has a 
 
            full-time job and that she has three teenaged children at 
 
            home that probably need her attention.
 
            
 
                 Because claimant has not made a serious attempt to find 
 
            full-time work, it is difficult to ascertain the true extent 
 
            of her loss of earning capacity.  Schofield v. Iowa Beef 
 
            Processors, Inc., II Iowa Industrial Commissioner Report 
 
            334, 336 (1981).  An employee making a claim for industrial 
 
            disability will benefit from a showing of a serious attempt 
 
            to find work.  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).  Employers are 
 
            responsible for the reduction in earning capacity caused by 
 
            the injury.  They are not responsible for loss of actual 
 
            earnings because the employee resists or refuses to return 
 
            to work.  Williams v. Firestone Tire and Rubber Co., III 
 
            Iowa Industrial Commissioner Report 279 (1982); 
 
            
 
                 The fact that claimant forgot that she injured her neck 
 
            in high school and that she sought chiropractic care in 
 
            junior high school did not seriously impair her credibility.  
 
            Her preexisting degenerative disc disease has already been 
 
            taken into consideration (tr. p. 77).
 
            
 
                 Claimant contends that she was fired or terminated by 
 
            employer, but this is not correct.  Woodbury County 
 
            transferred the employment contract to an independent 
 
            contractor, Woodbury County Homestead, Inc.  When this 
 
            transition occurred, defendants, of necessity, terminated 
 
            claimant on January 31, 1987.  Claimant applied for 
 
            employment with Woodbury County Homestead, Inc., but she was 
 
            not hired by that organization.  Therefore, it cannot 
 
            definitely be stated with accuracy that defendant employer, 
 
            Woodbury County, would not offer claimant employment.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            
 
                 It is also noted that Dr. Durward commented on his 
 
            surgery report of January 6, 1988, "The patient had a 
 
            surprisingly degenerated C6/7 disk." (ex. 40, p. 3).  
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease, but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 Wherefore, (1) based on claimant's age in the mid-30's 
 
            at the time of this injury; (2) her high school education; 
 
            (3) the numerous courses that she has completed which 
 
            enhance her qualifications in the medical field; (4) her 
 
            permanent impairment rating of 10 percent; (5) the fact that 
 
            no doctor has imposed any permanent work restrictions on 
 
            claimant; (6) the fact that claimant is and probably will be 
 
            into the indefinite future afflicted with a chronic pain 
 
            syndrome which will reduce her earning capacity in some 
 
            degree; (7) based on the other evidence in this case; (8) 
 
            based on 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 
 
            (9) relying on agency expertise [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 15 percent industrial disability to the body as 
 
            a whole and is entitled to 75 weeks of permanent partial 
 
            disability benefits.  
 
            
 
                 Defendants are entitled to a credit for the 50 weeks of 
 
            permanent partial disability benefits paid to claimant prior 
 
            to hearing as stipulated to by the parties.
 
            
 
                                 medical benefits
 
            
 
                 Reviewing the list of medical expenses attached to the 
 
            prehearing report, the following determinations are made:
 
            
 
                 The prescriptions from Skaggs Pharmacy in the amount of 
 
            $64.18 are denied because they were ordered by Peter F. 
 
            Mattimoe, M.D., who was not an authorized treating physician 
 
            for claimant in Las Vegas.  Furthermore, one of the 
 
            prescriptions is Vasotec, which is a blood pressure 
 
            medication (ex. 62).
 
            
 
                 The reimbursement for two pairs of glasses prescribed 
 
            by Dr. Durnin cannot be allowed.  Dr. Durnin's medical 
 
            report of October 5, 1987, stated that claimant should get 
 
            some single lens glasses so that she does not have to look 
 
            over the ridge in her bifocals because that probably 
 
            aggravated her neck pain when she extended her neck.  
 
            Therefore, claimant was directed by Dr. Durnin to buy a pair 
 
            of single lens glasses for computer work and typewriter work 
 
            (ex. 35).  Claimant submitted two bills for eyeglasses, one 
 
            in the amount of $105 and the other one in the amount of 
 
            $67.  It cannot be determined which bill is for the single 
 
            lens glasses.  Claimant gave no testimony on this point.  
 
            Furthermore, defendants maintain that claimant was paid for 
 
            one pair of glasses (ex. 11) whereas, claimant maintains in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            her testimony that she received one check for several items 
 
            without a summary of what it covered and she didn't feel 
 
            that the glasses had been paid for (tr. pp. 133 & 134).  
 
            Wherefore, based on this evidence, claimant has not 
 
            sustained the burden of proof by a preponderance of the 
 
            evidence how much is owed for eyeglasses and there is a 
 
            conflict of testimony as to whether she has been paid for 
 
            the eyeglasses or not.  Therefore, no allowance can be made 
 
            for the eyeglasses (ex. 61).
 
            
 
                 Claimant makes a claim for air transportation from Las 
 
            Vegas to Omaha in order to return to Iowa to see Dr. 
 
