BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA RAMIREZ,             :
 
                                          :
 
                 Claimant,                :      File No. 890433
 
                                          :
 
            vs.                           :       D E C I S I O N
 
                                          :
 
            JOHN MORRELL & COMPANY,       :            O N
 
                                          :
 
                 Employer,                :       M E D I C A L
 
                                          :
 
            and                           :      B E N E F I T S
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 On April 24, 1991,(1) Patricia Ramirez (claimant) filed a 
 
            petition for medical benefits as a result of an injury to 
 
            claimant's back occurring on May 23, 1988.  John Morrell & 
 
            Company (John Morrell) was identified as employer and 
 
            National Union Fire was identified as the workers' 
 
            compensation insurer for John Morrell (collectively 
 
            defendants).  On August 26, 1991 these matters came on for 
 
            hearing in Sioux City, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and by her counsel Harry 
 
            Smith of Sioux City, Iowa and John Morrell and National 
 
            Union Fire by their counsel Judith Ann Higgs of Sioux City, 
 
            Iowa.
 
            
 
                 The record in this proceeding consisted of the 
 
            following:
 
            
 
                 1.  The live testimony of the claimant, Dennis Reitz 
 
            and Donna Johnson.
 
            
 
                 2.  Joint exhibits 1-83
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 b.  The claimant sustained an injury on May 23, 1987, 
 
            which arose out of and in the course of employment.
 
            
 
                                    ISSUE
 
 
 
                 The only issue for resolution is whether claimant is 
 
            entitled to attend a pain management clinic at either the 
 
            University of Nebraska or Mercy Pain Center in Des Moines at 
 
            the defendants' expense.
 
            (1).  There is a second petition in the file dated May 1, 
 
            1991 requesting the same relief.  This petition was unsigned 
 
            by claimant's counsel.  The April 24, 1991 filing date will 
 
            be the date used for this proceeding.
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 After considering all of the evidence and the arguments 
 
            of counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            
 
                 1.  At the time of the hearing, claimant was 47 years 
 
            old.  She was employed by John Morrell at the jowl table.  
 
            Her job duties included inspecting meat for hair or skin.  
 
            Once inspected, she threw the meat onto a a combo.  
 
            
 
                 2.  Over the course of her working history, first with 
 
            Iowa Meats and then with John Morrell, claimant has had 
 
            several injuries.  The first injury occurred in November of 
 
            1982 where claimant had a diagnosis of paronchia in the left 
 
            third digit.  Claimant was very anxious about experiencing 
 
            pain and this concern has been expressed many times in 
 
            connection with her various injuries including the injury to 
 
            her back on May 23, 1988.  Beginning in 1982 and for the 
 
            next two years claimant reported various injuries to her 
 
            right arm, hand and thumb.  She was diagnosed as having 
 
            tendonitis and myositis.  Claimant received treatment for 
 
            these conditions from a variety of doctors including Dr. 
 
            Grossman, Dr. Jennings, Dr. Budensiek, Dr. Nitz and Dr. 
 
            Paulsrud.  Claimant's other work related injuries included a 
 
            lumbosacral strain in her back and exposure to ammonia.  
 
            
 
                 3.  As a result of all these injuries, claimant 
 
            recieved a 20 percent rating to the body as a whole on June 
 
            15, 1987 by Horst G. Blume M.D..  Dr. Blume found that 
 
            claimant was suffering from myofascial pain syndrome and 
 
            myofascitis of the extensor muscle group in the right lower 
 
            arm and shoulder.  John J. Dougherty, M.D. also examined 
 
            claimant and found degenerative changes in her neck and 
 
            degenerative athritis in her neck and spine.  Dr. Dougherty 
 
            found a five percent functional impairment for claimant's 
 
            right arm only.  He did not rate claimant's back.
 
            
 
                 4.  On May 23, 1988, claimant suffered another injury 
 
            when she walked into the cooler to bring out meat in 
 
            barrels.  The cooler was icy and her feet went out from 
 
            under her.  She fell on her buttocks and experienced some 
 
            pain at that time.  Afterwards, the pain got worse and she 
 
            sought medical assistance.
 
            
 
                 5.  On June 4, 1988, claimant received restrictions as 
 
            a result of the injury on May 23, 1988.  Claimant could lift 
 
            to ten pounds and she could walk or stand for 6-8 hours.  
 
            Claimant could also bend, kneel and reach above shoulder 
 
            level on an occasional basis.  Claimant was to remain on 
 
            light duty work for at least four weeks.
 
            
 
                 6.  On June 7, 1988, claimant was still complaining of 
 
            headaches and stiff neck.  The diagnosis at this date was 
 
            acute traumatic sprain of the cervical dorsal and lumbar 
 
            area with subluxation.  Claimant was referred to a 
 
            chiropractor for manipulation.  Claimant's pain did not 
 
            abate and she was referred to Dr. Miller for consultation.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 7.  Dr. Miller examined claimant on July 1, 1988.  Dr. 
 
            Miller had x-ray studies and an MRI study performed of 
 
            claimant's spine.  The x-rays studies were normal.  The MRI 
 
            study of the cervical spine was normal.  The MRI study of 
 
            the lumbar spine showed that there was a degenerative disc 
 
            at L4-5 and L5-S1 and a mild bulging at L4-5 and L5-S1.  
 
            However, there was no definite evidence of a herniated disc.
 
            
 
                 8.  On July 8, 1988, claimant was discharged from 
 
            medical care and was returned to work with restrictions.  
 
            Claimant could lift up to 25 pounds and she could stand for 
 
            8-10 hours.  Claimant was permitted to grasp with her left 
 
            and right hands and she was could bend, carry and kneel 
 
            frequently.  Claimant could reach above shoulder level 
 
            frequently and she could use a Whizard knife and a straight 
 
            knife in both hands.
 
            
 
                 9.  Claimant was next seen by Dr. Carlson on July 25, 
 
            1988.  He ordered an MRI scan of claimant's cervical and 
 
            lumbar spine.  The study showed that claimant had marked 
 
            disc degeneration at L4-5 and L5-S1.  The degernative 
 
            condition was especially marked at the L5-S1 level.  There 
 
            was severe L5-S1 disc space narrowing.  There was also a 
 
            moderately prominent central disc protrusion at the S1 level 
 
            and to a lesser extent at the L4-5 level.  However, no 
 
            definite disc herniation was identified and no other 
 
            abnormality was noted.  Claimant's cervical spine was 
 
            normal.  Claimant was diagnosed as having degenerative disc 
 
            disease at the two lowest lumbar vertebrae.  
 
            
 
                 10.  Thereafter, claimant embarked on a course of care 
 
            for her back that included visits to several doctors 
 
            including Drs. Samuleson, Walck, Goldner, Spencer, Krigsten, 
 
            Miller and Volk.  She also had a variety of physical and 
 
            manipulative therapy.  None of the conservative treatment 
 
            modalities recommended by these physicians relieved claimant 
 
            of her pain.  An aggressisve treatment program was 
 
            recommended by Drs. Goldner and Walck that included weight 
 
            loss, muscle conditioning, range of motion exercises and 
 
            medication to relieve pain and depression.  Counseling was 
 
            also suggested.  Claimant was not diligent in participating 
 
            in these treatment modalities because of her pain.  However 
 
            she was anxious to return to work.  After she had been in 
 
            treatment for a while, she was released to return to light 
 
            duty on May 3, 1989.  
 
            
 
                 11.  When claimant was seen by Dr. Durward later in May 
 
            of 1989, he ordered a new round of tests to pinpoint the 
 
            source of claimant's pain.  A second MRI study of claimant's 
 
            cervical and lumbar spine revealed that claimant had 
 
            degenerative disc disease at L3-4, L4-5 and L5-S1 with mild 
 
            to moderate posterior bulging at all levels slightly greater 
 
            off to the right than to the left at L3-4 and L5-S1.  
 
            Otherwise the study had not significantly changed from the 
 
            previous studies.  An EMG study was also performed and it 
 
            was normal.  However, after claimant's myelogram on July 28, 
 
            1989, Dr. Durward indicated that claimant had a migrated 
 
            free fragment which had apparently herniated from the L5-S1 
 
            space.  This fragment was causing compression upon the L5 
 
            nerve root.  The fragment was central to the location.  The 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            myelogram also showed an intervertebral disc space narrowing 
 
            with a vacuum disc phenomenon at L5-S1 with no evidence of a 
 
            ventrolateral extradural defect.  Dr. Durward was absolutely 
 
            certain that this was causing claimant's pain and even 
 
            though it had taken a long time to find it, he believed she 
 
            would get substantial relief from a diskectomy and surgery 
 
            was scheduled.
 
            
 
                 12.  On August 21, 1989, claimant had a right L5 
 
            hemilaminectomy and L5-S1 diskectomy.  During the course of 
 
            the surgery, Dr. Durward found a true herniated sequestrated 
 
            disk rupture.  The disk had been there for quite a while 
 
            because it was stuck to the ventral thecal sac and was 
 
            somewhat hard.  Dr. Durward noted that eight fragments of 
 
            disk material had extruded from the disk space of the L5 
 
            bodies.  He noted that there was a small amount of residual 
 
            disk material within the disk space.  
 
            
 
                 13.  After the surgery, claimant's pain complaints did 
 
            not abate.  Claimant had another series of studies made of 
 
            her lumbar spine.  A CT scan performed November 7, 1989 
 
            showed evidence of a partial inferior right L-5 
 
            hemilaminectomy and a post-operative posterior soft tissue 
 
            thickening.  Dr. Beeler, the radiologist thought the CT scan 
 
            showed a re-current disc herniation with an extruded 
 
            fragment to the right L5 pedicle and post-operative 
 
            fibrosis.  The bulging at the L3-4 and L4-5 levels remained 
 
            unchanged.  A myelogram of the lumbar spine performed on 
 
            November 7, 1989, confirmed the findings regarding the 
 
            bulging discs and scar formation identified by the CT scan.  
 
            However, the myelogram did not show evidence of a recurrent 
 
            or residual disc herniation.  An MRI study performed on 
 
            November 17, 1989 confirmed the results of the myelogram 
 
            study.  Claimant had a nerve study and an EMG performed on 
 
            November 17, 1989 as  well.  The nerve study was normal.  
 
            The EMG showed mild increases in L-5 spinal irritability and 
 
            a mild chronic denervation pattern.  The L-5 mytomal 
 
            denervation was compatible with the residual from the prior 
 
            radiculopathy.  This evidence suggested that claimant might 
 
            have ongoing right L-5 nerve entrapment, which could be the 
 
            source of her pain.  However, the nerve conduction studies 
 
            did not suggest a superimposed peripheral entrapment 
 
            neruopathy or polyneuropathy. 
 
            
 
                 14.  On January 8, 1990, claimant was evaluated at the 
 
            Institute for Low Back Care in Minneapolis.  Claimant 
 
            complained of pain in her back that was most severe when she 
 
            was in bed in the morning and at the end of the day.  
 
            Claimant's pain was made worse with lying on her stomach or 
 
            back, rising from sitting, driving, standing, leaning 
 
            forward, bending forward, light exercise, heavy exercise and 
 
            coughing.  The pain decreased when claimant was laying on 
 
            her side.   
 
