Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            DONALD DEBOSE,   :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 889569
 
            PROCESS MECHANICAL, INC.,       :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            HARTFORD ITT,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed February 19, 1992 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            A finding of permanent total disability renders the concepts 
 
            of apportionment for prior disability irrelevant.  Tesch v. 
 
            Sieh Farm Drainage Co., Appeal Decision, March 1992; Loftus 
 
            v. Waterloo Community School District, Appeal Decision, 
 
            March 30, 1989; Smith v. Fleetguard, Inc., Appeal Decision, 
 
            December 23, 1991.
 
            Similarly, there is no healing period if an award of 
 
            permanent total disability is made.  Healing period benefits 
 
            are limited to awards of permanent partial disability.  See 
 
            Iowa Code section 85.34(1).
 
            An ability to support oneself is not a factor in determining 
 
            industrial disability.  A worker may not be earning 
 
            sufficient wages to support him or herself prior to 
 
            suffering an injury, and thus assessing whether the injury 
 
            has resulted in an inability to support oneself is not a 
 
            proper part of the evaluation.  Earnings before and after 
 
            the injury are relevant, and the worker's ability to compete 
 
            in the job market before and after the injury is a part of 
 
            industrial disability.  But whether the wages a worker is 
 
            capable of earning are of a level to support the worker, at 
 
            some unknown level of lifestyle, is not an appropriate 
 
            factor of industrial disability per se.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael H. Irvine
 
            Ms. Linda H. Robbins
 
            Attorneys at Law
 
            P.O. Box 2819
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. Chris J. Scheldrup
 
            Mr. Richard P. Moore
 
            Attorneys at Law
 
            P.O. Box 1943
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed February 22, 1993
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            DONALD DEBOSE,   :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 889569
 
            PROCESS MECHANICAL, INC.,       :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            HARTFORD ITT,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803
 
            An ability to support oneself is not a factor in determining 
 
            industrial disability.  A worker may not be earning 
 
            sufficient wages to support him or herself prior to 
 
            suffering an injury, and thus assessing whether the injury 
 
            has resulted in an inability to support oneself after the 
 
            injury is not a proper part of the evaluation.  Earnings 
 
            before and after the injury are relevant, and the worker's 
 
            ability to compete in the job market before and after the 
 
            injury is a part of industrial disability.  But whether the 
 
            wages a worker is capable of earning are of a level to 
 
            support the worker, at some unknown level of lifestyle, is 
 
            not an appropriate factor of industrial disability per se.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD DEBOSE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 889569
 
                                          :
 
            PROCESS MECHANICAL, INC.,     :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD ITT,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Donald 
 
            DeBose against his former employer, Process Mechanical, 
 
            Inc., and its insurance carrier, Hartford ITT, based upon a 
 
            stipulated injury of May 17, 1988.  Claimant seeks 
 
            compensation for permanent total disability and, in support 
 
            of his claim, asserts the odd-lot doctrine.  He also seeks 
 
            to recover mileage expenses.  It was stipulated in the 
 
            prehearing report that the injury is a cause of both 
 
            temporary and permanent disability.  In the event the 
 
            claimant is found to be only partially disabled, then his 
 
            entitlement to healing period compensation must be 
 
            determined.  The primary issues in the case are 
 
            determination of the claimant's entitlement to compensation 
 
            for permanent disability and, if any, healing period.
 
            
 
                 The case was heard at Cedar Rapids, Iowa, on December 
 
            19, 1991.  The evidence consists of testimony from Donald 
 
            DeBose, Thomas W. Magner and Jan DeBose.  The record also 
 
            contains jointly offered exhibits 1 through 25 and 
 
            defendants' exhibits 26 and 27.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Donald DeBose is a 44-year-old married man whose 
 
            education is limited to the eighth grade.  He repeated some 
 
            of the lower grades and did not attempt high school.  His 
 
            reading is limited to things such as road signs.  He can 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            sign his name and copy what someone else has written.  He is 
 
            unable to spell.  His math capabilities are limited to 
 
            simple addition and subtraction.  He is unable to multiply 
 
            or divide.  Donald has never been tested to determine the 
 
            cause for his apparent learning disability.
 
            
 
                 Donald has generally been employed throughout most of 
 
            his life.  He stated that he was never denied a job due to 
 
            his lack of reading ability because he did not apply for 
 
            jobs that required reading.  His father and a brother also 
 
            are unable to read.  Donald's work has involved moderate to 
 
            heavy physical labor.  After leaving school, he performed 
 
            odd jobs and farm labor.  He has worked as a gas station 
 
            attendant.  At age 19, he entered into a six- or seven-year 
 
            course of performing oil field work.  He then drove a tank 
 
            truck in the oil fields for three or four years.  At the 
 
            times when he was laid off, he typically supported himself 
 
            through odd jobs, mowing lawns and similar activities.
 
            
 
                 In late 1985 or 1986, Donald moved to Cedar Rapids, 
 
            Iowa, in order to become a carpenter for Process Mechanical, 
 
            Inc.  Though he was classified as a carpenter, he performed 
 
            a variety of activities including building shelves and 
 
            scaffolds.  He performed welding and other metal work.  The 
 
            work was described as heavy.  It required climbing, lifting, 
 
            stooping, kneeling, crouching and crawling.  Some activities 
 
            required work from ladders.  It was not uncommon for him to 
 
            work ten or eleven hours per day.  Donald's starting pay at 
 
            Process Mechanical, Inc., was $10.00 per hour.  It had risen 
 
            to $11.50 per hour at the time of his injury.
 
            
 
                 Donald was injured on May 17, 1988, while building a 
 
            metal structure commonly referred to as a "dog house."  The 
 
            process involved going up and down ladders.  According to 
 
            Donald, he pulled something in his back late in that 
 
            afternoon and it burned, but he did not believe it to be 
 
            serious.  Donald had difficulty at home that night but went 
 
            to work the following day.  He then saw the company 
 
            physician, Kenneth Cearlock, M.D.  Dr. Cearlock administered 
 
            conservative treatment for Donald's back, but it did not 
 
            give Donald any relief.  Donald sought treatment on his own 
 
            from Barth Adolphson, D.C., but received little benefit.  
 
            Dr. Cearlock then referred Donald to orthopaedic surgeon W. 
 
            John Robb, M.D.  Dr. Robb applied more conservative 
 
            treatment and released claimant to quite restricted work 
 
            effective September 28, 1988, but no conforming work was 
 
            available (exhibit 8A, page 14).  On October 24, 1988, Dr. 
 
            Robb directed that claimant enroll in a work hardening 
 
            program.  He projected that in 4-6 weeks, Donald would be 
 
            able to return to work at his regular occupation (exhibit 
 
            8A, page 28).  Donald was not particularly conscientious in 
 
            following Dr. Robb's recommendations.  He did not follow the 
 
            recommendations for therapy and missed several appointments.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            When Dr. Robb saw claimant during the initial course of 
 
            treatment on November 15, 1988, he intended to evaluate 
 
            Donald's permanent impairment and release him to resume work 
 
            at the next visit (exhibit 4; exhibit 8A, pages 30 and 31).  
 
            Donald did not return for any subsequent visits until August 
 
            10, 1989 (exhibit 8A, pages 32-34).  At that time, Dr. Robb 
 
            assigned a 15 percent impairment rating, one-half of which 
 
            he attributed to Donald's underlying degenerative disc 
 
            disease.  The other half he attributed to the May 1988 
 
            injury.  Dr. Robb diagnosed Donald as having degenerative 
 
            disc disease, a lumbosacral strain which was an aggravation 
 
            of a preexisting condition.  He felt that claimant would 
 
            improve with a reasonably aggressive activity program such 
 
            as the one Dr. Robb had previously recommended but claimant 
 
            had ceased to follow.
 
            
 
                 In approximately late 1988, Donald moved with his 
 
            family back to the area of Eldorado, Illinois, where other 
 
            members of his family live.  He began treatment with H. 
 
            Andrew Cserny, M.D., and was referred to neurosurgeon Carey 
 
            W. Campbell, M.D.  Dr. Campbell reviewed claimant's 
 
            diagnostic studies and found him to have protruding discs 
 
            and osteophytes at the L3-4 and L4-5 levels of his spine 
 
            (exhibit 2, page 61).  Dr. Campbell diagnosed claimant's 
 
            condition as degenerative.  He reported that there is no 
 
            significant correlation between the condition and industrial 
 
            back problems.  He reported that claimant would have 
 
            episodes of back symptoms without any apparent provocation, 
 
            but that the symptoms would usually resolve in a week or two 
 
            and that, when asymptomatic, claimant could perform normal 
 
            work (exhibit 2, page 63).  Dr. Campbell felt that 
 
            claimant's condition was not the result of a "medical 
 
            injury" and that it was a condition similar to that which 
 
            had afflicted claimant for approximately 20 years.  Dr. 
 
            Campbell felt that claimant's symptoms were not severe and 
 
            that claimant was poorly motivated.  He recommended that 
 
            surgery not be performed (exhibit 2, pages 61 and 62).
 