            Durward.  Claimant was authorized Dr. Durward as a 
 
            neurosurgeon in Sioux City and she was authorized Dr. Schanz 
 
            as a neurosurgeon in Las Vegas.  Thus, this air fare is not 
 
            a reasonably necessary medical expense within the context of 
 
            Iowa Code section 85.27. 
 
            
 
                 Claimant is denied the medical expense item for mileage 
 
            from Omaha to Smithland, Iowa, and Smithland back to Omaha, 
 
            Nebraska, a total of 218 miles in the amount of $47.96.  
 
            Claimant made no explanation of what this mileage is or why 
 
            it is justified.  It would appear to be the mileage from the 
 
            airport in Omaha to where ever claimant stayed when she was 
 
            back in the Sioux City area and then her trip back to the 
 
            airport again.  Again, since claimant was authorized 
 
            treating neurosurgeons in both Las Vegas and Sioux City, 
 
            then this is not a reasonably necessary transportation 
 
            expense in the context of Iowa Code section 85.27.
 
            
 
                 Claimant is entitled to the prescriptions of Dr. 
 
            Durward for Dolobid dated February 15, 1989, and March 1, 
 
            1989, at the James Drug pharmacy in the amount of $60.98 
 
            (ex. 63).  Dr. Durward was an authorized treating physician.  
 
            Defendants' contention that Dr. Durward had not been a 
 
            treating physician since he had last seen claimant on March 
 
            30, 1988, when he said he would not need to see her again, 
 
            is without merit.  There is no evidence that claimant had 
 
            ever been notified that Dr. Durward was not a treating 
 
            physician any longer.  
 
            
 
                 Furthermore, the fact that the employer and the 
 
            insurance carrier paid for Dr. Durward's charges and the 
 
            hospitalization expenses he ordered, constitute Dr. Durward 
 
            as a treating physician (tr. p. 69).  A physician chosen by 
 
            the employee, but adopted by the employer's insurance 
 
            carrier is considered to be an employer retained physician.  
 
            Coble v. Metromedia, Inc., Thirty-fourth Biennial Report of 
 
            the Industrial Commissioner 71 (1979).  Under section 85.27, 
 
            the employer has the right to choose the physician.  
 
            However, when the employer and insurance carrier acquiesce 
 
            in the care of the physician chosen by the claimant, then 
 
            this physician is considered to be an employer retained 
 
            physician.  Munden v. Iowa Steel & Wire, Thirty-third Report 
 
            of the Industrial Commissioner 99 (1977); Conte v. Heartland 
 
            Lysine, file number 900546 (filed June 13, 1991).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to $60.98 for prescriptions ordered by Dr. Durward on 
 
            February 15, 1989 and March 1, 1989 (ex. 63).  For the same 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            reason, claimant is entitled to the $34.32 in mileage 
 
            expense to see Dr. Durward on February 15, 1989 and March 6, 
 
            1989, and also to attend the physical therapy and receive 
 
            the injections that he ordered which is itemized and shown 
 
            as a mileage expense of $120.12.  
 
            
 
                 The charges in the amount of $150 for Armand Gilbo, 
 
            D.C., in Las Vegas (ex. 60) are denied because Dr. Gilbo was 
 
            not an authorized treating physician.  Claimant admitted 
 
            that Dr. Gilbo was not authorized (tr. p. 61).
 
            
 
                 The medical expenses allowed above total $215.42.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained a 15 percent industrial 
 
            disability to the body as a whole and is entitled to 75 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u); Diederich v. Tri-City R. Co., 219 Iowa 
 
            587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 That claimant is entitled to $215.42 in medical 
 
            expenses as shown above.  Iowa Code section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits based upon a 
 
            fifteen (15) percent industrial disability to the body as a 
 
            whole at the stipulated rate of one hundred seventy-seven 
 
            and 16/100 dollars ($177.16) per week in the total amount of 
 
            thirteen thousand two hundred eighty-seven dollars ($13,287) 
 
            commencing on May 2, 1988, the date stipulated to by the 
 
            parties.
 
            
 
                 That defendants are entitled to a credit for fifty (50) 
 
            weeks of permanent partial disability benefits paid to 
 
            claimant prior to hearing at the rate of one hundred 
 
            seventy-seven and 16/100 dollars ($177.16) per week in the 
 
            total amount of eight thousand eight hundred fifty-eight 
 
            dollars ($8,858) as stipulated to by the parties.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay to claimant two hundred fifteen and 
 
            42/100 dollars ($215.42) in medical expenses.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code section 86.19(1).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. William L. Miller
 
            Attorney at Law
 
            509 9th St.
 
            Sioux City, Iowa  51101
 
            
 
            Mr. James M. Cosgrove
 
            Attorney at Law
 
            1109 Badgerow Bldg.
 
            PO Box 1828
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51401 51402.40 51803 51402.60 
 
                                          51501 52700
 
                                          Filed September 5, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            BETTY ROBSON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  888702
 
            WOODBURY COUNTY,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL INS.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51401 51402.40 51803
 
            Claimant, age 38, high school education, with several other 
 
            special training certificates and qualifications, was not 
 
            foreclosed from any former employments, was given no 
 
            permanent restrictions, and was awarded a 10 percent 
 
            permanent impairment rating.  The treating physician, and 
 
            others, said she had a chronic pain syndrome.  Claimant's 
 
            motivation to find full-time employment was questioned.  
 