            
 
                 15.  After a complete  examination, claimant's 
 
            diagnosis was was facet syndrome at L5-S1, lumbar 
 
            degenerative disc disease at L4-5, L5-S1, and mechanical low 
 
            back pain syndrome with leg pain, myofascial pain syndrome, 
 
            post laminectomy syndrome at L5-S1 on the right, sciatic 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            radiculitis and overweight.  Claimant was then referred to 
 
            physical therapy for treatment.
 
            
 
                 16.  On February 17, 1990, Dr. Durward wrote to Mary 
 
            Mitchell, regarding claimant's case.  He indicated that 
 
            based on the last myelogram he felt that there was a very 
 
            high chance that claimant would get over her back problems 
 
            with further conservative measures.  If those measures 
 
            failed, then he believed that claimant would need to have a 
 
            fusion as the only option to relieve her back pain.
 
            
 
                 17.  On March 20, 1990, claimant began a new physical 
 
            therapy treatment program to decrease pain in her back.  The 
 
            treatment lasted from March through December of 1990.
 
            
 
                 18.  In May, claimant, was given a TENS unit which 
 
            seemed to improve her pain.  During the course of claimant's 
 
            physical therapy treatment, she was treated for ongoing pain 
 
            complaints.  In May, claimant was given a TENS unit and that 
 
            seemed to improve her pain.  By the end of May, claimant had 
 
            progressed to a level that would allow her a limited return 
 
            to work.  Claimant began working short days after June 1, 
 
            1990.
 
            
 
                 19.  In August 1990, claimant was released to return to 
 
            work for eight hours per day.  Claimant reported to Dr. 
 
            Durward that her back was really not bothering her at all 
 
            but she was still having radicular pain that was present all 
 
            the time.  Additionally, claimant was still suffering from 
 
            depression.  Consequently, Dr. Durward prescribed Prozac for 
 
            claimant to combat her depression due to the residual pain.  
 
            
 
                 20.  During September of 1990, claimant indicated to 
 
            therapist, Henrietta Scholten, that she wanted to continue 
 
            therapy until she felt good enough to work overtime.  By 
 
            this time, claimant's pain complaints had settled in her 
 
            right buttock and right leg.  In addition to the therapy, 
 
            Dr. Durward decided to try a nerve block to relieve 
 
            claimant's pain complaints in her leg.
 
            
 
                 21.  On November 3, 1990, Dr. Durward wrote a report 
 
            indicating that claimant was still having pain down the 
 
            right leg.  He noted that claimant had good transient 
 
            results from the nerve root block and therapy but the pain 
 
            on the right side was not resolving.  Dr. Durward decided to 
 
            repeat the S1 root block.  If there was not substantial 
 
            relief after the nerve block, then he wanted to proceed with 
 
            the repeat myleogram because he felt that something was 
 
            irritating the S1 nerve root.
 
            
 
                 22.  Claimant continued her physical therapy treatment 
 
            with Henrietta Scholten from January of 1991 through April 
 
            1991.
 
            
 
                 23.  The second nerve root block was of little benefit 
 
            to claimant.  On January 26, 1991, Dr. Durward reviewed the 
 
            results of claimant's most current myelogram.  He noted that 
 
            the study showed excellent decompression at L5-S1 and a mild 
 
            bulging at L4-5 and L3-4 discs, slightly more to the left 
 
            but nothing going down the right.  Dr. Durward concluded 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            that despite a lot of conservative treatment, claimant has 
 
            had an unsatisfactory residual amount of pain.  He felt that 
 
            it was time to consider use of Elavil at night to see 
 
            whether that would control the pain and her depressive 
 
            feelings.  The other recommendation he made was for claimant 
 
            to participate in the pain clinic at the University of 
 
            Nebraska.  Dr. Durward was going to make that referral this 
 
            week through his office.  It had become very clear to him 
 
            that claimant was depressed about the amount of pain she was 
 
            having and whether she was going to be able to keep her job 
 
            or go on welfare.  Dr. Durward concluded that the pain 
 
            clinic had a very significant chance of helping her live 
 
            with the residual pain that she had.
 
            
 
                 24.  On March 12, 1991, Dr. Durward gave claimant a 
 
            permanent restriction to eight hours of work per day.
 
            
 
                 25.  On March 25, 1991, claimant received a 
 
            correspondence from University of Nebraska Medical Center 
 
            Pain Program.  This letter indicated that she had been 
 
            referred by Dr. Durward's office to the pain clinic.
 
            
 
                 26.  On May 3, 1991, Maggie Covey, a vocational 
 
            consultant for GAB Business Services, reviewed claimant's 
 
            pain management resources after an interview with claimant.  
 
            She noted in her letter, that Dr. Durward had recommended a 
 
            pain management program for claimant at either the  Mercy 
 
            Pain Center in Des Moines or the University of Nebraska Pain 
 
            Center.  Claimant appeared hesitant to commit to a pain 
 
            management program at the time of this interview which was 
 
            in April 1991.  Ms. Covey indicated that at the conclusion 
 
            of her interview with claimant that she would arrange an 
 
            evaluation consultation with Dr. Blessman at the Mercy Pain 
 
            Clinic in Des Moines for claimant, that she would explore 
 
            pain management resources in Sioux City and maintain contact 
 
            with claimant promoting nutritional wellness, sleep pattern 
 
            awareness, adaptation in the work place, and stress/pain 
 
            management counseling.
 
            
 
                 27.  On May 13, 1991, Dr. James Blessman directed a 
 
            letter to Ms. Covey regarding the pain management program at 
 
            Mercy and his evaluation of claimant's pain condition.  Dr. 
 
            Blessman reviewed the appropriate studies that had been done 
 
            prior to her surgery and following her surgery.  Dr. 
 
            Blessman noted that claimant was not on any pain medications 
 
            because she had been refusing to take this medication.  Dr. 
 
            Blessman felt that she was an excellent candidate for 
 
            rehabilitation.  He did advise that he would encourage her 
 
            to take some medication for her depression and some 
 
            medication for her pain.  Dr. Blessman also included an 
 
            accreditation of the Mercy Pain Center by the Commission on 
 
            Accreditation of Rehabilitation Facilities.  The Mercy Pain 
 
            Center has been in existence for over eight years and during 
 
            that time, more than 1,400 patients have been treated for 
 
            chronic pain problems.  The pain center has had a 90 percent 
 
            success rate with patients suffering from heaches and 
 
            stress-related abdominal pain and a 70 percent success rate 
 
            has been achieved for patients suffering from back problems.
 
            
 
                 28.  On June 26, 1991, a progress report was made by 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Maggie Covey.  In this report, she reported that she had met 
 
            with Dr. Blessman at the Mercy Pain Clinic in Des Moines.  
 
            On June 26, 1991, the question of whether claimant would be 
 
            allowed to go to the Mercy Pain Clinic was put on hold 
 
            awaiting the direction of the carrier.  Thereafter, the 
 
            carrier decided not to pay for a pain clinic.
 
            
 
                 29.  Claimant believes that she needs the pain clinic 
 
            to learn to live with her pain.  The program would last six 
 
            weeks.  Claimant testified that every day she has a dull 
 
            sharp pain and pins and needles type pains in her back, 
 
            buttocks and down her right leg.  Claimant has refused pain 
 
            medication because she is fearful that she would become drug 
 
            dependant on the pain medication.  She takes a rather stiff 
 
            dose of Tylenol on a daily basis which allows her to work 
 
            her eight hour shift.  Claimant is restricted to an eight 
 
            hour shift, however she does sometimes work longer hours.  
 
            Claimant indicated that her social life has been severly 
 
            restricted because of her pain, she generally at the end of 
 
            day, prepares dinner, watches the news, waters her garden, 
 
            takes care of her flowers and then goes to bed.  
 
            
 
                 30.  Claimant's supervisor has noted that claimant is 
 
            doing her job adequately and has had no complaints of pain 
 
            while at work.
 
            
 
                 31.  The nurse at John Morrell has also had an 
 
            opportunity to observe claimant and she has indicated that 
 
            she has not made any complaints of pain to her.  Ms. Johnson 
 
            was aware, however, that Dr. Durward had recommended the 
 
            pain clinic.  Ms. Johnson was of the view that the pain 
 
            clinic in Des Moines would not be helpful.  John Morrell's 
 
            experience has been that most of their employees who have 
 
            been through the pain clinic have not been helped by it.
 
 
 
                                        
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant argues that she should be allowed to attend a 
 
            pain management clinic at either the University of Nebraska 
 
            or in Des Moines at the Mercy Pain Clinic.  Defendants argue 
 
            that the pain management clinic is not a reasonable medical 
 
            expense that is necessary to treat claimant's condition.  
 
            Moreover, defendants urge that they have provided all the 
 
            care necessary to treat claimant's condition and that a 70 
 
            percent success rate for the pain clinic is insufficient to 
 
            justify the expense of sending claimant to the pain clinic 
 
            in Des Moines.
 
            
 
                 This dispute is governed by Section 85.27 which 
 
            provides that the employer, for all injuries compensable 
 
            under the chapter 85 or 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies and allow reasonably 
 
            necessary transportation expenses incurred for such 
 
            services.  The employer is obliged to furnish reasonable 
 
            services and supplies to treat an injured employee, and has 
 
            the right to choose the care.  
 
            
 
                 While the term reasonable services and supplies has not 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            been defined in the statute, a recent U.S. Supreme Court 
 
            case provides a good definition of reasonableness.  The 
 
            reasonableness of the care is assessed by reviewing 
 
            circumstances of giving the care, not by reviewing the 
 
            actual results of care.  Cruzan v. Director, Mo. Dep't of 
 
            Health, 110 S. Ct. 2841 (1990).  This standard was discussed 
 
            in Hanson v. Reichelt, File No. 742863, Slip op. (Iowa Ind. 
 
            Comm'r Remand Decision, March 13, 1991).
 
            
 
                 In this case, there is no question that the pain 
 
            management clinic is a reasonable service that the employer 
 
            should provide.  Claimant has documented pain complaints 
 
            that have existed from the date of her injury.  The 
 
            treatment of the pain has been intermittently successful and 
 
            unsuccessful.  To judge the reasonableness of the care by 
 
            the success rate that Mercy has experienced denies the 
 
            essential question of whether claimant's treating physician 
 
            has determined that this treatment is worthwhile.  Since the 
 
            treating physician has concluded that the treatment is 
 
            worthwhile, John Morell's experience with pain clinics and 
 
            Mercy's success rate is irrelevant since the treating 
 
            physician has decided that the pain clinic is worth trying.
 
            
 
                 More importantly, the defendant's argument regarding 
 
            the quantity of care they have given and its reasonableness 
 
            also fails when the treating physician has authorized a 
 
            treatment modality.  Even though the employer is entitled to 
 
            choose the care, the employer cannot interfere with the 
 
            physician's professional judgment on what treatment 
 
            modalities the physician determines to be appropriate.  
 
            Wright v. Super 8 Lodge of Des Moines File No. 858615, Slip 
 
            Op. (Iowa Ind. Comm'r Arb. February 20, 1990).  The 
 
            Commissioner has examined this question where a pain clinic 
 
            was in issue.  The Commissioner held that if a pain clinic 
 
            was recommended by an authorized physician, the employer 
 
            could not interfere with that recommendation.  The employer 
 
            was directed to pay for the clinic.  Pitzer v. Rowley 
 
            Interstate, File No. 766890, Slip op. (Iowa Ind. Comm'r App. 
 