            
 
                 Donald sought treatment from William C. Madauss, M.D., 
 
            in Evansville, Indiana.  When Dr. Madauss initially saw 
 
            claimant in January 1989, he found the neurological 
 
            examination to be normal and identified no surgically 
 
            correctable conditions.  He recommended against surgery and 
 
            advised continued physical therapy.  Donald again sought 
 
            treatment from Dr. Madauss in November 1989 and more tests 
 
            were performed.  Dr. Madauss then interpreted Donald's 
 
            x-rays as showing spinal instability, particularly at the 
 
            L2-3 and L3-4 levels of Donald's spine (exhibit 6, page 65).  
 
            On February 26, 1990, Donald entered Welborn Baptist 
 
            Hospital in Evansville, Indiana, and underwent fusion 
 
            surgery using Knodt rod, wires and autograft in order to 
 
            stabilize the unstable L2-L4 region of his spine (exhibit 6, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            pages 73-80).
 
            
 
                 Donald made an apparently unremarkable recovery.  Dr. 
 
            Madauss initially indicated that it would require one year 
 
            before maximum medical improvement would be obtained 
 
            (exhibit 6, pages 81 and 83).  On December 5, 1990, however, 
 
            Dr. Madauss provided Donald with a 35 percent permanent 
 
            impairment rating.  He found that the incision was well 
 
            healed and the fusion mature.  A detailed impairment rating 
 
            was given.  When deposed on August 29, 1991, Dr. Madauss 
 
            confirmed that claimant had reached maximum medical 
 
            improvement on December 5, 1990 (exhibit 22, page 19).  Dr. 
 
            Madauss found claimant to be 35 percent permanently impaired 
 
            (exhibit 6, pages 84 and 85; exhibit 22, pages 20 and 21).  
 
            Dr. Madauss stated that claimant would be unable to resume 
 
            heavy work and that he should not lift more than one-fourth 
 
            of his total body weight even occasionally and that repeated 
 
            lifting should be limited to approximately ten pounds.  Dr. 
 
            Madauss indicated that he relied on physical therapist John 
 
            Lisman when determining functional capacity and similar 
 
            issues (exhibit 22, pages 25-28).  Lisman evaluated 
 
            claimant's functional capacity on December 10, 1990.  He 
 
            found claimant to be capable of sedentary or lower light 
 
            work.  The tests showed Donald to have a loss of his trunk 
 
            range of motion, as well as decreased strength in his lower 
 
            extremities, trunk and abdomen.  Lisman noted that claimant 
 
            perceives himself as having equivocal to high pain and 
 
            disability.  Lisman also noted that Donald displayed maximum 
 
            effort and was consistent in the testing.
 
            
 
                 When questioned concerning causation, Dr. Madauss found 
 
            no reason to dispute the May 1988 incident as the cause of 
 
            the claimant's back problems (exhibit 22, pages 21-25).
 
            
 
                 Vocational consultant Thomas W. Magner found Donald to 
 
            have very few transferrable skills.  He stated that Donald 
 
            had been able to work in the past through his ability to do 
 
            physical labor, but that he is now limited to sedentary or 
 
            lower light exertional tasks.  Magner stated that most jobs 
 
            which permit frequent position changes are managerial or 
 
            professional.  In his report, exhibit 16, Magner stated that 
 
            claimant cannot maintain any regular competitive employment 
 
            position.  When testifying at hearing, Magner expressed the 
 
            opinion that Donald would not be able to perform his former 
 
            work at Process Mechanical, Inc.  He likewise expressed the 
 
            opinion that there are no jobs available in the job market 
 
            which claimant can perform and that there is no reasonably 
 
            stable market for Donald's services in the competitive labor 
 
            market.  He went on to state that he did not expect any 
 
            market for claimant's services to develop in the future.  
 
            Magner related that lighter work normally requires the 
 
            ability to read.
 
            
 
                 Exhibit 27 is a copy of office notes showing that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant was having back problems in 1987.  He has had 
 
            several episodes of prior back problems but always recovered 
 
            sufficiently to resume his normal work.
 
            
 
                 Exhibit 24 shows Donald to have traveled a total of 
 
            1,540 miles in obtaining medical treatment.  At the rate of 
 
            $.21 per mile, this computes to $323.40.  Donald's income 
 
            tax returns show a significant drop in his income from 1987 
 
            to 1988, the year in which he was injured.
 
            
 
                 Since recovering from the surgery, Donald has expressed 
 
            complete satisfaction with the results of the surgery.  He 
 
            stated that it has greatly improved his symptoms.  Donald 
 
            has sought employment at a few sources but has not been 
 
            successful.  He is reluctant to accept a job which would 
 
            threaten the continuity of his Social Security disability 
 
            payments, particularly if the pay for the job under 
 
            consideration is significantly less than what he receives 
 
            from Social Security and workers' compensation.
 
            
 
                 The assessment of this case as made by Dr. Madauss is 
 
            found to be correct.  The assessment made by Thomas Magner 
 
            is likewise found to be correct.  It is found that Dr. Robb 
 
            somehow missed the instability condition which was found by 
 
            Dr. Madauss.  Dr. Robb was not asked to review the x-rays or 
 
            other diagnostic test results which were relied upon by Dr. 
 
            Madauss to diagnose the spinal instability.  Since even Dr. 
 
            Madauss did not initially identify the condition, it cannot 
 
            be determined whether or not Dr. Robb would alter his 
 
            assessment of the case if he had the opportunity to review 
 
            all the diagnostic test results which were available to Dr. 
 
            Madauss.  Since Dr. Madauss was able to obtain a good result 
 
            from the surgery, and Dr. Robb did not obtain a resolution 
 
            of claimant's complaints, the assessment made by Dr. Madauss 
 
            is adopted over that of Dr. Robb when there is a conflict.  
 
            It is noted that Dr. Madauss did not find significant 
 
            conflict in his assessment when comparing it to that of Dr. 
 
            Robb (exhibit 22, pages 21-25).
 
            
 
                 Donald DeBose does not appear to be particularly well 
 
            motivated to resume work.  It is quite understandable since 
 
            what efforts at finding work he has exerted have been 
 
            unsuccessful.  Further, with his lack of academic abilities 
 
            and physical restrictions, his chances of obtaining work are 
 
            quite limited.  Donald was, however, found by the functional 
 
            capacity assessment to be capable of either standing or 
 
            sitting for eight hours per day (exhibit 5).
 
            
 
                 Despite the fact that claimant has some residual 
 
            physical capacity and has not made bona fide efforts to 
 
            resume employment, there is nothing in the record of this 
 
            case to indicate that work consistent with his physical 
 
            capacities is available in the area of his geographical 
 
            residence or that he could successfully compete for jobs 
 
            which are consistent with his capabilities, if any such jobs 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            do in fact exist.
 
            
 
                                conclusions of law
 
            
 
                 Under the provisions of Code section 85.27, the 
 
            employer is responsible for providing reasonable 
 
            transportation expenses incurred in obtaining medical 
 
            treatment.  Rule 343 IAC 8.1(2) provides mileage at the rate 
 
            the state of Iowa pays to its employees.  At the current 
 
            time, that rate is $.21 per mile.  Since claimant traveled a 
 
            total of 1,540 miles, his transportation expense recovery is 
 
            therefore $323.40.
 
            
 
                 The opinion of Dr. Madauss establishes that the May 
 
            1988 work injury is a proximate cause of the claimant's 
 
            current back problems and disability.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 When traditional concepts of disability are applied, it 
 
            appears as though Donald DeBose is permanently and totally 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            disabled.  Total disability in workers' compensation law is 
 
            not to be interpreted as abject helplessness.  Ability to 
 
            earn some wages creates a presumption that the person has 
 
            earning capacity commensurate with those actual earnings, 
 
            but the presumption is rebuttable.  2 Larson Workmen's 
 
            Compensation Law, section 52.21(d).  The test for permanent 
 
            total disability in a workers' compensation proceeding may 
 
            be fairly summarized by defining a totally disabled worker 
 
            as one who, due to injury which arose out of and in the 
 
            course of employment, has been rendered incapable of earning 
 
            a living with which he can support himself.  Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 
            1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 594, 258 
 
            N.W. 899, 902 (1935).
 
            
 
                 Under traditional concepts of evidence and proof which 
 
            would be applied in the courts, the testimony from Thomas 
 
            Magner would be sufficient to make a prima facie showing of 
 
            total disability to invoke the odd-lot doctrine.  The 
 
            agency, however, has held that the only method of making a 
 
            prima facie showing of total disability is through 
 
            conducting a bona fide, good faith search for employment and 
 
            finding none.  Emshoff v. Petroleum Transp. Services, File 
 
            No. 753723 (App. Decn., March 31, 1987).  In this case, the 
 
            distinction makes little difference, however, because it is 
 
            not necessary to rely upon the odd-lot doctrine in order to 
 
            arrive at a determination that Donald DeBose is permanently 
 
            totally disabled.  His activity restrictions as shown by the 
 
            functional capacities assessment and his lack of education 
 
            and academic skills clearly demonstrate that the assessment 
 
            made by Magner is correct.  It is concluded that Donald 
 
            DeBose is permanently and totally disabled within the 
 
            meaning of Code section 85.34(3).  Even if DeBose were to 
 
            have exhibited exemplary motivation, there is no reason to 
 
            believe that his current status of disability and lack of 
 
            bona fide gainful employment would be any different than 
 
            what it is currently.
 