            Claimant did not prove she was fired by employer.  Although 
 
            claimant was impeached on some points in her early medical 
 
            history, it did not significantly affect the determination 
 
            of the issues in this case.  Claimant awarded 15 percent 
 
            industrial disability to the body as a whole
 
            
 
            51402.60 51501 52700
 
            Claimant was not entitled to air mileage from Las Vegas to 
 
            Sioux City when defendants had authorized neurosurgeons in 
 
            both cities.
 
            Claimant was entitled to see the neurosurgeon in Sioux City 
 
            a year after she was discharged because (1) this doctor's 
 
            authorization was never revoked (2) defendants paid his 
 
            charges.  Therefore, they also owed for the physical therapy 
 
            and epidural injections that he ordered.
 
            All other medical practitioners in dispute were admittedly 
 
            unauthorized.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARLAND HILES,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 888703 
 
         BLUE STAR FOODS,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         MARYLAND CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Garland Hiles 
 
         against her former employer, Blue Star Foods, and its insurance 
 
         carrier, Maryland Casualty.  At the time of hearing, it was 
 
         stipulated by the parties that claimant had injured her left arm 
 
         on April 5, 1987 as alleged in the petition.  It was also 
 
         stipulated that all benefits payable under section 85.27 of The 
 
         Code had been paid and that claimant had no medical evidence to 
 
         support a claim for permanent disability of any degree.  It was 
 
         stipulated that she lost no time from work as a result of the 
 
         injury and had continued to work for the employer until she 
 
         retired.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The stipulation made by the parties is relied upon.  It is 
 
         found that Garland Hiles injured her left arm on August 5, 1987, 
 
         but that the injury did not disable her from performing the 
 
         normal duties of her employment.  It is further found that the 
 
         employer has 'aid all' expenses of medical treatment incurred as 
 
         a result of that injury.  It is further found that the record 
 
         does not contain sufficient evidence to support an award of 
 
         permanent partial disability.
 
         
 
         
 
         
 
         HILES v. BLUE STAR FOODS
 
         Page 2
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              It is therefore concluded that claimant sustained an injury 
 
         to her left arm on August 5, 1987 which arose out of and in the 
 
         course of her employment with Blue Star Foods, Inc.  It is 
 
         further concluded that claimant is not entitled to recover any 
 
         weekly compensation for temporary or permanent disability 
 
         resulting from that injury under the provisions of Iowa Code 
 
         sections 85.33 or 85.34.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Since defendants had denied that claimant sustained any 
 
         injury which arose out of and in the course of employment and 
 
         claimant prevails on that issue, the claimant is entitled to 
 
         recover the costs of this action.
 
         
 
              Claimant's entitlement to benefits under the provisions of 
 
         Iowa Code section 85.27 has been fully satisfied.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 25th day of June, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Murphy
 
         Attorney at Law
 
         100-101 Park Building
 
         Council Bluffs, Iowa 51503
 
         
 
         Mr. Philip Willson
 
         Attorney at Law
 
         35 Main Place
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2907
 
                                         Filed June 25, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARLAND-HILES,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 888703 
 
         BLUE STAR FOODS,
 
                                         A R B I T R A T I 0 N
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         MARYLAND CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2907
 
         
 
              Claimant, who established injury arising out of and in the 
 
         course of employment, was entitled to recover costs, but failed 
 
         to meet burden of proving any entitlement to weekly benefits.  
 
         Section 85.27 benefits had been previously paid voluntarily.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1803
 
                      Filed June  26, 1991
 
                      Larry P. Walshire
 
            Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HELEN BRUDNIDGE,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :File Nos.  888707 & 888708
 
            CEDAR RAPIDS MEATS, INC. d/b/a:
 
            FARMSTEAD FOODS, and WILSON   :
 
            FOODS COMPANY,
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            SENTRY INSURANCE COMPANY,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Extent of permanent disability benefits.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                    
 
         HELEN BRUNDIDGE,     
 
                    
 
              Claimant,  
 
                    
 
         vs.        
 
                                               File No. 888708
 
         CEDAR RAPIDS MEATS, INC. d/b/a 
 
         FARMSTEAD FOODS, AND WILSON            A P P E A L
 
         FOODS COMPANY,  
 
                                               D E C I S I O N
 
              Employer,  
 
                    
 
         and        
 
                    
 
         SENTRY INSURANCE COMPANY,      
 
                    
 
              Insurance Carrier,   
 
              Defendants.     
 
         ___________________________________________________________
 
         
 
                                 INTRODUCTION
 
         
 
         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
 
         
 
         Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issues raised on appeal are:
 
         
 
              1. Whether the deputy erred in finding the claimant had 
 
                 a pre-existing, permanent disability which would 
 
                 qualify as a first injury under Iowa Code section 
 
                 85.64?
 