            September 24, 1991).  In Pitzer, claimant's authorized 
 
            doctor referred him to a pain clinic and defendants would 
 
            not authorize the treatment.  The Commissioner held that 
 
            since an authorized doctor's referral makes the referred 
 
            doctor authorized, Carnes v. Sheaffer Eaton, No. 836644, 
 
            Slip op. at 6 (Iowa Ind. Comm'r Arb. February 7, 1991); 
 
            Munden v. Iowa Steel & Wire, 33 Iowa Industrial 
 
            Commissioner Biennial Report 99, 100 (Arb. 1979); and since 
 
            the employer cannot direct the course of treatment Wright v. 
 
            Super 8 Lodge of Des Moines, File No. 858615, Slip op. (Iowa 
 
            Ind. Comm'r Arb. February 20, 1990), the pain clinic was 
 
            authorized and defendants were directed to bear the cost of 
 
            the pain clinic.
 
            
 
                 Likewise in this case, the defendants cannot interfere 
 
            with the treatment modalities recommended by an authorized 
 
            treating physician.  Dr. Samuelson made the referral to Dr. 
 
            Durward for claimant's ongoing back complaints.  Clearly, 
 
            the defendants allowed claimant to continue with Dr. Durward 
 
            for an extended period of time without objection.  Dr. 
 
            Durward is an authorized treating physician.  When a pain 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            clinic was proposed to deal with claimant's intractable 
 
            pain, the defendants decided that they had paid enough.  
 
            This denial of fundamental benefits under the worker's 
 
            compensation provisions is not what the statute or the case 
 
            law contemplates.  The pain clinic at the University of 
 
            Nebraska was recommended by Dr. Durward and a referral was 
 
            made to that program.  This is the pain clinic the claimant 
 
            may attend.  If Dr. Durward believes that the pain clinic in 
 
            Des Moines would be a better alternative for claimant and he 
 
            makes a referral to this clinic, then claimant may go there.  
 
            Dr. Durward is the authorized physician and controls the 
 
            referral.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 1.  That claimant shall be entitled to attend a pain 
 
            clinic recommended by Dr. Durward.  Dr. Durward has made a 
 
            referral to the pain clinic at the University of Nebraska.  
 
            Dr. Durward is free to refer claimant to an alternative pain 
 
            clinic to treat claimant's intractable pain.
 
            
 
                 2.  The costs of this action shall be assessed 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          ELIZABETH A. NELSON
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Harry H Smith
 
            Attorney at Law
 
            632-640 Badgerow Building
 
            PO Box 1194
 
            Sioux City Iowa 51102
 
            
 
            Ms Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                                5-2505
 
                                                Filed August 17, 1992
 
                                                ELIZABETH A. NELSON
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA RAMIREZ,             :
 
                                          :
 
                 Claimant,                :      File No. 890433
 
                                          :
 
            vs.                           :       D E C I S I O N
 
                                          :
 
            JOHN MORRELL & COMPANY,       :            O N
 
                                          :
 
                 Employer,                :       M E D I C A L
 
                                          :
 
            and                           :      B E N E F I T S
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2505
 
            Employer could not interfere in treatment recommended by 
 
            treating physician even though the employer had not had much 
 
            success with the treatment modality, a pain clinic.  The 
 
            authorized treating physician controls the care and if a 
 
            pain clinic is indicated and the employer has accepted 
 
            liability for the claim, then the pain clinic must be paid 
 
            for by the employer.  Pitzer v. Rowley Interstate, File No. 
 
            766890, Slip op. (Iowa Ind. Comm'r App. September 24, 1991)
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL WILKINS,              :
 
                                          :
 
                 Claimant,                :     File Nos. 895553; 
 
            890606;
 
                                          :               940622; 
 
            910549;
 
            vs.                           :               910550; 910551
 
                                          :
 
            IBP, INC.,                    :
 
                                          :       A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :          D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petition 
 
            of claimant, Michael Wilkins, against his employer, IBP, 
 
            Inc., and the Second Injury Fund, defendants.  The case was 
 
            heard on June 18, 1991, in Burlington, Iowa at the Des 
 
            Moines County Courthouse.  The record consists of the 
 
            testimony of claimant; the testimony of Bobbie Jean Wilkins; 
 
            the testimonies of Rolene Collier; former plant nurse; John 
 
            Flores, Jr., assistant personnel manager; and, Sherry 
 
            Wilson, workers' compensation coordinator.  The record also 
 
            consists of joint exhibits A to BB and claimant's exhibits 
 
            29, 30 and 36.
 
            
 
                 The attorneys are advised to better prepare their 
 
            exhibits for hearing.  There were many duplications which 
 
            slowed down the process of writing the decision.  Some 
 
            exhibits appeared three times.  Additionally, there were 
 
            even records submitted for a patient named Kenneth Harding.  
 
            The attorneys shall govern themselves accordingly in the 
 
            future!
 
            
 
                 During the hearing, claimant withdrew file number 
 
            910550.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received injuries which arose out of and in the course of 
 
            his employment; 2) whether there are causal relationships 
 
            between the alleged injuries and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; and, 4) 
 
            whether claimant is entitled to benefits from the second 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injury fund.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 34 years old.  At the time of the hearing, 
 
            claimant was married but separated from his spouse.  Prior 
 
            to moving to Indiana, claimant lived in the Wapello County 
 
            Care Facility and at the Mental Health Institute in Mount 
 
            Pleasant, Iowa.
 
            
 
                 Claimant completed the ninth grade and started the 
 
            tenth grade where he was receiving a specialized education.  
 
            He dropped out of school and joined the United States Marine 
 
            Corps at 18.  While in the Marines, he was sent to combat 
 
            engineer's school where he learned demolition.
 
            
 
                 Claimant was honorably discharged from the service 
 
            after 11 months and 22 days.  He had been beaten and kicked 
 
            by three marines who jumped him and left him unconscious.  
 
            Claimant also boxed on a regular basis while in the Marines.  
 
            He had 12 bouts.
 
            
 
                 After his discharge, claimant held a number of 
 
            positions in construction; as a shuttle driver; and, as an 
 
            owner of his own lawn care business.  Claimant was also in 
 
            the Marine Reserves.  He also obtained his GED.  Claimant 
 
            commenced his employment with defendant in December of 1986.  
 
            He terminated his employment on April 29, 1989.
 
            
 
                 When claimant started work with defendant employer, he 
 
            was placed on the picnic line where he made four cut marks 
 
            on every picnic ham which traveled down a line.  Claimant 
 
            used a knife with his right hand to make the cuts.  He 
 
            grabbed the picnic hams with his left hand and held them 
 
            using his left thumb.
 
            
 
                 Claimant also worked on the picnic line where he made 
 
            two cut marks on each picnic.  Again claimant grabbed a 
 
            picnic with the left hand and used the knife with his right 
 
            hand.
 
            
 
                 Because of various problems with his hands, claimant 
 
            was assigned the job of pulling trolleys with his left hand.  
 
            He was also assigned lighter duty jobs such as a janitor's 
 
            position and watching the trash dumpster.
 
            
 
                 Claimant alleges he sustained injuries to his right 
 
            upper extremity, his left upper extremity and that he 
 
            incurred a separate injury to his head.
 
            
 
                 Claimant had two surgeries on his right hand for a 
 
            carpal tunnel release.  Calvin Atwell, M.D., performed the 
 
            surgeries.  Initially on March 9, 1988, Dr. Atwell performed 
 
            a decompression of the right median nerve.  On June 20, 
 
            1988, Dr. Atwell performed the second surgery for a 
 
            decompression of carpal tunnel ligament which freed up of 
 
            adhesions around the median nerve.  As of July 1, 1988, Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Atwell released claimant to return to work so long as he did 
 
            not use his right hand.  In his report of July 27, 1988, Dr. 
 
            Atwell opined:
 
            
 
                 I saw Michael Wilkins in the office on July 21st 
 
                 for a return visit after having had his right 
 
                 median nerve decompressed from his carpal ligament 
 
                 on June 20, 1988.  He is going quite well.  He 
 
                 appeared to have a normal neurological 
 
                 examination.  He does still have some weakness in 
 
                 his fingers and his hand because of immobility.  
 
                 He was instructed to continue his therapy while at 
 
                 home with strengthening exercises on his finger 
 
                 and hand.  I would anticipate that within two 
 
                 weeks he ought to be taken off of light duty.
 
            
 
                 I would recommend that Mr. Wilkins not return to 
 
                 the use of straight knives or the wizard knife 
 
                 since we want to prevent a recurrence of the 
 
                 carpal tunnel syndrome.
 
            
 
            (Exhibit T6)
 
            
 
                 Claimant experienced difficulties with his left thumb 
 
            or hand in October of 1988.  Rouben Mirbegian, M.D., 
 
            performed a left thumb ligament reconstruction.  Claimant 
 
            had a condition known as gamekeeper's thumb which was 
 
            consistent with a work related injury.
 
            
 
                 Dr. Mirbegian evaluated claimant for any permanent 
 
            impairment.  In his report of November 13, 1989, Dr. 
 
            Mirbegian opined claimant had the following impairment:
 
            
 
                 As you know, Mr. Michael Wilkins did come in for a 
 
                 disability evaluation on 10-30-89.  This patient 
 
                 did have previous right carpal tunnel release and 
 
                 also he had reconstruction of his left thumb at 
 
                 the PIP joint due to disruption of those ligaments 
 
                 while employed at IBP.  Patient's muscle strength 
 
                 was examined using a Jamar Dynamometer.  His range 
 
                 of motion was also measured. [sic] especially the 
 
                 left thumb which he had reconstruction surgery 
 
                 done.
 
            
 
                 His right hand revealed that he has weakness of 
 
                 grasp.  This hand has 5% permanent impairment of 
 
                 his upper extremities due to loss of grip 
 
                 comparing to the left side.  His left hand thumb 
 
                 reveals that he has 14% permanent impairment of 
 
                 his upper extremity due to reconstruction of the 
 
                 left thumb ligament.
 
            
 
                 So all together this patient has 19% permanent 
 
                 impairment of his upper extremity which appears to 
 
                 be permanently impaired.  If you have any further 
 
                 questions, please don't hesitate to write to me.
 
            
 
            (Ex. L10)
 
            
 
                 Claimant returned to work on or about December 1, 1988, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            where he was assigned a position as a trash monitor.  It was 
 
            his task to fit garbage into a compactor located north of 
 
            the building.  Ice on the floor would form near the trash 
 
            compactor.  Claimant testified that on the morning of 
 
            December 9, 1988, he slipped on the ice, fell and struck his 
 
            head on a wooden pallet.  Claimant testified a man wearing 
 
            an orange hat, by the name of Tim, observed the fall and 
 
            helped claimant up.  Claimant testified he reported the fall 
 
            to his supervisor, John Pytel and that claimant was advised 
 
            to see the nurse, Rolene Collier.  Claimant testified he 
 
            visited with the nurse for less than five minutes and she 
 
            flashed a light into claimant's eyes, quizzed him, gave him 
 
            an aspirin and sent him back to work.  After his visit to 
 
            the nurse's station, claimant testified he notified John 
 
            Flores, a co-employee, of the slip and fall.
 
            
 
                 Claimant's wife, Bobbie Jean Wilkins, testified that on 
 
            December 9, 1988, claimant came home from work, reported he 
 
            felt dizzy and stated he had fallen that day.  Ms. Wilkins 
 
            testified she noticed a huge change in claimant's behavior 
 
            subsequent to the fall.
 