            
 
                 There is nothing in the record of this case which gives 
 
            any basis to expect that the claimant's current state of 
 
            disability is likely to change.  His disability may be 
 
            termed as permanent because it is likely to continue for an 
 
            indefinite and undeterminable period.  Wallace v. 
 
            Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941).
 
            
 
                 It was stipulated by the parties in the prehearing 
 
            report that defendants had paid weekly benefits to the 
 
            claimant at the stipulated rate of $270.90 per week ever 
 
            since the date of injury.  In view of such stipulation, no 
 
            attempt will be made in the order of this decision to 
 
            compute the precise amount which has been paid.  Credit will 
 
            simply be given for payments previously paid.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Donald 
 
            DeBose weekly compensation for permanent total disability at 
 
            the stipulated rate of two hundred seventy and 90/100 
 
            dollars ($270.90) per week.  Such payments are payable 
 
            commencing May 17, 1988, and shall continue for so long as 
 
            DeBose remains totally disabled.
 
            
 
                 IT IS FURTHER ORDERED that defendants are given credit 
 
            for all weekly compensation paid prior to the entry of this 
 
            decision.  Any unpaid, accrued amounts shall be paid to 
 
            claimant in a lump sum together with interest pursuant to 
 
            section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant the 
 
            sum of three hundred twenty-three and 40/100 dollars 
 
            ($323.40) for transportation expenses pursuant to Code 
 
            section 85.27.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael H. Irvine
 
            Ms. Linda H. Robbins
 
            Attorneys at Law
 
            417 First Avenue SE
 
            P.O. Box 2819
 
            Cedar Rapids, Iowa  52406-2819
 
            
 
            Mr. Chris J. Scheldrup
 
            Mr. Richard P. Moore
 
            Attorneys at Law
 
            2720 First Avenue NE
 
            P.O. Box 1943
 
            Cedar Rapids, Iowa  52406-1943
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1804
 
                                               Filed February 19, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD DEBOSE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 889569
 
                                          :
 
            PROCESS MECHANICAL, INC.,     :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD ITT,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1804
 
            Forty-four-year-old claimant with two-level back fusion, 
 
            severe activity restrictions, an eighth grade education, an 
 
            apparent learning disability and who was essentially unable 
 
            to read, write or perform other than extremely rudimentary 
 
            math found to be totally disabled.
 
            
 
 
            
 
            
 
            
 
            
 
              
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARJORIE BALDWIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 889612
 
            WILSON FOODS CORPORATION,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on July 23, 1992, at 
 
            Storm Lake, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on or about June 7, 1988.  The record in the 
 
            proceeding consists of the testimony of the claimant and 
 
            joint exhibits 1 and 3 through 18.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's disability and entitlement 
 
            to disability benefits;
 
            
 
                 2.  Whether claimant's injury is to the hands - 
 
            simultaneous bilateral carpal tunnel injury under 
 
            85.34(2)(s) or just an injury to claimant's right hand; and,
 
            
 
                 3.  Claimant's entitlement to 85.27 medical benefits.  
 
            The issue is an independent medical examination of Pat Luse, 
 
            B.S., D.C., F.A.C.O., R.P., in the amount of $380.  The 
 
            issue within this is authorization, necessity and reasonable 
 
            medical treatment.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 39-year-old high school graduate.  She 
 
            related her work history prior to beginning work for 
 
            defendant in August of 1983.  Her prior history basically 
 
            involves working in the restaurant, warehouse and 
 
            packinghouse industry.  Claimant said she had no 
 
            pre-employment physical nor had she had any prior hand, 
 
            wrist, elbow or shoulder problems.  Claimant described her 
 
            duties while working for defendant.  These duties involved 
 
            working most of the time in a pork cure department in which 
 
            she ran the surmatic machine stuffing meat into the casing, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            grabbing hams weighing up to 60 pounds and hand stuffing 
 
            meat through cones.  She described this as repetitive work.  
 
            Claimant indicated she did this type of work continuously 
 
            until her termination in June of 1989 except for some 
 
            layoffs.
 
            
 
                 Claimant testified that her symptoms developed 
 
            simultaneously and that she first experienced pain in her 
 
            hands, numbness and swelling while making boxes in the 
 
            sausage department in June of 1988.  Claimant said she is 
 
            right handed.
 
            
 
                 Claimant acknowledged that she was paid at 2 percent 
 
            for impairment to her right shoulder earlier but that that 
 
            is not at issue today nor anything involving her right 
 
            shoulder.
 
            
 
                 Claimant indicated she was wearing splints before 
 
            surgery.  Claimant had surgery on her right hand on June 22, 
 
            1988, and was off work for seven and one-half weeks.  
 
            Claimant indicated that W.O. Carlson, M.D., released her to 
 
            work at light duty on July 7, 1988, but Wilson Foods had no 
 
            light duty work so she didn't begin until August.  Claimant 
 
            contends her symptoms after her surgery were numbness in her 
 
            right hand and pain in her left.  When asked regarding her 
 
            August 5, 1988 comment to Dr. Carlson (Jt.. exhibit 10) as 
 
            to the hands improving dramatically since claimant's last 
 
            visit, claimant retorted that was because she wasn't 
 
            working.  
 
            
 
                 Claimant said she thought she was going to have surgery 
 
            on her left hand shortly after her right hand surgery but 
 
            then on August 5, she said the doctor delayed her left hand 
 
            surgery.  Claimant indicated that surgery was set up for her 
 
            left hand before August 1988, and the appointment arranged 
 
            when a person from Wilson Foods, a nurse, cancelled the 
 
            surgery.  Claimant emphasized she felt at the time she 
 
            needed left hand surgery also.
 
            
 
                 Claimant returned to work in August 1988 and described 
 
            her work which was supposed to be in a lighter category but 
 
            she said she was running the surmatic machine again.  
 
            Eventually she was bagging and then making boxes.  She 
 
            indicated this type of work was still repetitive work and 
 
            that she had pain, swelling and cramping again in her hands.
 
            
 
                 Claimant decided in January 1989 that she had had 
 
            enough pain so she quit and took a layoff status on the 800 
 
            gang.  She said on this gang if there is no work to do you 
 
            are considered on layoff and if there was work you would be 
 
            assigned job to job to fill in for others, but with your 
 
            seniority you could pass up a job.
 
            
 
                 When asked why she did not eventually have left hand 
 
            surgery, claimant said that the right hand surgery did not 
 
            work and therefore why do the left now.  Claimant 
 
            acknowledged that her right hand was worse than her left but 
 
            now the condition is basically the same in both hands and 
 
            the pain increases if she does more activities.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant contends her symptoms haven't changed since 
 
            leaving Wilson Foods.  She said her condition gets better if 
 
            she doesn't do anything as she takes a lot of medicine such 
 
            as aspirin or ibuprofen, four to six per day.  She indicated 
 
            she is using no prescription drugs.  Claimant agreed that 
 
            after she had her right hand surgery, she was released to 
 
            work and had no restrictions.  She also agreed that in 
 
            January of 1989, she voluntarily switched to the 800 gang 
 
            and took layoff status.  She indicated she was to report 
 
            every Monday and could take a job or not based on her 
 
            seniority and usually she did not need to take work so she 
 
            could pick and choose work.  Claimant said she worked 
 
            part-time at a bar in Cherokee for approximately three years 
 
            from the spring of 1989 to April 1992 when she left that 
 
            job.  She indicated she is going back to school the end of 
 
            August.
 
            
 
                 Claimant also testified that regardless of any doctor 
 
            report referring to her elbow, she has not had any elbow 
 
            problems.  She acknowledged that she went to Dr. Luse for a 
 
            rating in this particular case and that defendant refused to 
 
            pay the bill.
 
            
 
                 Claimant seemed to agree that her examination with A. 
 
            J. Wolbrink, M.D., was an independent medical examination at 
 
            the request of her attorney and was not authorized by Wilson 
 
            Foods nor was it arranged by Wilson's nurse but that 
 
            defendant did pay that bill.
 
            
 
                 Claimant was asked again on cross-examination her 
 
            reason for not having left carpal tunnel and she emphasized 
 
            that the right surgery didn't work so therefore didn't seek 
 
            surgery for her left hand.  She appeared to be basically 
 
            giving up in that regard.  Claimant did indicate that she 
 
            wasn't denying further left hand medical treatment.
 
            
 
                 Claimant has been a widow since 1978 and testified as 
 
            to the widow benefits she was receiving which was affected 
 
            by how much she earns.  She indicated if she makes $2, they 
 
            will take $1 off depending on how much she makes.  She said 
 
            her social security currently is $574 regarding her son only 
 
            and nothing for herself and she is not presently working.  
 
            She said that when she got her widow benefits in the amount 
 
            of $574 per month plus her son's $574, she was getting this 
 
            beginning in 1978.  She acknowledged that working at 
 
            Wilson's did reduce her social security to less than half.
 