         
 
              2. Whether the deputy erred in determining that the 
 
                 claimant's industrial disability attributable to the 
 
                 injuries to her upper extremities, after reduction 
 
                 for the compensable value of those injuries, was 
 
                 sufficient to require further payment of benefits 
 
                 from the fund?
 
         
 
                              FINDINGS OF FACT
 
         
 
         The findings of fact contained in the proposed agency decision 
 
         filed June 26, 1991 are adopted as final agency action.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
         The conclusions of law contained in the proposed agency decision 
 
         filed June 26, 1991 are adopted as set forth below.  Segments 
 
         designated by asterisks (*****) indicate portions of the language 
 
         from the proposed agency decision that have been intentionally 
 
         deleted and do not form a part of this final agency decision.  
 
         Segments designated by brackets ([ ]) indicate language that is 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         in addition to the language of the proposed agency decision.
 
         
 
              Claimant seeks additional disability benefits from the 
 
         second injury fund under Iowa Code section 85.63 through 85.69.  
 
         The fund was created to compensate an injured worker for 
 
         permanent industrial disability resulting from the combined 
 
         effects of two separate prior injuries.  The purpose of such a 
 
         scheme of compensation was to encourage to hire and retain 
 
         handicapped workers and disabled veterans.  See Anderson v. 
 
         Second Injury Fund, 262 N.W.2d 789 (Iowa 1978).  There are three 
 
         requirements under the statute to invoke fund liability.  First, 
 
         there must be a permanent loss or loss of use of one hand, arm, 
 
         foot, leg or eye.  Second, there must be a permanent loss or loss 
 
         of use of another such member or organ through a subsequent 
 
         injury.  Third, there must be a permanent industrial disability 
 
         to the body as a whole arising from both the first and second 
 
         injuries which is greater in terms of relative weeks of 
 
         compensation than the sum of the scheduled allowances for those 
 
         injuries.  If there is a greater industrial disability to the 
 
         combined effects of the prior loss and the secondary loss than 
 
         equals the value of the prior and second losses combined, then 
 
         the fund will be charged with the difference.  Second Injury Fund 
 
         v. Neelens, 436 N.W.2d 355 (Iowa 1989).  
 
         *****
 
         [Claimant reported bilateral complaints from July, 1984 on.  
 
         Although her surgeries for each arm were one month apart,  
 
         claimant's left and right arm conditions were basically caused by 
 
         the same repetitive trauma processes.  Claimant has suffered a 
 
         simultaneous bilateral injury.  See Kebernik v. Thatcher Plastic 
 
         Packaging, Arbitration Decision, December 22, 1988;  Jones v. 
 
         Lamoni Products, Arbitration Decision, May 29, 1991;  Torgerson 
 
         v. Webster City Custom Meats, Appeal Decision, July 30, 1992. 
 
         The record does show that claimant's symptoms in her hands began 
 
         two years apart.  However, claimant then continued to work for 
 
         several years, experiencing bilateral symptoms.  When claimant 
 
         sought medical treatment, claimant was diagnosed as having 
 
         bilateral carpal tunnel syndrome.
 
         
 
         There is no showing that, during the two years between the onset 
 
         of symptoms in each upper extremity, claimant suffered 
 
         disability.  The mere onset of symptoms at separate points in 
 
         time does not necessitate a finding of two separate injuries.  
 
         Where, as here, one continuous work activity eventually results 
 
         in claimant being compelled to leave work or seek medical 
 
         attention for bilateral conditions, the greater weight of the 
 
         evidence indicates a single simultaneous injury.  This case is 
 
         distinguishable from Harris v. Wilson Foods Corporation, Appeal 
 
         Decision, December 22, 1988, File Nos. 688326 and 808328, where 
 
         claimant also experienced the onset of symptoms approximately two 
 
         years apart.  However, in the Harris case, claimant missed work 
 
         and underwent surgery on the first arm to display symptoms before 
 
         developing a problem with the second arm.  Clearly, under those 
 
         facts, claimant had suffered two separate and distinguishable 
 
         injuries.  In this case, by contrast, between the point in time 
 
         when symptoms first appeared in one upper extremity in 1974, and 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         when they began to appear in the other upper extremity in 1976, 
 
         claimant was not disabled and, in fact, did not become disabled 
 
         until many years later.  Claimant's condition is a single, 
 
         simultaneous, bilateral repetitive motion injury.
 
         In order to qualify for benefits from the Second Injury Fund of 
 
         Iowa, claimant must show that she has suffered both a prior loss 
 
         of a member enumerated in Iowa Code 85.64, and a later loss of 
 
         another member under that section.  As claimant has shown only a 
 
         single simultaneous injury, claimant has not met her burden of 
 
         proof to show entitlement to benefits from the fund.]
 
         
 
         WHEREFORE, the decision of the deputy is affirmed and modified.
 