            
 
                 Rolene Collier, R.N., testified at hearing that she was 
 
            the plant nurse on December 9, 1988, but that she had no 
 
            recollection of claimant reporting a slip and fall on that 
 
            date.  Moreover, Ms. Collier testified she made no entry on 
 
            the plant medical records relative to a fall on December 9, 
 
            1988.  Ms. Collier's records did not contain any reference 
 
            to any fall on the part of claimant.  None of the notes 
 
            indicated claimant had been given an aspirin.
 
            
 
                 John Flores testified at the hearing.  He worked with 
 
            claimant in 1988 when claimant was a trash monitor.  Mr. 
 
            Flores testified he did not recall any conversation with 
 
            claimant relative to a fall at or near the time of the 
 
            alleged fall.  Mr. Flores stated claimant first advised him 
 
            of an alleged fall on June 1, 1990.  Prior to that date, Mr. 
 
            Flores had no knowledge of an alleged head injury.
 
            
 
                 Lonnie John Pytel testified by deposition.  Mr. Pytel 
 
            testified he never had a conversation with claimant relative 
 
            to an alleged fall.
 
            
 
                 Timothy Alan Gerst testified by deposition.  He 
 
            testified, to the best of his knowledge, he had never 
 
            observed claimant slip on ice.  He testified he never 
 
            assisted claimant in getting up from a fall.  Mr. Gerst also 
 
            testified he never spoke with claimant about any alleged 
 
            fall.  No witnesses to the fall were ever found.
 
            
 
                 Claimant worked at IBP through April 30, 1989.  On his 
 
            last day of work, claimant worked 5.5 hours as a janitor.  
 
            Claimant felt strain on his hands and arms.  He testified he 
 
            could not tolerate the weight of the barrels with his hands.  
 
            Claimant had been released to return to work without 
 
            restrictions.  However, he felt he was unable to do 
 
            repetitive work, and he felt his grip strength was worse.  
 
            Claimant applied for short term disability benefits 
 
            following his last day of work.  He also applied for social 
 
            security disability benefits.  At the time of the hearing, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant had not been awarded social security disability 
 
            benefits.
 
            
 
                 Claimant was hospitalized subsequent to the last day he 
 
            worked at defendant-employer's establishment.  Claimant was 
 
            notified by letter from defendant that he had overextended 
 
            his one year medical leave of absence and would need to 
 
            return to work.  Claimant declined to return to work because 
 
            he felt he had a memory loss attributable to his alleged 
 
            fall.  Claimant was later terminated.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is whether claimant 
 
            sustained an injury on December 9, 1988, which arose out of 
 
            and in the course of his employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 9, 
 
            1988, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967).
 
            
 
                 In the instant case, claimant has not proven by a 
 
            preponderance of the evidence that he has sustained an 
 
            injury which arose out of and in the course of his 
 
            employment.  Claimant alleges he fell and struck his head on 
 
            a wooden pallet.  His credibility is at issue.  His ability 
 
            to recall specific events is questioned.  Claimant, despite 
 
            his severe memory loss, vividly recalls telling co-workers 
 
            about his fall.  The co-workers have no memory of such 
 
            conversations.  A co-worker, who supposedly assisted 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant up from the fall, has no recall of the incident.  
 
            The nurse who supposedly attended to claimant after the fall 
 
            has no recollection of treating claimant.  Nor do the 
 
            nurse's notes reflect treatment of any kind for claimant on 
 
            that day.  If the nurse would have treated claimant and sent 
 
            him back to work, there would be no need to eliminate the 
 
            treatment from the records since claimant was not injured.  
 
            Claimant was unable to produce any co-workers who could 
 
            corroborate his allegations.  Nor did a supervisor, 
 
            responsible for safety concerns, recall receiving a verbal 
 
            report from claimant relative to an on site accident on 
 
            December 9, 1988.
 
            
 
                 There is no question in this deputy's mind that 
 
            claimant has some physical and/or emotional problems which 
 
            affect claimant's memory.  However, claimant had past 
 
            experiences which could account for claimant's memory 
 
            problems.  Claimant claims he was struck in the head by 
 
            three fellow marines.  Claimant engaged in 12 previous 
 
            boxing matches where he was struck repeatedly.  Claimant had 
 
            previous episodes of alcohol binges.  Claimant had previous 
 
            psychiatric problems, including a suicide attempt.  All of 
 
            the aforementioned could be causally related to claimant's 
 
            present memory/emotional problems.  No witness corroborates 
 
            claimant's account of a fall on December 9, 1988.  
 
            Therefore, it is the opinion of this deputy that claimant 
 
            did not sustain an injury to his head which arose out of and 
 
            in the course of his employment. 
 
            
 
                 The next issue to address is whether claimant sustained 
 
            an occupational disease to either his right wrist, because 
 
            of his carpal tunnel syndrome, or to his left thumb/hand 
 
            because of his gamekeeper's thumb.  In the case of Peters v. 
 
            Lamoni Auto Assemblies, Inc., File No. 809203 (Appeal 
 
            Decision filed March 31, 1989), the industrial commissioner 
 
            rejected claimant's argument that her left carpal tunnel 
 
            syndrome was an occupational disease under Chapter 85A since 
 
            claimant was entitled to benefits under Chapter 85.
 
            
 
                 In that case, claimant did not sustain her burden of 
 
            proof that she had incurred an occupational disease.  
 
            Likoewise, in the case at hand, claimant has not proven that 
 
            carpal tunnel syndrome and gamekeeper's thumb are diseases 
 
            under Chapter 85A.  All Dr. Mirbegian opines is that the 
 
            conditions are the result of overuse.  The medical testimony 
 
            does not describe carpal tunnel syndrome and gamekeeper's 
 
            thumb as syndrome diseases which arise out of and in the 
 
            course of the employee's employment and which have direct 
 
            causal connections with the employment and which have 
 
            followed as natural incidents thereto from injurious 
 
            exposures occasioned by the nature of employment.  See 
 
            section 85A.8 of the Iowa Code.  In light of the Peters 
 
            case, this deputy determines claimant's right carpal tunnel 
 
            syndrome and claimant's left gamekeeper's thumb are not 
 
            occupational diseases under Chapter 85A.
 
            
 
                 The third issue before this deputy is whether claimant 
 
            has sustained a permanent partial disability as a result of 
 
            his right carpal tunnel syndrome.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Claimant sustained cumulative trauma on March 10, 1988.  
 
            He had two separate surgeries performed for right carpal 
 
            tunnel syndrome.  Dr. Mirbegian opined claimant had a five 
 
            percent permanent partial impairment rating to the right 
 
            upper extremity.  He wrote that the impairment did not 
 
            extend beyond the right hand.  His opinion is 
 
            uncontroverted.  Only the hand was affected.  See:  Elam v. 
 
            Midland Mfg., II Iowa Indus. Comm'r Rep. 141 (Appeal Decn. 
 
            1981)
 
            
 
                 Using the Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition, Table 2, p. 19, five percent of 
 
            the upper extremity equates to five percent of the hand.  
 
            Section 85.34(1) governs the payment of benefits for a 
 
            permanent partial disability to the hand.  That section 
 
            provides:
 
            
 
                 For the loss of a hand, weekly compensation during 
 
                 one hundred ninety weeks.
 
            
 
                 Under section 85.34(l), claimant is entitled to 9.5 
 
            weeks of benefits at the stipulated rate of $178.56 
 
            commencing on July 1, 1988.
 
            
 
                 Another issue before this deputy is whether claimant is 
 
            entitled to permanent partial disability benefits for a left 
 
            gamekeeper's thumb.  Mr. Mirbegian described a gamekeeper's 
 
            thumb as follows:
 
            
 
                 Q  You've characterized that procedure as a left 
 
                 thumb ligament reconstruction; and as I understand 
 
                 the records, Doctor, we're talking about the ulnar 
 
                 collateral ligament.  Is that correct?
 
            
 
                 A  Yes.
 
            
 
                 Q  And also talking about volar capsule.  V O L A 
 
                 R capsule.  Right?  Is that correct, Doctor?
 
            
 
                 A  Yes.
 
            
 
                 Q  What is the function of the ulnar collateral 
 
                 ligament of the thumb?
 
            
 
                 A  It keeps the thumb in place.  The joint that is 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 -- This the ligaments that are attached to keep 
 
                 the joint in place so if the thumb is stretched 
 
                 that joint is stretching and stays in place.
 
            
 
                 Q  What is the importance of the function of the 
 
                 thumb to the function of the hand?
 
            
 
                 A  Well, if you have weak -- weak thumb, you have 
 
                 weak grasp or weak pinch.
 
            
 
                 Q  Was that the difficulty that Mr. Wilkins 
 
                 experienced in -- because of the stretching of the 
 
                 ulnar collateral ligament?
 
            
 
                 A  Yes, he was -- His ligament was stretched, and 
 
                 he was having hard time -- hard time to use his 
 
                 full strength.
 
            
 
                 Q  Gripping things?
 
            
 
                 A  Gripping things and pinching.
 
            
 
                 Q  Okay.  And what is the function of the volar 
 
                 capsule, Sir?  Particularly at the P I P joint 
 
                 level?
 
            
 
                 A  Yes, it's almost same as the collateral 
 
                 ligament, once the one is stretched, the other one 
 
                 actually -- they're almost attached together and 
 
                 you dissect you almost have hard time telling 
 
                 which one is which.
 
            
 
                 Q  There is reference in your records, Doctor, to 
 
                 what is termed gamekeeper's thumb?
 
            
 
                 A  Yes.
 
            
 
                 Q  Is that a common name for the combination of 
 
                 stretching of the ulnar collateral ligament and 
 
                 the volar capsule?
 
            
 
                 A  Yes.
 
            
 
                 Q  Now how did it get that name, in case there's 
 
                 anyone who's curious?
 
            
 
                 A  I didn't invent that name.
 
            
 
                 Q  I'm sure not.
 
            
 
                 A  That's -- I guess it goes back to sometimes in 
 
                 England they used to go for rabbit hunting or some 
 
                 kind of bird hunting, they used to pull the 
 
                 rabbit's head out.  And people who used to do 
 
                 those things, they usually started getting problem 
 
                 with their thumb because they have to hold the 
 
                 rabbit's head in one hand and rabbit's body in the 
 
                 other hand, and they snapped the rabbit's neck.  
 
                 That snapping stretched the thumb of that person 
 
                 who was doing it, and that's what the name came 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 from.
 
            
 
                 Q  And the -- Is the impairment or difficulty that 
 
                 you spoke of -- a weakened grip -- common in all 
 
                 gamekeeper's thumb cases?
 
            
 
                 A  Yes, they have a weak -- weak grasp.  Their 
 
                 grip is weak.
 
            
 
                 Q  And in the surgical reconstruction, what is it 
 
                 you attempt to do?
 
            
 
                 A  You try to strengthen that stretched ligament 
 
                 by artificial tissue or the tissue available 
 
                 around the thumb or using one of the tendons that 
 
                 is passing by.
 
            
 
                 Q  So you augment the tendon itself by surgically 
 
                 incorporating other tissue as opposed to 
 
                 shortening the tendon?
 
            
 
                 A  Yes.  You are augmentation.  You cannot do any 
 
                 shortening because the tissue that it is stretched 
 
                 is very short to begin with.
 