            
 
                 Claimant said she officially resigned from Wilson's in 
 
            June of 1989 and that her social security benefits did not 
 
            increase until after she definitely quit in June 1989.  When 
 
            her son became 16 (May 30, 1992), then her own benefits were 
 
            affected.
 
            
 
                 Claimant acknowledged that she was paid 2 percent 
 
            permanent partial disability benefits for her right hand and 
 
            that Dr Carlson eventually opined a 4 percent impairment.  
 
            She has never been paid the additional 2 percent.
 
            
 
                 The company nurse's notes reflect on joint exhibit 1, 
 
            page 2, that on June 8, 1988, claimant's right hand was 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            swelling and she was off work June 7.  On June 10, her notes 
 
            reflect that claimant was complaining that both hands have 
 
            been bothering her a long time, particularly since doing 
 
            boning.  The note indicates she saw Dr. Carlson on June 9.
 
            
 
                 When Dr. Carlson examined claimant on June 9, he 
 
            referred to claimant's right hand and shoulder.  Keep in 
 
            mind that these notes through these medical records may 
 
            refer to claimant's right shoulder but that is not an issue 
 
            or involved in this case so the undersigned will no longer 
 
            refer to the shoulder if it is reflected in the notes, 
 
            unless necessary.  On June 14, the doctor scheduled a carpal 
 
            tunnel release to be done on June 21, 1988.  Joint exhibits 
 
            5 and 6 reflect the right carpal tunnel release done on June 
 
            21, 1988.  He then was going to fit her with bilateral cock-
 
            up wrist splints and that she was to wear them day and night 
 
            to see how she does.  Joint exhibit 9 reflects Dr. Carlson's 
 
            note on June 9, 1988, in which he mentioned claimant has 
 
            symptoms somewhat like carpal tunnel bilaterally.
 
            
 
                 Joint exhibit 9, page 2, reflects that on July 7, 1988, 
 
            when claimant had her sutures removed following her right 
 
            carpal tunnel release, it was mentioned to her that she 
 
            could have her left scheduled whenever she feels she needs 
 
            to have it done.  On that same date, as reflected in joint 
 
            exhibit A, claimant was given a return-to-work for July 21, 
 
            1988, with no restrictions.
 
            
 
                 Per an examination of claimant on August 5, 1988, Dr. 
 
            Carlson indicated claimant's hands have dramatically 
 
            improved since her last visit and he did not feel there 
 
            should be surgical intervention for carpal tunnel syndrome.  
 
            It is obvious from this letter he was now referring to a 
 
            left hand even though he did not specifically refer to the 
 
            left.  He didn't think claimant would need to come in for 
 
            surgery for awhile.  It is obvious he wanted to wait to see 
 
            how things developed (Jt. Ex. 10).  On January 3, 1989, Dr. 
 
            Carlson gave claimant a 4 percent permanent partial physical 
 
            impairment rating of her upper extremity (Jt. Ex. 13).  It 
 
            is obvious he is referring to her hand.  Joint exhibits 11 
 
            and 12 indicate a rating of 2 percent of the whole man 
 
            impairment on December 22, 1988, and then on December 29, 
 
            1988, a 2 percent of the right hand involvement (Jt. Exs. 11 
 
            and 12).  It is obvious and is reflected on joint exhibit 13 
 
            that the January 30, 1989 is a corrected impairment rating 
 
            and that the prior two ratings were basically intended by 
 
            the doctor to be a whole man impairment which was not a 
 
            proper rating procedure on a scheduled member under the 
 
            facts and circumstances of this case.  It is clear to the 
 
            undersigned taking these three exhibits as a whole that the 
 
            doctor had been consistent in his 4 percent rating and that 
 
            that is to the claimant's right hand which is part of her 
 
            upper extremity.
 
            
 
                 A.J. Wolbrink, M.D., examined claimant for an 
 
            evaluation for permanent impairment rating for right 
 
            shoulder and right hand on April 20, 1989, having been 
 
            referred to him by claimant's attorney.  The doctor opined 
 
            various impairment ratings involving her shoulder and upper 
 
            extremity and then additionally opined that claimant had a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            permanent impairment of 6 percent of the upper extremity due 
 
            to the residual weakness from her tendinitis and carpal 
 
            tunnel surgery.  Claimant's chosen doctor mentioned nothing 
 
            about the left.  On cross-examination, she could not 
 
            remember if she had mentioned the left or not but also 
 
            indicated that even though the doctor mentioned her elbow, 
 
            she emphasized she did not have elbow problems.
 
            
 
                 Dr. Pat Luse of the Nebraska Chiropractic and Nutrition 
 
            Clinic, Sioux Falls, Nebraska, issued a report reflected by 
 
            joint exhibit 14 in which he, pursuant to being referred to 
 
            by claimant's attorney, examined claimant for the purpose of 
 
            an evaluation.  The undersigned does not notice the date 
 
            when the examination took place but the report is dated 
 
            February 11, 1992, so it will be presumed that this took 
 
            place on or around that date.  In this report, the doctor 
 
            opined that claimant had a right mild medium nerve 
 
            entrapment neuropathy of 10 percent of the upper extremity 
 
            and a left mild medium nerve entrapment neuropathy of 10 
 
            percent of the upper extremity minus 5 percent for non-
 
            preferred side which equals 5 percent.  In summary, he 
 
            issued a total impairment of 15 percent to the upper 
 
            extremity.  The undersigned is not clear where the doctor 
 
            comes up with a summary of 15 percent to the upper extremity 
 
            by combining the right and left.  It does not seem clear how 
 
            you would combine the two and come up with one upper 
 
            extremity.
 
            
 
                 The first question to be resolved is whether claimant's 
 
            injury is to the right hand only or a simultaneous bilateral 
 
            carpal tunnel.  The record does indicate that around June 
 
            1988, claimant was complaining that both hands hurt but as 
 
            things progressed, the greater weight of medical evidence, 
 
            particularly considering the medical doctor's reports, show 
 
            that the attention was basically directed then to claimant's 
 
            right hand only and in many instances her shoulder, the 
 
            later which is not an issue herein and has been previously 
 
            resolved.  Dr. Carlson, who did the surgery on the right 
 
            hand, opined only a 4 percent permanent impairment to 
 
            claimant's right hand.  He did not issue an impairment to 
 
            the left hand even though at one time he thought there may 
 
            be or should be some surgery set up for the left.  He never 
 
            scheduled it as he indicated claimant was having good 
 
            recovery from her right hand surgery and her left hand 
 
            appeared to no longer be having any problems at least as to 
 
            what he noticed.  Dr. Wolbrink, in 1989, opined a 6 percent 
 
            of the upper extremity due to residual weakness from her 
 
            tendinitis and carpal tunnel surgery but it is obvious from 
 
            his report that he was including a tendinitis in the elbow 
 
            and claimant specifically indicated she was not having 
 
            problems with her elbow.  It appears that claimant may have 
 
            some type of residual weakness that may be affecting her 
 
            upper extremity due to her shoulder injury and that might be 
 
            a confusing overall situation as a doctor did at the same 
 
            time issue an impairment rating as to claimant's shoulder.
 
            
 
                 We then had Dr. Luse, to whom claimant was sent by her 
 
            attorney to make an evaluation.  Dr. Luse is a chiropractor.  
 
            He opined an impairment of 10 percent to claimant's right 
 
            upper extremity and a net 5 percent to her left after seeing 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            her in February of 1992.  The undersigned believes the best 
 
            one to determine an impairment would be in the facts of this 
 
            case the medical doctor who actually performed the surgery 
 
            on the right and treated claimant.  It would seem that the 
 
            two medical doctors are close in their impairment.  None of 
 
            them found any impairment to claimant's left hand.  If a 
 
            person found a simultaneous bilateral carpal tunnel injury 
 
            and then used under 84.34(2)(s) procedure the combined 
 
            charts and determined that claimant therefore had a 2 
 
            percent permanent body as a whole impairment, claimant would 
 
            be awarded on that basis 10 weeks as we would have an 
 
            ultimate 2 percent on the right and a 0 percent on the left 
 
            which would be on the combined chart 2 percent times 500 
 
            weeks.  If we concluded that claimant had a 4 percent 
 
            permanent impairment of the hand, 4 percent times 190 would 
 
            equal 7.6 weeks.  We therefore have in either direction a 
 
            small difference between the two.  The undersigned believes 
 
            the greater weight of evidence indicates that claimant did 
 
            not have a simultaneous bilateral carpal tunnel injury and 
 
            that she does not have any permanent impairment to her left 
 
            hand but does in fact have a 4 percent permanent partial 
 
            impairment of her right hand and the undersigned so finds.
 
            
 
                 As to the 85.27 issue and the independent medical 
 
            examination of Dr. Luse, who submitted a bill for $380, 
 
            defendant contends that it was not authorized nor necessary 
 
            and reasonable medical treatment.  It appears undisputed 
 
            that the claimant was sent to Dr. Luse for an independent 
 
            medical examination but did not seek the same under 85.39.  
 