         
 
                                    ORDER
 
         
 
         THEREFORE, it is ordered:
 
         
 
         That claimant shall take nothing from the Second Injury Fund of 
 
         Iowa.
 
         
 
         That the Second Injury Fund shall pay the costs of the appeal, 
 
         including the preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James E. Shipman
 
         Mr. James M. Peters
 
         Mr. Matthew J. Brandes
 
         Attorneys at Law
 
         1200 MNB Building
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3203; 2209
 
                                                 Filed May 18, 1993
 
                                                 BYRON K. ORTON
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            HELEN BRUNDIDGE,     
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                                 File No. 888708
 
            CEDAR RAPIDS MEATS, INC. d/b/a 
 
            FARMSTEAD FOODS, AND WILSON            A P P E A L
 
            FOODS COMPANY,  
 
                                                 D E C I S I O N
 
                 Employer,  
 
                       
 
            and        
 
                       
 
            SENTRY INSURANCE COMPANY,      
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
            
 
            
 
            3203; 2209
 
            
 
            Claimant's bilateral repetitive motion arm injury found to 
 
            be a single simultaneous injury under 85.34(2)(s).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HELEN BRUNDIDGE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :File Nos.  888707 & 888708
 
            CEDAR RAPIDS MEATS, INC. d/b/a:
 
            FARMSTEAD FOODS, and WILSON   :
 
            FOODS COMPANY,
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SENTRY INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Helen 
 
            Brundidge, claimant, against the Second Injury Fund of Iowa, 
 
            a special fund administered by the treasurer of the State of 
 
            Iowa, defendant, for workers' compensation benefits as a 
 
            result of alleged injuries on August 8, 1985 and September 
 
            19, 1985.  On June 6, 1991 a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.  
 
            Official notice of other pending claim files with the agency 
 
            was taken as the request of the parties at hearing.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On August 8, 1985 and again on September 18, 1985, 
 
            claimant received injuries which arose out of and in the 
 
            course of her employment.
 
            
 
                 2.  If permanent disability benefits are awarded in 
 
            this proceeding, they shall begin as of November 18, 1985.
 
            
 
                 3.  Claimant's rate of weekly compensation shall be 
 
            $207.37.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 At hearing, claimant moved to amend his pleadings to 
 
            include an injury the claimant's knee in July 1980 as a 
 
            prior injury to invoke fund liability.  Such an injury date 
 
            was not originally pled in claimant's petition against the 
 
            fund.  
 
            
 
                 This motion must be denied on the basis of fairness.  
 
            Prior to the hearing, claimant was asked in an interrogatory 
 
            from the fund to set forth the injuries upon which fund 
 
            liability was claimed.  No mention of a July 1980 injury was 
 
            made in the response to this interrogatory and no 
 
            supplementation of the response occurred prior to hearing.  
 
            It is found that the fund is prejudiced by this delay.  
 
            Given the numerous and prior subsequent injuries suffered by 
 
            claimant in this case, it would be an undue burden to 
 
            require the fund's attorneys to guess as to which injury 
 
            claimant was attempting to use as a basis for her claim.  It 
 
            is reasonable for the fund to rely upon answers to 
 
            interrogatories in preparing for trial.  In this case, the 
 
            fund's attorney at hearing stated that he would have 
 
            conducted the deposition of one medical expert in this case 
 
            much differently had he known of the potential use of a July 
 
            1980 injury to invoke fund liability.  Therefore, the 
 
            alleged prior injury of July 1980 will not be considered in 
 
            this decision as a qualifying prior injury for the purposes 
 
            of determining fund liability.  
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to disability benefits from the second injury 
 
            fund.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the various 
 
            injuries and disability she has suffered.  From her demeanor 
 
            while testifying, claimant is found credible.
 
            
 
                 Claimant is a former meat packer.  Claimant's last 
 
            employment was with Cedar Rapids Meats doing business as 
 
            Farmstead Foods.  Actually, claimant has worked at the same 
 
            packing house location since 1963.  The plant was formerly 
 
            owned and operated by a company called Wilson and Company.  
 
            Farmstead Foods closed due to bankruptcy in March 1990.  
 
            Claimant was working at the plant at the time it closed.  
 
            Prior to the plant closure, claimant had worked on the bacon 
 
            line as a scaler since 1982.  She had worked in other 
 
            departments prior to that time. 
 
            
 
                 In the prehearing report, the parties stipulated as to 
 
            the occurrence of two work injuries.  The claimant's injury 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            on August 8, 1985, occurred as a result of a surgery to her 
 
            left hand and wrist.  This surgery removed a cyst and 
 
            repaired a trigger finger in the left hand.  Claimant's 
 
            problems with left hand and wrist pain and cyst development 
 
            began long before in 1974 while working at the packing 
 
            house.  Claimant received treatment in the form of wrapping 
 
            of the wrist initially, but lost no time from work.  
 
            Claimant testified that the problems gradually worsened over 
 
            the next several years.
 