            
 
            (Deposition V, pages 6-8, lines 4-22)
 
            
 
                 Surgery was performed on October 12, 1988.  Claimant's 
 
            thumb was augmented for the purpose of improving claimant's 
 
            grasp.  Claimant testified the reconstruction of his left 
 
            thumb involved surgical procedures into the left wrist and 
 
            arm.  He testified he had stiffness in his hand postsurgery.  
 
            Claimant also testified his grip strength was worse 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            subsequent to his surgery.
 
            
 
                 In his deposition, Dr. Mirbegian testified that he 
 
            originally rated claimant as having a 14 percent impairment 
 
            to the left upper extremity.  Later, pursuant to a request 
 
            from defendant's attorney, the physician calculated the 
 
            impairment to be 37 percent of the thumb (Ex. V, p. 14).
 
            
 
                 Dr. Mirbegian opined in written questions propounded to 
 
            him (Ex. L-5) that:
 
            
 
                 QUESTION NUMBER 3:  With respect to the 14% 
 
                 permanent partial impairment rating to the left 
 
                 upper extremity, is it true that the situs of the 
 
                 actual disability and impairment does not extend 
 
                 beyond Mr. Wilkins' left thumb?
 
            
 
                 ANSWER NUMBER 3:  Yes
 
            
 
                 Also, Dr. Mirbegian testified that if a thumb is 
 
            impaired, a hand is impaired (Ex. V, p. 14, ll. 5-7).
 
            
 
                 It is the determination of this deputy that claimant's 
 
            left gamekeeper's thumb is an injury to the thumb and not an 
 
            injury to the hand.  While the thumb contributes to normal 
 
            hand use, vis a vis grasping, the thumb is separate and 
 
            distinct from the hand.  The hand is usable, albeit not 
 
            normal, without the benefit of the thumb.  The medical 
 
            evidence supports the injury as an injury to the thumb 
 
            rather than to the hand.  Dr. Mirbegian's written response 
 
            to question three above is uncontroverted.  Claimant 
 
            testified his grasp was weakened, however, the purpose of 
 
            the thumb is to assist with grasping.  Claimant's testimony 
 
            is entirely consistent with Dr. Mirbegian's opinion that 
 
            claimant's impairment does not extend beyond the thumb.  See 
 
            Strohmeyer v. Dubuque Packing Co., III Iowa Indus. Comm'r 
 
            Rep. 244 (1982).
 
            
 
                 Section 84.35(a) governs the loss of a thumb.  That 
 
            section reads:
 
            
 
                 a)  For the loss of a thumb, weekly compensation 
 
                 during sixty weeks.
 
            
 
                 The uncontroverted medical testimony equates claimant's 
 
            permanent partial impairment to a 38 percent loss.  Using 
 
            section 84.35(a), claimant is entitled to 22.8 weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of $189.58 per week commencing on December 1, 1989.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to benefits pursuant to section 85.64.
 
            
 
                 Before the Second Injury Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  See Allen v. 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Second Injury Fund, Thirty-fourth Biennial Report of the 
 
            Iowa Industrial Commissioner 15 (1980); Ross v. Servicemas
 
            ter-Story Co., Thirty-fourth Biennial Report of the Iowa 
 
            Industrial Commissioner 273 (1979).  The Act exists to 
 
            encourage the hiring of handicapped persons by making the 
 
            current employer responsible only for the amount of 
 
            disability related to an injury occurring under his employ 
 
            as if there were no preexisting disability.  See Anderson v. 
 
            Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer 
 
            and Higgs, Iowa Workers' Compensation - Law and Practice, 
 
            section 17-1.
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 There is no issue whatsoever as to whether claimant 
 
            suffered a first injury to the right hand.  The 
 
            determinative question in the instant case is whether 
 
            claimant's injury to the left gamekeeper's thumb resulted in 
 
            the loss or loss of use of "another such member or organ."  
 
            This language refers back to the following, and only the 
 
            following specific scheduled members:  hand, arm, foot, leg 
 
            or eye.
 
            
 
                 In Simmons v. Black Clawson Hydrotile, Thirty-fourth 
 
            Biennial Report of the Iowa Industrial Commissioner, 313 
 
            (App. Decn. 1979), the industrial commissioner addressed the 
 
            issue of whether one of claimant's injuries was to the hand 
 
            when the situs of the injury and the subsequent surgeries 
 
            were confined to the fingers.  In that case, the 
 
            commissioner found that claimant's disability extended into 
 
            the hand when it was shown that the flexion of the MP or 
 
            knuckle joints (metacarpal-phalangeal) was reduced.  Since 
 
            claimant's motion in the right hand had been impaired as the 
 
            result of the injury, the commissioner found the Fund 
 
            liable.  In the intervening years, any number of cases have 
 
            found that the second injury must be to one of the specified 
 
            scheduled members set forth in Iowa Code section 85.64.  
 
            See, for example, Stanek v. Iowa Pork Industries, File 
 
            number 800365, (Arbitration Decision filed July 28, 1988) 
 
            ("Had the legislature intended the Second Injury Fund Act to 
 
            be triggered by the loss of the thumb or another digit, it 
 
            would have so stated.").
 
            
 
                 An analysis of the medical documentation relevant to 
 
            this case reveals that claimant's loss of grip affects his 
 
            left thumb.  Dr. Mirbegian wrote that the injury does not 
 
            extend beyond the situs of the thumb.  It is acknowledged 
 
            that the physician is not competent to make a legal 
 
            determination as to whether the injury extends into the 
 
            hand.  However, it is interesting to note that Dr. Mirbegian 
 
            characterized the injury as an injury to the thumb rather 
 
            than an injury to the hand.
 
            
 
                 Given the foregoing, it is held that claimant's left 
 
            gamekeeper's thumb is an injury to the thumb and not to the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            hand.  Because the thumb does not constitute "another such 
 
            member" as contemplated in Iowa Code section 85.64, there is 
 
            no Second Injury Fund liability resulting from the injury.  
 
            (See Gilbert v, Second Injury Fund of the State of Iowa, 
 
            File number 826659 (Arb. Decn. September 29, 1989.)
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant-employer is to pay permanent partial 
 
            disability benefits for the injuries incurred on March 10, 
 
            1988 from July 1, 1988 for a period of nine point five (9.5) 
 
            weeks at the stipulated rate of one hundred seventy-eight 
 
            and 56/l00 dollars ($178.56) per week.
 
            
 
                 Defendant-employer is to pay permanent partial 
 
            disability benefits for the injuries incurred on August 22, 
 
            1988, commencing from December 1, 1989 for a period of 
 
            twenty-two point eight (22.8) weeks at the stipulated rate 
 
            of one hundred eighty-nine and 58/l00 ($189.58) per week.
 
            
 
                 Defendant-employer shall receive credit for all 
 
            benefits paid and not previously credited.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant-employer shall file a claim activity report 
 
            as requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids  IA  52401
 
            
 
            Ms. Marie L. Welsh
 
            Attorney at Law
 
            P O Box 515
 
            Dept. #41
 
            Dakota City  NE  68731
 
            
 
            Ms. Shirley Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
N. GAIL SMITH,     
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 890731
 
PIRELLI-ARMSTRONG, 
 
                                      O R D E R   N U N C
 
     Employer, 
 
                                        P R O   T U N C
 
and       
 
          
 
TRAVELERS INSURANCE CO.,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________ 
 
On the 22nd day of May 1995 an arbitration decision was entered in this 
 
proceeding.  An application for rehearing was filed and an order 
 
granting rehearing was entered.  The parties have subsequently jointly 
 
moved for entry of an order nunc pro tunc which corrects an error found 
 
in the original arbitration decision.
 
 
 
As established by the joint motion claimant was singe and entitled to 
 
only one exemption at the time of the injury.  Accordingly, the rate of 
 
compensation in the arbitration decision should be $344.82 per week 
 
rather than $382.57 per week.  The arbitration decision should 
 
therefore be amended.
 
 
 
It is therefore ordered, nunc pro tunc, that the last sentence in the 
 
last paragraph of the conclusions of law found at page 4 of the 
 
arbitration decision is amended to read as follows:
 
 
 
Claimant's weekly earnings round to $630 per week, with claimant being 
 
single and being entitled to one exemption the rate of compensation is 
 
therefore $344.82 per week.
 
 
 
It is further ordered, nunc pro tunc, that the first paragraph of the 
 
order found on page 4 of the arbitration decision is amended to read as 
 
follows:
 
     
 
It is therefore ordered that defendants pay N. Gail Smith one hundred 
 
seventy (175) weeks of compensation for permanent partial disability at 
 
the rate of three hundred forty-four and 82/100 dollars ($344.82) per 
 
week payable commencing March 20, 1990.  All past due accrued amounts 
 
shall be paid in a lump sum together with interest computed from the 
 
day each payment came due until the date of actual payment at the rate 
 
of ten (10) percent per annum pursuant to section 85.30.  
 
 
 
It is further ordered, nunc pro tunc, that the second paragraph of the 
 
order which is found at the top of page 5 of the arbitration decision 
 
is stricken.
 
 
 
It is further ordered that in all other respects the arbitration 
 
decision is hereby ratified and confirmed.  
 
It is further ordered that in view of this order being entered the 
 
hearing scheduled for July 12, 1995 is cancelled.
 
Signed and filed this __________ day of July, 1995.
 
                              ______________________________
 
                              MICHAEL G. TRIER
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Copies to:
 
 
 
Mr. Robert Pratt
 
Attorney at Law
 
6959 University Ave.
 
Des Moines, Iowa  50311-1540
 
 
 
Mr. Steven M. Nadel
 
Attorney at Law
 
100 Court Ave STE 600
 
Des Moines, IA  50309
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JOANN REIMERS,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 890718
 
         SCHALLER TELEPHONE COMPANY,   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         NATIONAL FARMERS UNION        :
 
         PROPERTY AND CASUALTY         :
 
         COMPANIES,                    :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Joann Reimers, against her employer, Schaller Telephone 
 
         Company, and its insurance carrier, National Farmers Union 
 
         Property and Casualty Company, defendants.  The case was heard on 
 
         April 23, 1991, in Fort Dodge, Iowa at the Webster County 
 
         Courthouse.  The record consists of the testimony of claimant and 
 
         the testimonies of Marlys Krose, bookkeeper; Julie Turner; and, 
 
         Kenda Jochimsen, vocational rehabilitation counselor.  
 
         Additionally, the record consists of claimant's exhibits 1-5 and 
 
         defendants' exhibits A-P.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether there was an 
 
         employer-employee relationship between claimant and employer; 2) 
 
         whether claimant received an injury which arose out of and in the 
 
         course of her employment; 3) whether there is a causal relation
 
         ship between the alleged injury and the disability; 4) whether 
 
         claimant is entitled to temporary disability/healing period bene
 
         fits or permanent partial disability benefits; and, 5) whether 
 
         claimant is entitled to certain medical benefits under section 
 
         85.27.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is married to Steve Reimers, the manager of 
 
         Schaller Telephone, Schaller Telemarketing and Com-Serve.  Glen 
 
         Reimers, claimant's father-in-law, owns Schaller Telephone - 
 
         Schaller Telemarketing and Com-Serve.  He is the person duly 
 
         authorized to sign checks for all three business entities.
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Claimant had experienced prior back problems in 1983 and 
 
         1985.  She was hired in 1984, ostensibly for Schaller Telephone 
 
         Company.  Her duties included performing secretarial duties and 
 
         bookkeeping.  It is unclear to the undersigned what the actual 
 
         relationship was between Schaller Telephone Company, Schaller 
 
         Telemarketing and Com-Serve.  Marlys Krose, bookkeeper for 
 
         Schaller Telephone, described the three entities as 
 
         "subsidiaries."  It is apparent to the undersigned that claimant 
 
         was paid on checks drawn upon the account of Schaller Telephone 
 
         Company, no matter for which entity she provided services.  
 