            In fact, claimant already had an independent medical 
 
            examination that was voluntarily paid for by the defendant 
 
            when she went to Dr. Wolbrink.  It is apparent that claimant 
 
            was not satisfied with Dr. Wolbrink but the claimant is not 
 
            entitled to have as many independent medical exams at the 
 
            expense of the defendant as she wants.  Of course, claimant 
 
            can go and have on her own as many as she wants.  The 
 
            undersigned finds that claimant is responsible for Dr. 
 
            Luse's $380 bill and the defendant is not responsible for 
 
            payment or reimbursement of that amount to the claimant.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                  CONCLUSIONS OF LAW
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
                 Iowa Code section 85.34(2)(2) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 Iowa Code section 85.39 provides, in part:
 
            
 
                 
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did not incur a simultaneous bilateral carpal 
 
            tunnel injury on June 7, 1988, but that claimant incurred a 
 
            work-related right carpal tunnel cumulative injury on June 
 
            7, 1988, which injury caused claimant to have surgery on her 
 
            right hand and caused claimant to incur a 4 percent 
 
            permanent partial impairment of her right hand.
 
            
 
                 Claimant did not have authority to have Dr. Luse, a 
 
            chiropractor, perform medical impairment evaluation for 
 
            which defendants should be responsible.  Therefore, 
 
            defendant is not responsible for paying Dr. Luse's $380 
 
            bill.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to seven point six (7.6) 
 
            weeks of permanent partial disability benefits at the weekly 
 
            rate of two hundred thirty-seven and 23/100 dollars 
 
            ($237.23), beginning August 17, 1988.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendant has previously 
 
            paid three point eight (3.8) weeks of benefits.
 
            
 
                 Claimant shall pay his own chiropractic bill with Dr. 
 
            Luse in the amount of three hundred eighty dollars ($380) 
 
            and defendant is not responsible for payment or 
 
            reimbursement to the claimant of said amount.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            632-640 Badgerow Bldg
 
            P O Box 1194
 
            Sioux City IA 51102
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine St
 
            P O Box 535
 
            Cherokee IA 51012-0535
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 1804; 5-2503
 
                                               Filed August 12, 1992
 
                                               Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARJORIE BALDWIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 889612
 
            WILSON FOODS CORPORATION,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1803; 1802
 
            Found claimant did not have a simultaneous bilateral carpal 
 
            tunnel injury under 85.34(2)(s) which would have given 
 
            claimant ten weeks of benefits.  Deputy instead found 
 
            claimant had a right hand carpal tunnel injury which 
 
            resulted in claimant receiving 7.6 weeks of benefits.
 
            
 
            5-2502
 
            Found defendant not responsible for the $380 chiropractor 
 
            bill as it was not authorized and was for an evaluation 
 
            only.  Defendant already had voluntarily paid for one 
 
            evaluation for a claimant-chosen doctor.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DELORES BENOIT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 889639
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            COLLIS, INC.,                 :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the May 8, 
 
            1989 petition for Iowa workers' compensation benefits filed 
 
            by claimant Delores Benoit against her employer, Collis, 
 
            Inc., and its insurance carrier, American Motorists 
 
            Insurance.  Claimant alleges a work-related injury to her 
 
            left shoulder resulting in surgery.
 
            
 
                 This cause came on for hearing in Davenport, Iowa, on 
 
            October 9, 1990.  Claimant and Robert Dietrick testified 
 
            personally.  Defendants' exhibits A through BB were admitted 
 
            into evidence, as were claimant's exhibits 1 and 3 through 
 
            11.  Claimant's exhibit 2 was offered, but excluded upon 
 
            objection.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between Delores Benoit and Collis, 
 
            Inc., at all times relevant and that certain voluntary 
 
            benefits were paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment with Collis, Inc.;
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            that injury and any subsequent temporary or permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of claimant's disability, if 
 
            any; and,
 
            
 
                 4.  The appropriate rate of compensation, if weekly 
 
            benefits be allowed.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Delores Benoit, age 46, has worked for defendant 
 
            Collis, Inc., since 1974.  Collis is a manufacturer of wire 
 
            refrigerator shelves.
 
            
 
                 Claimant has some preexisting history of left shoulder 
 
            pain, but no evidence of permanent impairment.  She 
 
            developed increasing pain in the left shoulder causing her 
 
            to seek medical attention on February 11, 1988.  She first 
 
            missed work on a physician's advice on May 12, 1988.  
 
            Claimant alleges that she later suffered a sharp, tearing 
 
            pain in the left shoulder while moving 20-30 pound ladders 
 
            overhead on or about April 13, 1988.
 
            
 
                 Claimant eventually was diagnosed as having sustained a 
 
            rotator cuff tear and underwent surgery which resulted in 
 
            permanent impairment and substantial industrial disability.
 
            
 
                 The record contains no expert opinion as to whether a 
 
            causal relationship exists between claimant's work and the 
 
            tear in her rotator cuff.
 
            
 
                                conclusions of law
 
            
 
                 It is claimant's burden to establish by a preponderance 
 
            of the evidence that she sustained an injury arising out of 
 
            and in the course of her employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976).  The words "arising 
 
            out of" refer to the course or source of the injury.  
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 
 
            1971).  This requirement is satisfied by showing a causal 
 
            relationship between the employment and the injury.  Sheerin 
 
            v. Holin Co., 380 N.W.2d 415 (Iowa 1986).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            11, 1988 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Proposed claimant's exhibit 2 is the October 4, 1990 
 
            letter of Xeres R. Colah, M.D., claimant's treating surgeon.  
 
            In that letter, Dr. Colah expresses an opinion as to whether 
 
            claimant's rotator cuff tear was caused by repetitive 
 
            activity during the course of her work.  This letter was 
 
            excluded from evidence upon objection and is the only 
 
            evidence offered as to causation.  This writer inadvertently 
 
            read the proposed exhibit before realizing that it had been 
 
            excluded from evidence.  The result of this decision would 
 
            be substantially different if that exhibit were part of the 
 
            record.
 
            
 
                 Although Dr. Colah's chart notes frequently refer to 
 
            claimant as "(Industrial)," this reference is subject to 
 
            multiple interpretations and does not, standing by itself, 
 
            constitute a reliable expert opinion as to the crucial issue 
 
            of causation.  Particularly in cases of alleged repetitive 
 
            motion trauma, medical opinion is essential in determining 
 
            whether the injury is connected to the employment.  On this 
 
            record, it cannot be said that claimant has met her burden 
 
            of proof on the issue.
 
            
 
                 Other issues are accordingly rendered moot.
 
            
 
                           
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert J. McGee
 
            Attorney at Law
 
            230 Fourth Avenue South
 
            Clinton, Iowa  52732
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.50
 
                           Filed April 12, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DELORES BENOIT,     :
 
                      :
 
                 Claimant, :
 
                      :         File No. 889639
 
            vs.       :
 
                      :      A R B I T R A T I O N
 
            COLLIS, INC.,  :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            AMERICAN MOTORISTS INSURANCE, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.50
 
            Claimant suffered torn rotator cuff resulting in surgery and 
 
            industrial disability.  The only expert opinion as to 
 
            causation was excluded upon objection.  Claimant failed to 
 
            meet her burden of proof.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
         
 
            LEA LAWRENCE,    
 
                        
 
                 Claimant,                         File No. 889697
 
                        
 
            vs.                                      A P P E A L
 
                        
 
            SECOND INJURY FUND OF IOWA,             D E C I S I O N
 
                        
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            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
 
            
 
            The issues on appeal are:  The extent of claimant's 
 
            cumulative industrial disability for purposes of determining 
 
            Second Injury Fund liability; when Second Injury Fund 
 
            benefits commence; and when interest on Second Injury Fund 
 
            benefits begins to accrue.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed July 31, 1992 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 in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 Claimant, Lea Lawrence, was born on December 26, 1946.  
 
            At the time of the hearing, claimant was 45 years of age.
 
            
 
                 In 1978, claimant began working for the defendant, EMCO 
 
            Industries, Inc., a company which manufactures storm doors 
 
            and windows.
 
            
 
                 In 1983, claimant began working on the storm door 
 
            production line.  Her job duties required her to fold and 
 
            staple cardboard boxes with her right hand.  In 1985, 
 
            production levels were increased and employees at the plant 
 
            were required to work faster.  Claimant began to experience 
 
            pain and swelling in her wrist and thumb on her right hand.  
 
            She eventually came under the care of Douglas S. Reagan, 
 
            M.D., an orthopedic specialist.  In August of 1986 and in 
 
            August of 1987, claimant underwent surgeries to her wrist 
 
            and thumb on the right hand.  Residual problems of 
 
            limitation of range of motion resulted in an 18 percent 
 
            permanent impairment rating to the right hand (Joint Exhibit 
 
            2, pages 1-8; pages 10-12).
 
            
 
                 Claimant testified that in June of 1987, she began to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            experience physical problems with her left hand.  During 
 
            this time, she was continuing on the production line and her 
 
            job duties included inserting plastic runners on storm 
 
            doors.  Due to the problems with her right hand, this was 
 
            considered light duty work and she was to use only her left 
 
            hand in performing the duties.  Dr. Reagan diagnosed 
 
            claimant's problem as CMC degenerative arthritis of the left 
 
            thumb (Jt. Ex. 1, p. 6).  Claimant began wearing a splint on 
 
            her left hand and in June of 1988 underwent a carpo 
 
            metacarpal arthroplasty for the left thumb (Jt. Ex. 1, pp. 
 