            
 
                 Claimant's injury on September 19, 1985, occurred as a 
 
            result of a surgery to her right hand and wrist.  The 
 
            surgery involved a release of the tendons and nerves in the 
 
            carpal tunnel of the right hand and wrist.  Claimant also 
 
            had a history of right wrist and arm pain dating back to 
 
            1974 according to the records of her treating physician.  
 
            
 
                 Claimant suffered increased symptoms of swelling, pain 
 
            and numbness in both of her hands and arms during the two 
 
            years prior to her surgeries.  Claimant was working at 
 
            Farmstead on the bacon line as a scaler at this time.  Her 
 
            wrists had to be wrapped daily to minimize the pain and 
 
            swelling.  Claimant only lifted a few pounds at a time in 
 
            the scaling process, but this was rapid repetitive motion.
 
            
 
                 According to the physician who performed the surgeries 
 
            on the right and left wrists and hands, William Eversmann, 
 
            Jr., M.D., an orthopedic surgeon, claimant suffers from 
 
            permanent partial impairment as a result of those surgeries.  
 
            Dr. Eversmann rated claimant's permanent partial impairment 
 
            to be 14 percent of the left arm and 24 percent of the right 
 
            arm. He attributes all of this impairment to the surgeries 
 
            as explained in Evermann's letter to claimant's attorney 
 
            which is set forth in exhibit 1, page 41.  The only other 
 
            rating of impairment, by claimant's physicians appearing in 
 
            the record, was done by another treating orthopedic surgeon, 
 
            William Roberts, M.D., who rated claimant's back and left 
 
            knee permanent impairment as a result of a work injury at 
 
            Farmstead in March 1988.  Dr. Roberts felt at that time that 
 
            claimant suffered from an 18 percent permanent partial 
 
            impairment to the body as a whole as a result of the low 
 
            back and left knee problems.
 
            
 
                 Claimant's left knee problems actually began much 
 
            earlier in July 1980, when a car struck her in the left 
 
            knee.  The knee began to hurt and swell according to 
 
            claimant and she sought medical treatment.  However, 
 
            claimant lost no time from work after this incident.  
 
            Claimant stated that the knee never fully recovered and at 
 
            the present time the knee still "goes out" after prolonged 
 
            walking and that she must limp on days the pain flares up in 
 
            her knee.  Claimant has asserted  compensable knee and low 
 
            back injuries between 1986 and 1988.  In May 1986, 
 
            claimant's knee went out while getting into her car at home.  
 
            In January and May of 1987, claimant suffered back and knee 
 
            injuries from falls at work.  Claimant stated that she 
 
            continues to have problems after these incidents.  However, 
 
            according to claimant, the most significant injury to her 
 
            back occurred in March 1988 at work and these back problems 
 
            have been "bad" ever since.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 No physician opined that claimant suffered permanent 
 
            partial impairment due to the knee problems prior to the 
 
            March 1988 injury at Farmstead and no work restrictions were 
 
            imposed.  Claimant had an auto accident injury on February 
 
            21, 1989, involving an injury to her low back and left knee.  
 
            Dr. Roberts, in his letter to claimant's attorney, ex. 1, p. 
 
            42, indicated that this incident did not cause any addition 
 
            to her prior permanent partial impairment.  Dr. Roberts 
 
            attributed the back impairment to the work injury in March 
 
            of 1988, but he was not very specific as to the cause of the 
 
            knee impairment he rated.
 
            
 
                 As a result of the combined effects of the work 
 
            injuries to claimant's left and right hand and arm on August 
 
            8, 1985 and September 19, 1985, claimant suffered a 40 
 
            percent loss of earning capacity.  She had no ascertainable 
 
            disability independent of her employment prior to these two 
 
            work injuries.  Claimant had bilateral hand, arm and wrist 
 
            problems, but was always able to return to work with little 
 
            or no loss of time from work.  Claimant's daughter and a 
 
            fellow employee both testified credibly that claimant had 
 
            few physical problems prior to the arm surgeries.  After 
 
            these two work injuries claimant did return to work, but 
 
            continued to have extensive problems with her hands and 
 
            arms.  Claimant left her packing house work only when the 
 
            plant went bankrupt and closed.  However, her physicians 
 
            noted claimant's continuing significant complaints while she 
 
            was working and noted that the claimant had a substantial 
 
            need to remain employed despite the pain. 
 
            
 
                 Claimant suffered ascertainable permanent partial 
 
            impairment and disability subsequent to her second injury 
 
            for which the fund is not liable.  Claimant cannot perform 
 
            much of the past and present work due to the subsequent back 
 
            and knee impairments.  
 
            
 
                 Since leaving Farmstead's employ, claimant has been 
 
            primarily unemployed.  She attempted to return to work to a 
 
            nursing home, but was fired after only a few weeks for being 
 
            physically unable to perform the duties in a timely fashion.  
 
            These duties involved manual labor in the lifting and 
 
            pushing and handling of clothes and bedding.  Claimant is 
 
            currently attending a retraining course at a local community 
 
            college, but is not doing well in bookkeeping and keyboard 
 
            work due to her continuing hand and arm impairments.  
 