         Employees who performed services were paid by Schaller Telephone 
 
         Company and if the services were performed for Schaller 
 
         Telemarketing or Com-Serve, then their services were charged to 
 
         Schaller Telemarketing or Com-Serve and Schaller Telemarketing 
 
         and Com-Serve "paid back" Schaller Telephone.  All employees 
 
         completed their own time sheets and they were approved by Glen 
 
         Reimers, prior to the issuing of Schaller Telephone payroll 
 
         checks.  According to Ms. Krose, there were times when claimant 
 
         was employed by Schaller Telephone.
 
         
 
              Claimant and her neighbor, Julie Turner, were contacted by 
 
         Steve Reimers to design and sew drapes for the building which 
 
         housed Schaller Telemarketing.  The windows were large store 
 
         front ones.  Ms. Turner testified she could not recall the amount 
 
         which she received for her services.  The drapes were made at the 
 
         home of claimant.
 
         
 
              On day one of the project, claimant and Ms. Turner placed 
 
         drapery fabric on two saw horses with plywood stretched between 
 
         the two saw horses.  The women were working side-by-side.  They 
 
         were measuring fabric, pinning it and cutting it to the window 
 
         specifications.  The women were working while bent over the 
 
         plywood.  After about three hours, claimant complained of low 
 
         back pain.  She ceased working on the project and laid down.  
 
         While she later assisted Ms. Turner with the drapes, she never 
 
         again helped with the pinning aspect of the project.
 
         
 
              Claimant sought medical attention for a back condition and 
 
         right leg pain.  She was hospitalized at the Marian Health 
 
         Center.  Quentin Durward, M.D., performed microsurgical diskec
 
         tomies on the right side at L5/S1 and at L4/5.  Dr. Durward 
 
         determined claimant had a massive herniated sequestrated L5/S1 
 
         disk.
 
         
 
              Dr. Durward consulted J. J. Dougherty, M.D., for a second 
 
         opinion.  He too opined that claimant had a herniated disk at 
 
         L4/5 and L5/Sl with a degenerative disk at L5/Sl.
 
         
 
              Claimant was referred to a back clinic which was operated by 
 
         Brian W. Nelson, M.D.  Claimant participated in the rehabilita
 
         tion program.  As of June 28, 1989, Dr. Nelson opined:
 
         
 
              ASSESSMENT:  Right leg pain, probably due to scarring 
 
              around the nerve root from previous surgery.  Patient 
 
              also could have had a re-herniation of her disk.
 
         
 
              RECOMMENDATION:  1) I don't think any more rehab would 
 
              be effective for this patient and I think she has maxi
 
              mized what she can do through that route.  I think that 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              if her leg continues to deteriorate that she is going 
 
              to have to seriously consider re-exploration of the 
 
              disk spaces and possible exploration of the nerve root 
 
              for excessive scar tissue....
 
         
 
         (Exhibit 3, page 6)
 
         
 
              Postoperatively claimant experienced low back pain and 
 
         numbness in the right leg.  Gradually, claimant's symptoms 
 
         worsened.  She experienced pain with prolonged sitting.  
 
         Subsequently, another myelogram was performed.  Dr. Durward 
 
         diagnosed claimant's condition as:
 
         
 
              It does appear as though right sciatica is now due to 
 
              spinal arachnoiditis.  We are going to start treating 
 
              her with Pamelor in an attempt to reduce the amount of 
 
              neurogenic pain she has.  I will see her back in clinic 
 
              in 6 weeks time.  If that fails to give her satisfac
 
              tory relief, we may try specific L5 and Sl blocks.
 
         
 
         (Ex. 2, p. 19)
 
         
 
              Dr. Durward opined claimant benefited from the Pamelor.  As 
 
         of March 26, 1990, Dr. Durward opined:
 
         
 
              Physical exam demonstrates a very fit well-looking 
 
              woman.  She forward flexed to 80 degrees with excellent 
 
              curve reversal and she extended well.  Straight leg 
 
              raising was unrestricted bilaterally with her sitting, 
 
              although she did get some pulling in the right buttock 
 
              and posterior thigh at 90 degrees on the right side.  
 
              Her power exam is normal.  Her reflex exam shows a 1+ 
 
              left knee reflex, trace right knee reflex, absent right 
 
              ankle reflex, 1+ left ankle reflex.  Pin examination 
 
              shows blunting of pin in the outer right calf.
 
         
 
              She has a very stable neurological exam.  She still has 
 
              some residual radicular pain complaints and the resid
 
              ual deficit as noted.  My review of the current dis
 
              ability and impairment systems has revealed that 
 
              according to the American Orthopedic Academy Guide to 
 
              the Rating of Permanent Impairment, she qualifies for a 
 
              20% disability.  I think this is more than the 10% I 
 
              had previously given her but it reflects the fact that 
 
              she has ongoing intermittent pain and persistent numb
 
              ness.
 
         
 
              The other problem she has is the question of getting 
 
              back to work.  I would think that she probably could 
 
              get back to her job at least starting 2 hrs per day 
 
              with avoiding bending, no lifting more than 5 lbs., and 
 
              a job where she can intermittently sit and stand as her 
 
              symptoms warrant.
 
         
 
              We are going to taper her off the Pamelor.  Hopefully 
 
              she is not going to get a recurrence of the severe 
 
              aching pain that she had before going on the Pamelor.  
 
              If she does I think we will just restart it.
 
         
 
         (Exhibit 2, page 22)
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              Later, Dr. Durward treated claimant with a TENS unit and 
 
         some root blocks.
 
         
 
              Defendants sent claimant to Joel T. Cotton, M.D., a neurolo
 
         gist.  Dr. Cotton examined claimant on March 8, 1991.  He opined 
 
         claimant's condition was compatible with a residual right first 
 
         sacral nerve root involvement (Ex. P., p. 9, lines 8-9).  Dr. 
 
         Cotton did not causally relate claimant's condition to the 
 
         alleged work injury (Ex. P., p. 14, ll. 22-24).  Dr. Cotton 
 
         opined claimant had a 12 percent functional impairment and that 
 
         eight percent of the impairment preexisted the incident in ques
 
         tion.  Dr. Cotton testified that her condition in 1991 was basi
 
         cally the same condition as claimant had back in 1983 and 1985.
 
         
 
              In his report of March 11, 1991, Dr. Cotton wrote in rele
 
         vant portion:
 
         
 
                 Neurological examination reveals an alert, attentive 
 
              38 year old woman who appears to be in no acute dis
 
              tress.  Station and gait are normal.  She walks well on 
 
              her heels and toes and tandem.  Rapid alternating move
 
              ments are done well in all extremities.  Cerebellar 
 
              testing is normal.  Romberg's position is maintained 
 
              without drift of the outstretched arms with the eyes 
 
              closed.  Examination of the cranial nerves demonstrates 
 
              no abnormalities and ophthalmoscopic examination is 
 
              normal.  There is normal muscular strength in her arms.  
 
              There is normal strength in the legs proximally and 
 
              distally.  She can support her entire weight on the 
 
              ball of either foot independently.  She has no weakness 
 
              of the extensor hallicus longus.  She can rise from a 
 
              full squat easily.  There is diminished sensation over 
 
              the right foot more pronounced laterally than medially.  
 
              Sensation in the left foot and in the arms is normal.  
 
              Muscle stretch reflexes are present and bilaterally 
 
              symmetric in the upper extremities.  Knee jerks are 
 
              diminished bilaterally but are present and symmetrical.  
 
              The right ankle jerk is absent compared to the left 
 
              which is present.  Straight leg raising can be done to 
 
              90 degrees bilaterally in the seated position with no 
 
              apparent complaint of pain.  It is positive at 75 to 90 
 
              degrees on the right with the patient lying supine.  
 
              There is unrestricted movement of the hips unaccompa
 
              nied by appreciable subjective discomfort.  There is 
 
              good lateral bending and extension of the back.  She 
 
              stoops over to reach within 16 to 18 inches of the 
 
              ground with her extended fingertips.  There is a 1 cm. 
 
              difference in the circumference of the calves measured 
 
              12 cm. distal to the tibial plateau (right calf smaller 
 
              than left).
 
         
 
                 Clinical Impression:  This patient's neurological 
 
              examination is normal except for an absent right ankle 
 
              jerk, diminished sensation over the right lateral foot, 
 
              as well as slight asymmetry in the calf circumference 
 
              on the right leg compared to the left.  This is compat
 
              ible with a residual right first sacral radiculopathy.  
 
              She has reached maximum medical benefit.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         (Ex. P, Ex. l, p. 2)
 
         
 
              While claimant was released to return to work for two hours 
 
         per day as a clerical worker, claimant only returned to work on 
 
         an infrequent and intermittent basis.  Mostly claimant organized 
 
         a telephone museum and performed various errands for Schaller 
 
         Telephone.  Claimant contacted the Department of Vocational 
 
         Rehabilitation and participated for a period of time with Kenda 
 
         Jochimsen, a counselor.  At the time of the hearing, claimant was 
 
         not regularly employed.
 
         
 
                                conclusions of law
 
         
 
              The first issue to address is whether claimant was an 
 
         employee of defendant Schaller Telephone on the day of the 
 
         alleged work injury.  Claimant was always paid by Schaller 
 
         Telephone.  She was compensated by checks from Schaller Telephone 
 
         for all of the services she performed for Schaller Telephone, 
 
         Schaller Telemarketing, or Com-Serve.  Glen Reimers, owner of 
 
         Schaller Telephone, authorized checks written to claimant.  He 
 
         approved all time sheets.  It is the determination of this deputy 
 
         that claimant was an employee of Schaller Telephone on March 2, 
 
         1988.
 
         
 
              The next issue to address is whether claimant's alleged 
 
         injury arose out of and in the course of her employment.
 
         
 
              Claimant performed services pursuant to the request of the 
 
         business manager, Steve Reimers.  Claimant was authorized to work 
 
         in her home.  She designed drapes for the benefit of 
 
         defendant-employer.  She was to be compensated for her services.  
 
         She sustained an injury to her back while she bent over the 
 
         make-shift sewing table.  The injury arose out of and in the 
 
         course of her employment.
 
         
 
              The next issue to discuss is whether claimant's condition is 
 
         causally related to the work injury of March 2, 1988.
 
         
 
              J. J. Dougherty, M.D., provided a second opinion pursuant to 
 
         a request from Dr. Durward.  Dr. Dougherty did not causally con
 
         nect claimant's condition to the sewing incident.
 