            16-18).  She began physical therapy for one month to 
 
            increase the range of motion of her left wrist and thumb 
 
            (Jt. Ex. 1, pp. 22, 25).  She was released to return to 
 
            light duty work with a five pound lifting restriction and no 
 
            repetitive work for either hand (Jt. Ex. 1, p. 24).  Dr. 
 
            Reagan's notes indicate that once claimant began to increase 
 
            her activities, she began to have increased pain and 
 
            stiffness in the thumb.  Eventually, she was given a 
 
            permanent restriction of light duty work with no repetitive 
 
            work activities and no lifting of more than five pounds (Jt. 
 
            Ex. 1, p. 28).  He assigned ***** [19] percent impairment to 
 
            the left upper extremity ***** [(Jt. Ex. 1, p. 37).  Dr. 
 
            Reagan clarified that the 19 percent impairment was to the 
 
            upper extremity.  (Jt. Ex. 2, p. 42)]
 
            
 
                 In June of 1989, claimant experienced pain in her left 
 
            elbow which was treated by both the company physician and 
 
            Dr. Reagan (Jt. Ex. 1, pp. 27, 97).  Eventually, treatment 
 
            consisted of braces for the elbow with cortisone injections.  
 
            She was diagnosed as having a pinched nerve and underwent a 
 
            cubical tunnel release to the left elbow in December of 1989 
 
            (Jt. Ex. 1, p. 32).  She underwent physical therapy, and Dr. 
 
            Reagan assigned an additional four percent of the upper 
 
            extremity due to the condition of her elbow (Jt. Ex. 1, p. 
 
            36).  She was released to return to work on February 12, 
 
            1990 (Jt. Ex. 1, p. 34).
 
            
 
                 Ronald Bergman, M.D., a physician apparently retained 
 
            by the defendants for a second opinion regarding impairment, 
 
            assessed claimant on September 5, 1989:
 
            
 
                    Ms. Lea Short was seen in my office on 8/29/89 
 
                 for a permanent partial disability rating.  As you 
 
                 may know, she is a status post excision of the 
 
                 trapezium with a palmaris longus arthroplasty 
 
                 bilaterally.  The right one was performed in 8/87, 
 
                 and the left one was performed on 8/12/88.  I 
 
                 believe that optimal medical healing has taken 
 
                 place at this time.  I have given her the 
 
                 following rating:
 
            
 
                      6% impairment of the right upper 
 
                      extremity due to decreased active range 
 
                      of motion and of strength
 
            
 
                      28% impairment of the left upper 
 
                      extremity due to decreased active range 
 
                      of motion and of strength
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            (Jt. Ex. 1, p. 73)
 
            
 
                 In November of 1989, claimant developed pain in her 
 
            left shoulder radiating into the back and scapular area.  
 
            Initially seen by Kevin Smith, M.D., she was diagnosed as 
 
            having biceps tendinitis on the left side.  He recommended 
 
            conservative treatment and adhered to the restrictions 
 
            placed upon her by Dr. Reagan for the prior problems (Jt. 
 
            Ex. 1, pp. 76-84).  He ordered an EMG study of the upper 
 
            extremity and an MRI of the left shoulder, the results of 
 
            which were both normal (Jt. Ex. 1, pp. 85, 166-173).  In 
 
            November of 1990, claimant underwent surgery for 
 
            manipulation of the shoulder and injection of the 
 
            subacromial bursa, performed by Dr. Reagan (Jt. Ex. 1, p. 
 
            194).
 
            
 
                 Claimant has not sought medical treatment for any of 
 
            her physical problems since November of 1990.
 
            
 
                 Currently, claimant works at the B & J Diet and Energy 
 
            Center selling vitamins.  She and the owner of the store are 
 
            the only employees, and claimant works approximately 25 
 
            hours per week.  She is paid $7.50 per hour and receives no 
 
            other benefits.
 
            
 
                 While working for EMCO, claimant received regular 
 
            hourly increases, and was offered vacation and sick leave as 
 
            well as health care benefits, a pension program and 
 
            disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The first issue to be resolved is claimant's cumulative 
 
            industrial disability for purposes of determining Second 
 
            Injury Fund liability.
 
            
 
                 Iowa Code section 85.64 governs Second Injury Fund 
 
            liability.  Before liability of the Fund is triggered, two 
 
            requirements must be met.  First, the employee must have 
 
            previously experienced a permanent loss or loss of use of a 
 
            hand, arm, foot, leg or eye.  Second, the employee must 
 
            sustain a loss or loss of use of another such specified 
 
            member or organ through a compensable injury.
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice,  17-1.
 
            
 
                 The Fund is responsible for all industrial disability 
 
            caused by the most recent injury, less the disability for 
 
            which the employer is responsible, and also less the 
 
            compensable value of the preexisting disability.  Iowa Code 
 
            section 85.64.  Second Injury Fund of Iowa v. Braden, 459 
 
            N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 
 
            N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1970).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
            Claimant was 45 years old at the time of the hearing.  She 
 
            has impairments of 18 percent of the right hand; 19 percent 
 
            of the left upper extremity; and an additional four percent 
 
            of the left upper extremity.  (The impairments of the left 
 
            clearly do not extend beyond the arm and will hereafter be 
 
            referred to as impairments of the left arm).  Claimant is 
 
            limited to lifting not more than five pounds.  She is unable 
 
            to do any type of repetitive work.  Routine, everyday tasks 
 
            cause claimant problems.
 
            
 
            At the time of the injury, claimant was one semester shy of 
 
            obtaining her high school diploma.  She has training and 
 
            experience as a beautician, but testified she was unwilling 
 
            to undertake this occupation because she felt she would have 
 
            to work too hard to make a living, and because of the 
 
            conditions of her arms.
 
            
 
            Claimant has special training in the nurse's aide field, but 
 
            worked only a short time in the field due to the low pay 
 
            ($2.90 per hour) and her acquisition of a job at EMCO in 
 
            1978.
 
            
 
            Claimant began her employment with EMCO earning $4.43 per 
 
            hour.  When she left her job with EMCO in November of 1991, 
 
            claimant was earning $8.70 per hour.  Currently, she earns 
 
            $7.50 per hour.  She has sustained an actual loss of 
 
            earnings of 14 percent, and her hours have dropped by 
 
            approximately 38 percent.
 
            
 
            When all relevant factors are considered it is found that 
 
            claimant has sustained a cumulative industrial disability of 
 
            50 percent.  The Fund is entitled to credit for the prior 
 
            loss and the subsequent losses.  Here all the losses are 
 
            work related.  The prior loss was 18 percent of the right 
 
            hand and the subsequent losses were 19 and 4 percent or a 
 
            total of 23 percent of the left arm.  The Second Injury 
 
            Fund's liability is 158.3 weeks.  [50 percent times 500 
 
            weeks minus (18 percent times 190 weeks plus 23 percent 
 
            times 250 weeks) i.e., 250 - (34.2 + 57.5) or 158.3 weeks.  
 
            The Second Injury Fund thus gets full credit for all losses 
 
            in calculating its liability.
 
            
 
            The second issue to be resolved is when the Second Injury 
 
            Funds commence.  Iowa Code section 85.64 provides in 
 
            relevant part:
 
               
 
               If an employee who has previously lost, or lost the use 
 
            of, one hand, one arm, one foot, one leg, or one eye, 
 
            becomes permanently disabled by a compensable injury which 
 
            has resulted in the loss of or loss of use of another such 
 
            member or organ, the employer shall be liable only for the 
 
            degree of disability which would have resulted from the 
 
            latter injury if there had been no pre-existing disability.  
 
            In addition to such compensation, and after the expiration 
 
            of the full period provided by law for the payments thereof 
 
            by the employer, the employee shall be paid out of the 
 
            "Second Injury Fund" created by this division the remainder 
 
            of such compensation as would be payable for the degree of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            permanent disability involved after first deducting from 
 
            such remainder the compensable value of the previously lost 
 
            member or organ.  (Emphasis added.)
 
            
 
            Second Injury Fund benefits should commence after the 
 
            expiration of the full period provided by law for the 
 
            payments by the employer.  The employer's liability for 
 
            permanent partial disability benefits for the second loss 
 
            began February 12, 1990 at the end of claimant's healing 
 
            period.  In this case the employer's liability for permanent 
 
            partial disability benefits from the first loss (34.2 weeks) 
 
            had fully expired prior to commencement of the employer's 
 
            liability for permanent partial disability for the second 
 
            loss.  Iowa Code section 85.64 is read to mean that Second 
 
            Injury Fund benefits begin after the expiration of the 
 
            period of the employer's liability resulting from the second 
 
            loss.  The employer's liability from the second loss (in 
 
            this case two losses to the left arm) totals 57.5 weeks of 
 
            permanent partial disability benefits.  Second Injury Fund 
 
            benefits begin 57.5 weeks after February 12, 1990 (March 21, 
 
            1991).  Shank v. Mercy Hospital Medical Center, File No. 
 