            Claimant is certified at 25 words per minute, but has no 
 
            long-term endurance.  Claimant has failed on two occasions 
 
            to pass the math portion on the test to obtain her GED.  
 
            Claimant must rest five minutes after every 15 minutes of 
 
            typing.  Claimant has looked for suitable work in the area 
 
            of her residence, but has been unsuccessful.  The depressed 
 
            local economy has much to do with claimant's lack of 
 
            success.  Claimant's work history primarily involves factory 
 
            work and manual labor in laundry.  Claimant's disability 
 
            limits her ability to perform the work for which she is best 
 
            suited given her past experience and schooling.  
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant seeks additional disability benefits from the 
 
            second injury fund under Iowa Code section 85.63 through 
 
            85.69.  The fund was created to compensate an injured worker 
 
            for permanent industrial disability resulting from the 
 
            combined effects of two separate prior injuries.  The 
 
            purpose of such a scheme of compensation was to encourage to 
 
            hire and retain handicapped workers and disabled veterans.  
 
            See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 
 
            1978).  There are three requirements under the statute to 
 
            invoke fund liability.  First, there must be a permanent 
 
            loss or loss of use of one hand, arm, foot, leg or eye.  
 
            Second, there must be a permanent loss or loss of use of 
 
            another such member or organ through a subsequent injury.  
 
            Third, there must a permanent industrial disability to the 
 
            body as a whole arising from both the first and second 
 
            injuries which is greater in terms of relative weeks of 
 
            compensation than the sum of the scheduled allowances for 
 
            those injuries.  If there is a greater industrial disability 
 
            to the combined effects of the prior loss and the secondary 
 
            loss than equals the value of the prior and second losses 
 
            combined, then the fund will be charged with the difference.  
 
            Second Injury Fund v. Neelens, 436 N.W.2d 355 (Iowa 1989).  
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 24 percent permanent partial impairment to the 
 
            arm as a result of the compensable injury of September 19, 
 
            1985, and at that time, she had previously suffered a 14 
 
            percent permanent partial impairment to the opposite arm as 
 
            a result of the injury August 8, 1985.
 
            
 
                      Permanent partial disabilities are classified as 
 
                 either scheduled or unscheduled.  A specific scheduled 
 
                 disability is evaluated by the functional method; the 
 
                 industrial method is used to evaluate an unscheduled 
 
                 disability.  Martin v. Skelly Oil Co., 252 Iowa 128, 
 
                 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
                 Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
                 Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When the 
 
                 result of an injury is loss to a scheduled member, the 
 
                 compensation payable is limited to that set forth in 
 
                 the appropriate subdivision of Code section 85.34(2).  
 
                 Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 
 
                 660 (1961).  "Loss of use" of a member is equivalent to 
 
                 'loss' of the member.  Moses v. National Union C.M. 
 
                 Co., 194 Iowa 819, 184 N.W. 746 (1922).  Pursuant to 
 
                 Code section 85.34(2)(u) the industrial commissioner 
 
                 may equitably prorate compensation payable in those 
 
                 cases wherein the loss is something less than that 
 
                 provided for in the schedule.  Blizek v. Eagle Signal 
 
                 Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 Therefore, based upon the findings of permanent partial 
 
            impairment to both arms, claimant's permanent partial 
 
            disability as a result of the compensable injury of 
 
            September 19, 1985, is equivalent to 60 weeks of benefits 
 
            under Iowa Code section 85.34(2)(m), which is 24 percent of 
 
            250 weeks, the maximum allowable for an injury to an arm in 
 
            that subsection.  Claimant's permanent partial disability as 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a result of the injury of August 8, 1985, is equivalent to 
 
            35 weeks of benefits under Iowa Code section 85.34(2)(m), 
 
            which is 14 percent of 250 weeks, the maximum allowable on 
 
            injuries to the arm in that subsection.
 
            
 
                 Turning to the assessment of industrial disability as a 
 
            result of the combined effects of both qualifying injuries, 
 
            the degree of permanent disability must be measured pursuant 
 
            to Iowa Code section 85.34(2)(u).  However, unlike scheduled 
 
            member disabilities, the degree of disability under this 
 
            provision is not measured solely by the extent of a 
 
            functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v. Tri-City Railway Co., 219 Iowa 
 
            587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  The extent to which a work injury 
 
            and a resulting medical condition has resulted in an 
 
            industrial disability is determined from examination of 
 
            several factors.  These factors include the employee's 
 
            medical condition prior to the injury, immediately after the 
 
            injury and presently; the situs of the injury, its severity 
 
            and the length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In this case, it was found that the combined effects of 
 
            both the first and second injuries resulted in a 40 percent 
 
            industrial disability or loss of earning capacity.  Based 
 
            upon such a finding, claimant's entitlement is a matter of 
 
            law at 200 weeks of permanent partial disability benefits 
 
            under Iowa Code section 85.34(2)(u), which is 40 percent of 
 
            500 weeks, the maximum allowable for an injury to the body 
 
            as a whole in that subsection.
 