         
 
              As of April 11, 1989, the treating physician, Dr. Durward 
 
         wrote:
 
         
 
              Mrs. Joann Reimers had two ruptured discs.  It appears 
 
              that this rupture was not directly related to her 
 
              employment although, of course, jobs involving a lot of 
 
              bending and lifting frequently add to the degenerative 
 
              disease.  I do not believe that failure to do exercise 
 
              or obesity are specifically causes of this ladies 
 
              degenerative disc disease.  Mrs. Reimers may have fur
 
              ther injured her back while she was pinning curtains on 
 
              March 2, 1988.  Mrs. Reimers can undertake an occupa
 
              tion which avoids lifting more than 25 pounds and 
 
              avoids bending and twisting.  This is my opinion that 
 
              she has permanent partial impairment rating of 10% and 
 
              this has been so since her operation.  She did not have 
 
              a permanent partial impairment rating of 10% prior to 
 
              March 2, 1988.
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         (Ex. 2, p. 17)
 
         
 
              Dr. Durward's opinion is ambiguous, at best.  This deputy is 
 
         unable to determine whether Dr. Durward causally relates 
 
         claimant's condition to the March 2, 1988 work injury, or whether 
 
         he opines that the work injury is unrelated to claimant's condi
 
         tion.  Exhibit 2, page 17 is troublesome.  The physician's report 
 
         is unclear especially when it is coupled with Exhibit 2, page 10.  
 
         In that report, Dr. Durward writes:
 
         
 
              CLINICAL SUMMARY:
 
         Mr. [sic] Reimer [sic] is a 35-year-old woman who pre
 
         sented with a progressive onset of severe right sciat
 
         ica.  She doesn't remember specific precipitating 
 
         events, but more recently the pain had become excruci
 
         ating.  Previously, several years ago, she had had an 
 
         episode of back pain and possible left sciatica from 
 
         which she made an excellent recovery with conservative 
 
         measures.  Dr. Rod Miller had treated Mrs. Reimers with 
 
         some excellent conservative measures, but they had all 
 
         failed to give her relief.
 
         
 
              Finally, there is the opinion of the doctor retained by 
 
         defendants to examine claimant.  Dr. Cotton expressly denies 
 
         there is a causal relationship between the alleged injury and 
 
         claimant's condition.  Dr. Cotton had testified that the work 
 
         injury did not accelerate or aggravate claimant's preexisting low 
 
         back condition.  Furthermore, Dr. Cotton testified that 
 
         claimant's current condition is basically identical to her condi
 
         tion in 1983 and 1985.  None of Dr. Cotton's testimony supports 
 
         claimant's allegation that her work injury was causally related 
 
         to her condition.
 
         
 
              A clear case of causal connection has not been established 
 
         by claimant's treating physician.  The evidence does not support 
 
         the requisite causal connection.  At best, the treating physician 
 
         is confusing.
 
         
 
              Claimant has not met her burden of proof relative to the 
 
         element of causal connection.  Therefore, claimant takes nothing 
 
         further from these proceedings.
 
         
 
                                      order
 
         
 
              IT IS ORDERED:
 
         
 
              Claimant takes nothing further from these proceedings.
 
         
 
              Each party shall pay its own costs pursuant to rule 343 IAC 
 
         4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of October, 1991.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Colin J. McCullough
 
         Mr. David P. Jennett
 
         Attorneys at Law
 
         701 W Main St
 
         Sac City  IA  50583
 
         
 
         Mr. Robert B. Deck
 
         Attorney at Law
 
         225 Frances Bldg
 
         Sioux City  IA  51101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108
 
                           Filed October 22, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOANN REIMERS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 890718
 
            SCHALLER TELEPHONE COMPANY,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL FARMERS UNION        :
 
            PROPERTY AND CASUALTY         :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1108
 
            Claimant was unable to establish the requisite causal 
 
            connection.  Even the treating opinion relative to the issue 
 
            of causal connection was confusing at best.  Claimant did 
 
            not meet her burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT R. BEAMER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 890720
 
            A-1 READY MIX, INC.,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            R. Beamer against A-1 Ready Mix, Inc., his former employer, 
 
            and Aetna Casualty & Surety Company, the employer's 
 
            insurance carrier, based upon an injury that occurred on 
 
            October 27, 1985.  The issue to be determined is the extent 
 
            of permanent disability which resulted from that injury.
 
            
 
                 The case was heard at Des Moines, Iowa on April 23, 
 
            1990.  The record consists of testimony from Marian Jacobs, 
 
            Kitty Beamer, Robert Beamer, Jan Hardcopf-Bickley, joint 
 
            exhibits 1 through 16 and defendants' exhibit A.
 
            
 
                                 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.
 
            
 
                 Robert R. Beamer is a 47-year-old man who currently 
 
            lives at Route 3, Jacksonville, Texas with his wife, Kitty.  
 
            Robert has a GED.  Robert's work history consists primarily 
 
            of mechanical work and truck driving.  He has supervised as 
 
            many as three mechanics.  Claimant worked for A-1 Ready Mix 
 
            Company from 1977 until the 1985 injury.  His work involved 
 
            long hours, sometimes seven days per week.  His wife 
 
            described him as a workaholic.  At the present time, he 
 
            lives on a 12-acre tract of land, of which one acre is used 
 
            as a garden to grow vegetables and melons for family 
 
            consumption.  Most of the land is untilled.  Claimant raises 
 
            no livestock.  Claimant does have a tractor with a specially 
 
            designed seat which he sometimes operates.  He explained 
 
            that his endurance for driving the tractor is approximately 
 
            30 minutes.  Claimant has modified his pickup and farm 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            equipment in order to make it more readily operable for him.  
 
            He explained that the task took much longer for him to 
 
            perform than what would be required for a healthy mechanic.
 
            
 
                 Robert Beamer has three significant medical conditions.  
 
            In 1982, his right leg was amputated above the knee due to 
 
            osteomyelitis and pain which probably resulted from a 1970 
 
            motorcycle accident.  Claimant also has chronic obstructive 
 
            pulmonary disease which was diagnosed at least as early as 
 
            1981.  He suffers recurrent pneumonia and uses a nebulizer 
 
            twice daily as a result of the pulmonary condition.  He has 
 
            not, however, ceased smoking.
 
            
 
                 Claimant's back difficulties began with an injury that 
 
            occurred while working for this employer in 1984.  Claimant 
 
            underwent a lumbar laminectomy at the L4-5 level of his 
 
            spine, the surgery being performed by Marvin H. Dubansky, 
 
            M.D., a Des Moines, Iowa orthopaedic surgeon.  Claimant 
 
            returned to light work less than two months following that 
 
            1985 surgery.  On June 10, 1985, he fell while on the job 
 
            and fractured his left hand (exhibit 2, page 7).  Dr. 
 
            Dubansky agreed that claimant recovered satisfactorily from 
 
            the surgery and was working well until he fell on October 
 
            27, 1985 (exhibit 3, page 5).
 
            
 
                 On October 27, 1985, claimant was walking in the 
 
            employer's shop while in the process of installing fenders 
 
            on a truck.  He slipped on a piece of cardboard and fell, 
 
            landing in a seated position.  Claimant again sought 
 
            treatment from Dr. Dubansky and was diagnosed as having a 
 
            fracture of the seventh thoracic vertebra.  He was 
 
            hospitalized and also developed pain in his low back and 
 
            legs.  After conservative treatment and an unsuccessful 
 
            attempt to resume employment, claimant underwent a second 
 
            low back surgery on June 13, 1986.  Dr. Dubansky expressed 
 
            the opinion that both the fracture of the seventh thoracic 
 
            vertebra and the June, 1986 surgery were necessitated by the 
 
            fall which claimant sustained on October 27, 1985 (exhibit 
 
            3, page 4).  Dr. Dubansky found that claimant's L4-5 disc 
 
            was bulging (exhibit 12, page 18).  John T. Bakody, M.D., 
 
            had previously diagnosed the bulging from a CT scan (exhibit 
 
            10, pages 1 and 2).  Dr. Dubansky reported that "if patient 
 
            fell hard enough to sustain a new fractures [sic] of T-7 the 
 
            stirring up or possibility of doing the same at the 
 
            lumbosacral area is probably quite good."  (Exhibit 12, page 
 
            13)
 
            
 
                 Claimant has not since returned to work.  He 
 
            experiences ongoing pain in his low back and difficulty with 
 
            his legs.  Wearing his prosthetic device on his right leg 
 
            aggravates his back so much that he uses a wheelchair most 
 
            of the time.  Claimant stated that his ability to sit at any 
 
            one time is limited to approximately two hours.  He stated 
 
            that he can walk with crutches for approximately 150 feet.  
 
            He felt that he would be unable to lift 50 pounds or to even 
 
            lift 10 pounds repetitively.  At times, claimant's remaining 
 
            leg buckles causing him to fall.  Claimant has undergone 
 
            treatment at a pain center in Texas without obtaining any 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            significant relief (exhibit 2, pages 12-15).
 
            
 
                 Claimant described his normal day of consisting 
 
            primarily of going to the barn and piddling around.  He 
 
            stated that he lies down for rest periods whenever he feels 
 
            the need.
 
            
 
                 Claimant testified that he has not sought work because 
 
            he knows of no job which he would be capable of performing.  
 
            He did, shortly before hearing, go to a job placement center 
 
            near his current residence where he was told that there was 
 
            no work available.  Claimant did seek employment from 
 
            defense counsel, but none was offered.  Claimant stated that 
 
            he would be employed if he were capable of working.
 
            
 
                 The description of claimant's current physical 
 
            complaints and problems as related by himself and by his 
 
            wife, Kitty Beamer, are accepted as being correct.  They are 
 
            both found to be fully credible.
 
            
 
                 Claimant has sought continuing medical care from a 
 
            number of sources.  Claimant has declined to undergo further 
 
            surgery.  Dr. Dubansky, whose assessment of this case is 
 
            accepted as being correct due to his status as an 
 
            experienced orthopaedic surgeon and the primary treating 
 
            surgeon, has stated that claimant has chronic postoperative 
 
            laminectomy syndrome.  He doubts that further treatment will 
 
            provide any improvement.  Dr. Dubansky also stated that 
 
            claimant currently has a 25 percent permanent impairment of 
 
            the whole body due to his back condition.  He stated that 10 
 
            percent is due to the compression fracture of the T-7 
 
            vertebra, 5 percent is from the first lumbar surgery, and 10 
 
            percent is from the second lumbar surgery (exhibit 3, pages 
 
            2 and 3).  Dr. Dubansky felt that claimant might be able to 
 
            work installing hand controls in vehicles (exhibit 1, page 
 
            3).
 
            
 
                 Claimant was also evaluated by Scott B. Neff, D.O.  Dr. 
 
            Neff expressed the opinion that claimant's right lower 
 
            extremity, low back problems and lung problems are unrelated 
 
            to his fall at work and that the low back condition is a 
 
            result of his prior surgery and additional wear resulting 
 
            from walking with the amputation.  Dr. Neff stated that 
 
            claimant has a five percent permanent impairment to the body 
 
            from his lumbar spine and this work injury.  He stated that 
 
            the severe impairment was from the prior low back surgery 
 
            and amputation.  Dr. Neff did not have available x-rays of 
 
            claimant's thoracic spine and provided no impairment rating 
 
            for the thoracic vertebra fracture (exhibit 4, page 3).  Dr. 
 
            Neff also recommended that claimant be evaluated by M. 
 