            719627 (Appeal Decision, September 27, 1991) is overruled to 
 
            the extent that it is inconsistent with this decision.
 
            
 
                 The last issue to be resolved is when Second Injury 
 
            Fund benefits begin to accrue interest.  Interest accrues on 
 
            benefits the Fund pays commencing on the date of the 
 
            decision.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
            467 (Iowa 1990).  Interest shall accrue on unpaid benefits 
 
            from the date of this decision.
 
            
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                        ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendant Second Injury Fund shall pay claimant one 
 
            hundred fifty-eight point three (158.3) weeks of benefits at 
 
            the rate of two hundred one and 00/100 dollars ($201.00) per 
 
            week beginning March 21, 1991.
 
            
 
            That defendant Second Injury Fund shall pay accrued weekly 
 
            benefits in a lump sum.
 
            
 
            That Second Injury Fund benefits shall accrue interest from 
 
            the date of this decision.
 
            
 
            That defendant Second Injury Fund shall pay the costs of 
 
            this matter including the transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Arthur C. Hedberg, Jr.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines, Iowa 50309
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                       5-3200; 5-3202; 3203; 5-3800
 
                                       Filed August 31, 1993
 
                                       Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LEA LAWRENCE,    
 
                        
 
                 Claimant,                         File No. 889697
 
                        
 
            vs.                                      A P P E A L
 
                        
 
            SECOND INJURY FUND OF IOWA,             D E C I S I O N
 
                        
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            5-3202
 
            Claimant sustained two separate overuse injuries to both 
 
            thumbs and eventually underwent surgery to correct unstable 
 
            CMC joints.
 
            
 
            Claimant had been a factory worker most of her life.  
 
            Restrictions include activity restrictions of no lifting 
 
            greater than five pounds and no heavy repetitive work.  
 
            Claimant's impairments were 18 percent of the right hand and 
 
            19 percent and four percent of the left arm.  Claimant's 
 
            cumulative industrial disability was 50 percent.  Claimant 
 
            was entitled to 158.3 weeks of Second Injury Fund benefits.
 
            
 
            3203
 
            Second Injury Fund benefits commence after the period of 
 
            time of the employer's liability.  The employer's liability 
 
            for permanent partial disability benefits ended with the 
 
            employer's liability for the second loss.  Fund benefits 
 
            commence at the end of the employer's liability.  The 
 
            waiting or suspension period did not include the number of 
 
            weeks of disability from the prior loss.  This case 
 
            overrules Shank v. Mercy Hospital Medical Center, File no. 
 
            719627 (Appeal decision, September 27, 1991) to the extent 
 
            Shank is inconsistent with the instant decision.
 
            
 
            5-3200; 5-3800
 
            Second Injury Fund benefits begin to accrue interest on the 
 
            date of the agency decision.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEA LAWRENCE,                 :
 
                                          :        File No. 889697
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :         D E C I S I O N
 
                                          :
 
                 Defendant,               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Lea 
 
            Lawrence, claimant, against the Second Injury Fund, as the 
 
            sole defendant.  Claimant has alleged a first injury date of 
 
            January 31, 1985 to the right upper extremity, and a second 
 
            injury date of June 15, 1988 to the left upper extremity.  
 
            File No. 974045, originally consolidated with this case, was 
 
            settled.  This matter came on for hearing on June 4, 1992, 
 
            at Des Moines, Iowa.
 
            
 
                 The record in this case consists of the testimony of 
 
            the claimant and John Feather, the director of human 
 
            resources and personnel; and, joint exhibits 1 and 2.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on June 15, 
 
            1988, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between 
 
            claimant's injury and a permanent disability; and,
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            disability benefits from the Second Injury Fund of Iowa.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Lea Lawrence, was born on December 26, 1946.  
 
            At the time of the hearing, claimant was 45 years of age.
 
            
 
                 In 1978, claimant began working for the defendant, EMCO 
 
            Industries, Inc., a company which manufactures storm doors 
 
            and windows.
 
            
 
                 In 1983, claimant began working on the storm door 
 
            production line.  Her job duties required her to fold and 
 
            staple cardboard boxes with her right hand.  In 1985, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            production levels were increased and employees at the plant 
 
            were required to work faster.  Claimant began to experience 
 
            pain and swelling in her wrist and thumb on her right hand.  
 
            She eventually came under the care of Douglas S. Reagan, 
 
            M.D., an orthopedic specialist.  In August of 1986 and in 
 
            August of 1987, claimant underwent surgeries to her wrist 
 
            and thumb on the right hand.  Residual problems of 
 
            limitation of range of motion resulted in an 18 percent 
 
            permanent impairment rating to the right hand (Joint Exhibit 
 
            2, pages 1-8; pages 10-12).
 
            
 
                 Claimant testified that in June of 1987, she began to 
 
            experience physical problems with her left hand.  During 
 
            this time, she was continuing on the production line and her 
 
            job duties included inserting plastic runners on storm 
 
            doors.  Due to the problems with her right hand, this was 
 
            considered light duty work and she was to use only her left 
 
            hand in performing the duties.  Dr. Reagan diagnosed 
 
            claimant's problem as CMC degenerative arthritis of the left 
 
            thumb (Jt. Ex. 1, p. 6).  Claimant began wearing a splint on 
 
            her left hand and in June of 1988 underwent a carpo 
 
            metacarpal arthroplasty for the left thumb (Jt. Ex. 1, pp. 
 
            16-18).  She began physical therapy for one month to 
 
            increase the range of motion of her left wrist and thumb 
 
            (Jt. Ex. 1, pp. 22, 25).  She was released to return to 
 
            light duty work with a 5 pound lifting restriction and no 
 
            repetitive work for either hand (Jt. Ex. 1, p. 24).  Dr. 
 
            Reagan's notes indicate that once claimant began to increase 
 
            her activities, she began to have increased pain and 
 
            stiffness in the thumb.  Eventually, she was given a 
 
            permanent restriction of light duty work with no repetitive 
 
            work activities and no lifting of more than 5 pounds (Jt. 
 
            Ex. 1, p. 28).  He assigned 18 percent impairment to the 
 
            left upper extremity (Jt. Ex. 2).
 
            
 
                 In June of 1989, claimant experienced pain in her left 
 
            elbow which was treated by both the company physician and 
 
            Dr. Reagan (Jt. Ex. 1, pp. 27, 97).  Eventually, treatment 
 
            consisted of braces for the elbow with cortisone injections.  
 
            She was diagnosed as having a pinched nerve and underwent a 
 
            cubital tunnel release to the left elbow in December of 1989 
 
            (Jt. Ex. 1, p. 32).  She underwent physical therapy, and Dr. 
 
            Reagan assigned an additional 4 percent of the upper 
 
            extremity due to the condition of her elbow (Jt. Ex. 1, p. 
 
            36).  She was released to return to work on February 12, 
 
            1990 (Jt. Ex. 1, p. 34).
 
            
 
                 Ronald Bergman, M.D., a physician apparently retained 
 
            by the defendants for a second opinion regarding impairment, 
 
            assessed claimant on September 5, 1989:
 
            
 
                    Ms. Lea Short was seen in my office on 8/29/89 
 
                 for a permanent partial disability rating.  As you 
 
                 may know, she is a status post excision of the 
 
                 trapezium with a palmaris longus arthroplasty 
 
                 bilaterally.  The right one was performed in 8/87, 
 
                 and the left one was performed on 8/12/88.  I 
 
                 believe that optimal medical healing has taken 
 
                 place at this time.  I have given her the 
 
                 following rating:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                      6% impairment of the right upper 
 
                      extremity due to decreased active range 
 
                      of motion and of strength
 
            
 
                      28% impairment of the left upper 
 
                      extremity due to decreased active range 
 
                      of motion and of strength
 
            
 
            (Jt. Ex. 1, p. 73)
 
            
 
                 In November of 1989, claimant developed pain in her 
 
            left shoulder radiating into the back and scapular area.  
 
            Initially seen by Kevin Smith, M.D., she was diagnosed as 
 
            having biceps tendinitis on the left side.  He recommended 
 
            conservative treatment and adhered to the restrictions 
 
            placed upon her by Dr. Reagan for the prior problems (Jt. 
 
            Ex. 1, pp. 76-84).  He ordered an EMG study of the upper 
 
            extremity and an MRI of the left shoulder, the results of 
 
            which were both normal (Jt. Ex. 1, pp. 85, 166-173).  In 
 
            November of 1990, claimant underwent surgery for 
 
            manipulation of the shoulder and injection of the 
 
            subacromial bursa, performed by Dr. Reagan (Jt. Ex. 1, p. 
 
            194).
 
            
 
                 Claimant has not sought medical treatment for any of 
 
            her physical problems since November of 1990.
 
            
 
                 Currently, claimant works at the B & J Diet and Energy 
 
            Center selling vitamins.  She and the owner of the store are 
 
            the only employees, and claimant works approximately 25 
 
            hours per week.  She is paid $7.50 per hour and receives no 
 
            other benefits.
 