            
 
                 The fund is liable for only a portion of this amount.  
 
            According to Iowa Code section 85.64 the fund is liable for 
 
            the remaining amount of this disability after first 
 
            deducting 95 weeks of permanent partial disability caused by 
 
            the first and second injuries.  The remaining 105 weeks will 
 
            begin as stipulated by the parties on November 18, 1985.  
 
            Interest on this award shall begin on the date of this 
 
            decision.  Second Injury Fund v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990).  
 
            
 
                                      order
 
            
 
                 1.  The claim against the fund in file number 888707 is 
 
            dismissed with prejudice.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 2.  In file number 888708, the treasurer of the State 
 
            of Iowa, as custodian for the second injury fund, shall pay 
 
            from the fund to claimant one hundred five (105) weeks of 
 
            permanent partial disability benefits at the rate of two 
 
            hundred seven and 37/100 dollars ($207.37) per week from 
 
            November 18, 1985.
 
            
 
                 3.  The treasurer shall pay from the second injury fund 
 
            accrued weekly benefits in a lump sum.
 
            
 
                 4.  The treasurer shall pay from the second injury fund 
 
            interest on weekly benefits awarded herein as set forth in 
 
            Iowa Code section 85.30.
 
            
 
                 5.  In both claims, the treasurer shall pay from the 
 
            second injury fund the costs of this action pursuant to rule 
 
            343 IAC 4.33, including reimbursement to claimant for any 
 
            filing fee paid in this matter.
 
            
 
                 6.  The second injury fund shall file activity reports 
 
            as to the payment of this award as requested by this agency 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Matthew J. Brandes
 
            Mr. James Shipman
 
            Mr. James Peters
 
            Attorneys at Law
 
            1200 Merchants National Bank Bldg.
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1803
 
                      Filed June  26, 1991
 
                      Larry P. Walshire
 
            Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            HELEN BRUDNIDGE,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :File Nos.  888707 & 888708
 
            CEDAR RAPIDS MEATS, INC. d/b/a:
 
            FARMSTEAD FOODS, and WILSON   :
 
            FOODS COMPANY,
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            SENTRY INSURANCE COMPANY,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Extent of permanent disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      1100;1402;2801;2500;3201
 
                      Filed March 6, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SIN CHA YI,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File Nos. 845677, 888710
 
            GENERAL MILLS, INC.,     :                888553, 888709
 
                      :
 
                 Employer, :       A R B I T R A T I O N
 
                      :
 
            and       :          D E C I S I O N
 
                      :
 
            LIBERTY MUTUAL,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            Claimant filed four petition alleging injuries to her right 
 
            hand; upper extremities; shoulders; neck; and back.
 
            
 
            1100; 1402; 2801; 2500
 
            File No. 888709 (injury date October 20, 1986) alleged 
 
            injuries to claimant's right hand, arm and shoulder caused 
 
            by overuse.
 
            Claimant proved arising out of and in the course of her 
 
            employment, but failed to prove entitlement to temporary 
 
            total, permament partial or healing period benefits.  
 
            Claimant did not miss work for these injuries, nor was there 
 
            a showing of permanency.
 
            Although defendant employer raised an affirmative defense of 
 
            insufficient notice, it was found that claimant asked her 
 
            supervisor for a wrist band because her wrist hurt.  
 
            Defendant admitted this, and her actions were sufficient to 
 
            put the employer on notice of a incident which needed to be 
 
            investigated.
 
            Claimant awarded medical benefits.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            3201
 
            File No. 845677 (injury date February 19, 197) alleges 
 
            injuries to claimant's right hand due to a traumatic 
 
            incident at work.  Defendant admitted liability, and paid 
 
            medical benefits, healing period and permanent partial 
 
            disability benefits.
 
            Claimant failed to show additional permanency, and defendant 
 
            employer was found not liable for any further compensation.  
 
            Because claimant's first injury did not result in any 
 
            permanency, the Second Injury Fund was not liable for 
 
            benefits.
 
            
 
            1100; 1402; 2801; 2500
 
            File No. 888710 (injury date December 15, 1987) alleged 
 
            injuries to claimant's left hand and arm; shoulder, neck and 
 
            back.
 
            Although defendant employer asserted lack of notice, it was 
 
            found that they received sufficient notice of a potential 
 
            work-related injury, as claimant stated her back and 
 
            shoulders hurt during a meeting with her supervisor and the 
 
            safety director.
 
            Again, claimant presented no evidence that these injuries 
 
            were permanent in nature, and she was awarded medical 
 
            benefits only.
 
            Second Injury Fund not liable.
 
            
 
            1100
 
            File No. 888553 (injury date April 12, 1988) alleged 
 
            injuries to claimant's left and right arms due to overuse.
 
            Claimant failed to prove arising out of and in the course of 
 
            as her work was non-repetitive, and the treating physician 
 
            visited the work environment and stated it would be hard to 
 
            have an easier job to perform.