            Joseph Shepard, M.D., a Tyler, Texas orthopaedic surgeon 
 
            (exhibit 4, page 4).  Dr. Shepard evaluated claimant and in 
 
            his report stated that he did not know if claimant could be 
 
            rehabilitated (exhibit 1, page 1).  Guy O. Danielson, III, 
 
            M.D., a Tyler, Texas neurosurgeon, reported that further 
 
            surgery would not be likely to help claimant (exhibit 5, 
 
            page 1).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has been evaluated by two vocational 
 
            consultants:  Marian Jacobs from Des Moines, Iowa and Jan 
 
            Hardcopf-Bickley from Omaha, Nebraska, who has previously 
 
            resided in the Tyler, Texas area.  Both consultants 
 
            generally agreed that claimant's current physical 
 
            restrictions include no heavy work, no prolonged standing or 
 
            sitting and no repeated lifting or bending (exhibit 13, page 
 
            2).  Jacobs expressed the opinion that there are some jobs 
 
            which exist in the competitive work force which Robert 
 
            Beamer could perform with his disability, but that in view 
 
            of his inability to ambulate and need to take rests, he 
 
            could not work a normal eight-hour day on a day-after-day 
 
            basis.  She stated that he needed some type of sheltered 
 
            workshop or supported work.  Jacobs stated that many of the 
 
            jobs suggested by consultant Bickley were beyond claimant's 
 
            physical capacities or would require an employer to modify 
 
            vehicles and that it was not realistic to expect an employer 
 
            to do so.  Jacobs felt that claimant's relatively low 
 
            reading and writing skills made a number of Bickley's 
 
            suggested jobs inappropriate.  Jacobs felt that, while 
 
            claimant was capable of performing a number of work 
 
            activities and had skills and expertise, he did not have the 
 
            ability to perform competitive work on a day-in, day-out 
 
            basis.  She explained that the pace of the work is a 
 
            critical factor.  Jacobs stated that the quantity of work 
 
            which claimant could perform is so reduced that no 
 
            reasonably stable market exists for his services.  In 
 
            Jacobs' opinion, claimant's respiratory ailment is not a 
 
            substantial factor in his lack of ability to be employed and 
 
            that her opinion would be the same even if he did not have 
 
            the respiratory ailment.
 
            
 
                 Jan Hardcopf-Bickley felt that some of claimant's 
 
            vocational assessment test scores were invalid.  She 
 
            identified a number of jobs which in her opinion were 
 
            suitable for claimant.  Bickley performed a job search and 
 
            found a number of jobs which she felt were suitable and 
 
            available for claimant (exhibit A).  Bickley stated that she 
 
            has a 98 percent placement rate and that she could find 
 
            employment for claimant in the Des Moines, Iowa area which 
 
            would pay in the range of $6.00 per hour or higher.  Bickley 
 
            made inquiries in the Tyler, Texas area and concluded that 
 
            work was available for claimant in the area of his current 
 
            residence.
 
            
 
                 The evidence presented by Marian Jacobs is found to be 
 
            more reliable and accurate than that provided by Bickley.  
 
            The undersigned finds it to be unlikely that the vast list 
 
            of employers would give preference to hiring claimant over 
 
            current employees who are equally skilled, more familiar 
 
            with the particular business and not disabled.  While 
 
            claimant's skills and expertise are valuable, skills of that 
 
            type are not particularly unique and are held by many 
 
            persons.  The assessment from Jacobs that it is necessary to 
 
            not only be able to perform a work activity, but to also be 
 
            able to perform it at a competitive or commercially feasible 
 
            rate is quite convincing.  The fact that claimant modified 
 
            his own vehicles to adapt them for his handicap does not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            indicate that he has the ability to work at a competitive or 
 
            commercially feasible rate of productivity in order to be 
 
            employable in such an occupation.  According to claimant's 
 
            testimony, which has been found to be credible, he does not 
 
            have the ability to work at a competitive rate of 
 
            productivity.  Claimant certainly has the experience and 
 
            background to know what rate of productivity is required for 
 
            a mechanic in a competitive employment setting.
 
            
 
                 It is determined that Robert Beamer does not have 
 
            sufficient remaining earning capacity to enable him to be 
 
            regularly employed in the competitive labor market.  He does 
 
            not have sufficient residual earning capacity in order to be 
 
            able to earn a living for himself.  He has been awarded 
 
            Social Security disability benefits and his current living 
 
            status is very appropriate for him.  His decision to leave 
 
            Iowa in order to avoid the expense associated with winter 
 
            heating was reasonable.  Claimant's current activities on 
 
            his Texas acreage are in fact simply tinkering around and do 
 
            not constitute any evidence that he is capable of being 
 
            gainfully employed or gainfully self-employed.  He has not 
 
            made a bona fide effort to find a job, but doing so would be 
 
            futile.
 
            
 
                 A large part of claimant's current state of disability 
 
            results from conditions which existed prior to October 27, 
 
            1985 when he fell.  He was capable of performing gainful 
 
            employment with A-1 Ready Mix Company prior to the time of 
 
            that fall.  That fall sufficiently worsened the condition of 
 
            his back that he has not been able to resume employment with 
 
            that employer or any other.  The fall that occurred on 
 
            October 27, 1985 is a substantial factor in producing his 
 
            present state of disability.
 
            
 
                                conclusions of law
 
            
 
                 The fall which claimant suffered on October 27, 1985 is 
 
            established by stipulation and claimant's testimony.  That 
 
            does not, however, establish the extent of disability which 
 
            was produced by that fall.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 27, 
 
            1985 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            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 v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  For a cause to 
 
            be proximate, it must be a substantial factor, but need not 
 
            be the only cause.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  While a claimant is not entitled to 
 
            compensation for the results of a preexisting injury or 
 
            disease, the mere existence at the time of a subsequent 
 
            injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
            247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            aggravated, accelerated, worsened or lighted up so that it 
 
            results in disability, claimant is entitled to recover.  
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812, 815 (1962).
 
            
 
                 Robert Beamer clearly had a preexisting respiratory 
 
            ailment, amputation of his right leg and a prior back 
 
            injury.  Those were all preexisting conditions at the time 
 
            of the October 27, 1985 fall.  Dr. Dubansky expressed the 
 
            opinion that the fall produced not only the thoracic 
 
            vertebra fracture, but also additional injury to claimant's 
 
            low back.  That assessment and claimant's own testimony that 
 
            his low back condition was worse after the fall have been 
 
            found to be accurate and correct.  It is therefore concluded 
 
            that the fall and injuries sustained on October 27, 1985 are 
 
            a proximate cause of the disability which currently afflicts 
 
            Robert Beamer.
 
            
 
                 Since 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            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.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, 34th Biennial Report, 218 (1979); 2 Larson 
 
            Workmen's Compensation Law, sections 57.21 and 57.31.
 
            
 
                 Claimant contends that he is permanently and totally 
 
            disabled.  Assessment of industrial disability involves 
 
            consideration of the various factors previously identified.  
 
            Total disability under compensation law is not to be 
 
            interpreted literally as utter and abject helplessness.  The 
 
            ability to earn some wages is evidence that the person has 
 
            earning capacity commensurate with those earnings.  2 Larson 
 
            Workmen's Compensation Law, section 52.21(d).  The test of 
 
            permanent total disability in workers' compensation has been 
 
            long established.  When the combination of factors 
 
            considered in determining industrial disability precludes 
 
            the worker from obtaining regular employment in which he can 
 
            earn sufficient wages to be self-supporting, his disability 
 
            is total.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
            (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 
 
            192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 
 
            594, 258 N.W. 899, 902 (1935).  Claimant, by his testimony, 
 
            the testimony of Marian Jacobs and the corroborating medical 
 
            evidence, has made a prima facie showing that he is totally 
 
            disabled.  He has not, however, made a bona fide effort to 
 
            seek employment and he therefore is not entitled, under 
 
            existing agency precedent, to be considered "odd-lot" or to 
 
            benefit from the shifting of the burden of proof that occurs 
 
            when a prima facie showing is made under the "odd-lot" 
 
            doctrine.  Collins v. Friendship Village, Inc., file number 
 
            679258 (App. Decn., October 31, 1988); Emshoff v. Petroleum 
 
            Transp. Services, file number 753723 (App. Decn., March 21, 
 
            1987).  Despite the foregoing precedents, it is concluded 
 
            that Robert R. Beamer is permanently totally disabled within 
 
            the meaning of Iowa Code section 85.34(3) and is entitled to 
 
            recover weekly compensation benefits accordingly.
 
            
 
                 Robert Beamer certainly had a very significant level of 
 
            preexisting disability as evidenced by his preexisting 
 
            conditions.  His earning capacity had previously been 
 
            reduced.  As a result of the October 27, 1985 injury, he has 
 
            now lost 100 percent of the earning capacity which had 
 
            previously remained.  Despite this claimant's previously 
 
            reduced earning capacity, his capacity, as it existed 
 
            immediately prior to the October 27, 1985 injury, was in all 
 
            likelihood greater than the earning capacity of some 
 
            individuals who had never sustained any injury or 
 
            disability.  When dealing with industrial disability, rather 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            than scheduled disability, the percentage assessment is 
 
            based upon the earning capacity which existed at the time of 
 
            the injury rather than the earning capacity which might have 
 
            existed at some prior time.  When an injury produces total 
 
            disability, the degree of preexisting permanent partial 
 
            impairment or permanent partial disability is of no 
 
            consequence.  The worker receives benefits for total 
 
            disability because the worker needs to acquire the 
 
            necessities of life.  They are a replacement for the wages 
 
            which the worker is no longer capable of earning.  One of 
 
            the elementary principles of the workers' compensation 
 
            system is to provide benefits when and where they are 
 
            needed.  It would be totally inconsistent with that intent 
 
            and also illogical to deny benefits for some waiting period, 
 
            or to provide benefits at a reduced amount, when the person 
 
            is totally disabled.  It is therefore concluded that, when 
 
            permanent total disability results, there is no 
 
            apportionment for preexisting disability and that benefits 
 
            are payable in the prescribed weekly amount without 
 
            interruption or reduction for whatever disability 
 
            preexisted.  Loftus v. Waterloo Community School Dist., file 
 
            numbers 777678 and 748818 (App. Decn., March 30, 1989).  
 
            Work in a sheltered workshop setting does not preclude a 
 
            finding of permanent total disability.  Warner v. Jensen 
 
            Transp., Inc., file number 702191 (Arb. Decn., March 12, 
 
            1990).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Robert R. 
 
            Beamer compensation for permanent total disability at the 
 
            stipulated rate of four hundred sixty-five and 71/100 
 
            dollars ($475.71) per week payable commencing November 6, 
 
            1986 as stipulated by the parties in the prehearing report.  
 
            Said payments shall continued throughout the remaining 
 
            lifetime of Robert R. Beamer so long as he remains totally 
 
            disabled pursuant to Iowa Code section 85.34(3).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to Division of 
 
            Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. Peter W. Berger
 
            Attorney at Law
 
            1217 Army Post Road
 
            Des Moines, Iowa  50315
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1804, 1806
 
                                               Filed July 30, 1990
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT R. BEAMER,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 890720
 
            A-1 READY MIX, INC.,          :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1804
 
            Forty-seven-year-old claimant with a GED whose work history 
 
            was that of a mechanic and truck driver was found to be 
 
            permanently totally disabled.  Claimant had a prior above 
 
            knee amputation of his right leg, a prior laminectomy and a 
 
            preexisting respiratory ailment.  He then fell, fracturing a 
 
            vertebra and requiring additional surgery at the site of the 
 
            previous laminectomy.  Claimant was thereafter held to be 
 
            permanently totally disabled, despite not making any efforts 
 
            to seek work.
 
            
 
            1806
 
            It was held that no apportionment for preexisting disability 
 
            can be made when the result is permanent total disability.  
 
            It was held that any percentage determination of loss of 
 
            earning capacity is based upon the earning capacity which 
 
            existed at the time of the injury rather than that which 
 
            might have existed at some previous time.