            
 
                 While working for EMCO, claimant received regular 
 
            hourly increases, and was offered vacation and sick leave as 
 
            well as health care benefits, a pension program and 
 
            disability benefits.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on June 15, 1988, which arose out of and 
 
            in the course of her employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on June 15, 
 
            1988, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell, 241 N.W.2d 904; Musselman, 261 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Iowa 352, 154 N.W.2d 128.  The words "arising out of" refer 
 
            to the cause or source of the injury.  The words "in the 
 
            course of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The evidence supports the finding that claimant's 
 
            physical problems began in 1985 when production levels were 
 
            increased at the plant.  Initially, the thumb on claimant's 
 
            right hand caused her to lose time from work and subsequent 
 
            permanent disability.  The initial diagnosis, which has 
 
            remained consistent, was that claimant had degenerative 
 
            changes in the thumb which caused instability of the CMC 
 
            joint.  This condition, though not caused by the employment, 
 
            was aggravated by the employment.
 
            
 
                 When claimant's right thumb and right hand became 
 
            disabled, she was relegated to one armed work, and began 
 
            using extensively her left hand.  As a result, she sustained 
 
            another aggravation to preexisting arthritis found in her 
 
            thumb CMC joint in her left hand.  Physical problems with 
 
            the left thumb began as early as February of 1988, when 
 
            claimant was assigned to light duty work due to the right 
 
            thumb problems.  Eventually, she left work due to the left 
 
            thumb problems on June 15, 1988.
 
            
 
                 Claimant's description of her various job duties was 
 
            sufficient to demonstrate that the physical demands of the 
 
            job created an injury which would be a natural incident of 
 
            the work.
 
            
 
                 Likewise, substantial evidence supports the finding 
 
            that she was performing her required duties at the 
 
            appropriate time and place, and in a manner suitable to meet 
 
            the requirements of the job.
 
            
 
                 As a result, it is concluded that claimant has met her 
 
            burden of proof, and has shown that she sustained an injury 
 
            on June 15, 1988, which arose out of and in the course of 
 
            her employment.
 
            
 
                 The next issue to be addressed is whether a causal 
 
            relationship exists between claimant's injury and her 
 
            current disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 15, 
 
            1988, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 As noted under the facts section of this decision, 
 
            several physicians have rendered opinions regarding the 
 
            amount of permanent impairment claimant has sustained to 
 
            both her right and left upper extremities.  Dr. Reagan, who 
 
            is clearly claimant's treating physician, rendered an 
 
            opinion that claimant's work activity was the cause of her 
 
            permanent disabilities of the left upper extremity.  His 
 
            opinion, coupled with claimant's testimony and the medical 
 
            evidence, supports a finding that claimant's permanent 
 
            disability to the left upper extremity is causally related 
 
            to her work activities and the work injury.
 
            
 
                 The next issue to be addressed is whether the Second 
 
            Injury Fund is exposed to liability on this claim.
 
            
 
                 Iowa Code section 85.64 governs Second Injury Fund 
 
            liability.  Before liability of the Fund is established, 
 
            three requirements must be met.  First, the employee must 
 
            have lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 The Fund first argues that claimant's injuries are 
 
            bilateral and do not constitute separate and distinct 
 
            injuries within the meaning of the code.
 
            
 
                 Although claimant certainly has sustained bilateral 
 
            injuries, there is no evidence in the record which suggests 
 
            that these injuries were sustained simultaneously.  The 
 
            record clearly supports a finding that in 1985, claimant 
 
            began her struggle with the right thumb which eventually led 
 
            to two surgeries.  Those surgeries were performed at the 
 
            base joint of the thumb and involved tendons and bones 
 
            located at the base of the thumb.  A second surgery 
 
            performed approximately one year later involved the tendons 
 
            and two ends of the bones located at the base of the thumb.  
 
            Clearly, this area moves into the palm of the hand, and her 
 
            disability affects the function of the hand.  The case 
 
            presents a difficult determination of the situs of the 
 
            impairment.  The law has long recognized that the situs of 
 
            the impairment is controlling.  See, Snyder v. Sioux 
 
            Transportation, III Iowa Indus. Comm'r Report 240 (1982-
 
            1983).  The agency has consistently held that the wrist is 
 
            considered part of the hand, not the upper extremity.  Elam 
 
            v. Midland Mfg., II Iowa Indus. Comm'r Rep. 144 (App. 1981). 
 
            Additionally, Dr. Reagan's activity restrictions indicate 
 
            claimant is to lift no more than five pounds, and she is to 
 
            perform no heavy repetitive work.  As a result, the medical 
 
            evidence dictates a finding that claimant has sustained 
 
            permanent impairment to her right hand and left upper 
 
            extremity.
 
            
 
                 Likewise, claimant's left thumb injury, and the surgery 
 
            necessary to correct the instability of the thumb follows 
 
            the same procedures as the right thumb.  And, claimant 
 
            sustained some elbow problems which resulted in a cubital 
 
            tunnel release also associated with her work.  As a result, 
 
            the Fund's first argument is rejected.
 
            
 
                 Next, the Fund argues that claimant has no cumulative 
 
            effect which results in industrial disability appropriate 
 
            for Fund liability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was one semester 
 
            shy of obtaining her high school diploma.  She has training 
 
            and experience as a beautician, but testified she was 
 
            unwilling to undertake this occupation because she felt she 
 
            would have to work too hard to make a living, and because of 
 
            the conditions of her arms.
 
            
 
                 Claimant has special training in the nurse's aide 
 
            field, but worked only a short time in the field due to the 
 
            low pay ($2.90 per hour) and her acquisition of a job at 
 
            EMCO in 1978.
 
            
 
                 Claimant began her employment with EMCO earning $4.43 
 
            per hour.  When she left her job with EMCO in November of 
 
            1991, claimant was earning $8.70 per hour.  Curently, she 
 
            earns $7.50 per hour.  She has sustained an actual loss of 
 
            earnings of 14 percent, and her hours have dropped by 
 
            approximately 38 percent.
 
            
 
                 Claimant has severe restrictions to both upper 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            extremities, in that she is limited to lifting not more than 
 
            5 pounds and she is unable to do any type of repetitive 
 
            work.
 
            
 
                 Claimant stated that presently she has difficulty doing 
 
            any type of house work, and stated that she was even unable 
 
            to stir anything because her right hand and her left hand 
 
            both tire easily.  Every day tasks such as bathing and 
 
            combing her hair caused problems because she is unable to 
 
            adequately move either of her extremities.
 
            
 
                 Claimant also testified that she continues to feel pain 
 
            in her right thumb which occasionally locks up.  Her left 
 
            thumb tires easily and she is unable to bend her left elbow 
 
            for a long period of time.  Both wrists ache, and claimant 
 
            states that she takes Motrin one to three times per day.
 
            
 
                 In November 1989, claimant also experienced physical 
 
            problems with her left shoulder.  She underwent 
 
            manipulations while under anesthesia.  Claimant indicated 
 
            that her shoulder creates some continued physical 
 
            difficulties in her daily activities.  Yet, the evidence 
 
            shows that the restrictions placed upon her by Dr. Reagan 
 
            and the impairments assigned to the upper extremities by Dr. 
 
            Reagan and Dr. Bergman preceded the pain in the shoulder.  
 
            It would be difficult to assess any of claimant's industrial 
 
            disability  to her shoulder.  Any residual problems 
 
            attributable to claimant's shoulder were not considered in 
 
            determining her industrial disability.
 
            
 
            After considering all of the factors, it is found that 
 
            claimant has sustained a 50 percent industrial disability.
 
            
 
                 The Fund's liability is determined by using the 
 
            following formula:
 
            
 
                 250  weeks (industrial disability resulting from 
 
            combined effects of all injuries)
 
            
 
                - 34.20 weeks (impairment value of the prior loss:  18%                                       
 
            of 250 weeks)
 
                - 55  weeks (impairment value of the second injuries for                      
 
            which defendant employer is responsible:  22% of                   
 
            250 weeks)
 
               ____________
 
            
 
                160.8 weeks
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant Fund shall pay claimant permanent 
 
            partial disability benefits for one hundred sixty point 
 
            eight (160.8) weeks at the rate of two hundred one dollars 
 
            ($201.00) per week beginning February 12, 1990, the date she 
 
            was released to return to work.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            lump sum.   That defendants shall pay interest on benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Arthur Hedberg, Jr.
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines IA 50309
 
            
 
            Ms. Shirley Steffe
 
            Assistant Attorney General
 
            Attorney General's Office
 
            Tort Claims
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   5-3200
 
                                                   Filed July 31, 1992
 
                                                   Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEA LAWRENCE,                 :
 
                                          :        File No. 889697
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :         D E C I S I O N
 
                                          :
 
                 Defendant,               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-3200
 
            Claimant sustained two separate overuse injuries to both 
 
            thumbs and eventually underwent surgery to correct unstable 
 
            CMC joints.
 
            The only issue was the extent of liability of the Second 
 
            Injury Fund.
 
            Claimant had been a factory worker most of her life.  
 
            Restrictions included 18% and 22% impairment ratings to each 
 
            upper extremity with activity restrictions of no lifting 
 
            greater than five pounds and no heavy repetitive work.
 
            Claimant awarded 50% industrial disability.