BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RONALD J PFIFFNER,            :
 
                                          :   File Nos. 1034557 1034558
 
                 Claimant,                :              896468 
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            JOHN DEERE DUBUQUE WORKS,     :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ronald 
 
            J. Pfiffner, claimant, as a result of alleged injuries to 
 
            his right hand on March 4, 1991 in file number 1034557; 
 
            alleged injuries to his left hand on April 11, 1991 in file 
 
            number 1034558 and an injury to his low back on September 
 
            22, 1988 in file number 896468.  
 
            
 
                 Claimant appeared in person and was represented by 
 
            Michael Shubatt, Attorney at Law and Michael Coyle, Attorney 
 
            at Law.  Claimant offered further testimony from Barbara 
 
            Pfiffner.  The employer, John Deere Dubuque Works of Deere 
 
            and Company, was represented by Leo McCarthy, Attorney at 
 
            Law and Jennifer Clemens, Attorney at Law.  Testimony was 
 
            received on behalf of the employer from Ronald Stephenson, 
 
            Brent Postel, Ron Postel, and M.L. McClenahan, M.D.  
 
            
 
                 This case was heard and fully submitted at Dubuque, 
 
            Iowa, on June 28, 1994.  The record in the proceedings 
 
            consists of joint exhibits 1 through 16 in the hand cases 
 
            and joint exhibits 1 through 14 in the back case along with 
 
            testimony of the above-referenced witnesses. 
 
            
 
                                      issues
 
            
 
                 The issues presented for determined in file numbers 
 
            1034557 and 1034558 are as follows:
 
            
 
                 .  Whether the injuries arose out of and in the course 
 
            of employment with respect to the dates of March 4, 1991 and 
 
            April 11, 1991;
 
            
 
                 .  Whether there is a causal connection between the 
 
            injury and the temporary total healing period and permanent 
 
            partial disability;
 
            
 
                 .  Whether the employer should be allowed to amend the 
 
            pleading to conform to proof with respect to a bilateral, 
 
            simultaneous injury of the hands;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 .  Whether the hand injury should be compensated under 
 
            Iowa Code section 85.34(2)(s) on a 500-week schedule;
 
            
 
                 .  Whether claimant's refusal to have surgery for the 
 
            hands would impact on the extent of disability;
 
            
 
                 .  Whether claimant is entitled to healing period 
 
            benefits between March 4, 1991 and May 12, 1991;
 
            
 
                 .  Whether the claims are barred by the statute of 
 
            limitations under Iowa Code section 85.26;
 
            
 
                 .  Whether the claims are barred by the notice defense 
 
            under Iowa Code section 85.23;
 
            
 
                 The issue presented for determination in file number 
 
            896468 is as follows:
 
            
 
                 The extent of industrial disability suffered as a 
 
            result of the September 22, 1988, low back injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony of the witnesses and having 
 
            considered all of the evidence in the record, the deputy 
 
            industrial commissioner finds:
 
            
 
                 Ronald Pfiffner began work for Deere and Company in 
 
            October 1965.  Claimant is a high school graduate born 
 
            January 28, 1943.  Claimant is still employed by John Deere 
 
            in Dubuque.
 
            
 
                 Claimant, while employed for Deere and Company, 
 
            performed manual labor work since the start of his career in 
 
            1965.  The manual labor required repetitive use of his hands 
 
            and upper extremities.  As a result claimant incurred an 
 
            injury commonly known as carpal tunnel syndrome.  The first 
 
            clear report of bilateral hand pain occurred in January 
 
            1991.  (exhibit 1, page 3).  Claimant was first taken off 
 
            work as a result of the bilateral hand pain on March 4, 
 
            1991, so that surgery could be performed on the right hand.  
 
            At the time that claimant was first removed from the 
 
            workplace as a result of the cumulative trauma disorder, 
 
            claimant was complaining of a bilateral hand problem.  
 
            Therefore, it is found that the injury date is March 4, 
 
            1991.  That injury date applies to both the right and left 
 
            hands. 
 
            
 
                 The hand injuries were cumulative in nature.  They had 
 
            gradually developed over a period of years according to 
 
            claimant's testimony and the employer's records.  Based upon 
 
            the testimony of claimant and medical records, more 
 
            specifically exhibit 11, it is found that the healing period 
 
            between March 4, 1991 and May 12, 1991, is a direct and 
 
            proximate result of the cumulative trauma injury incurred on 
 
            March 4, 1991.  It is further found that the permanent 
 
            disability expressed in exhibit 11 is causally connected to 
 
            the March 4, 1991 bilateral, cumulative trauma disorder 
 
            based on the medical reports and claimant's testimony.  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 The expert testimony indicates that claimant may have 
 
            improvement in the hand condition if surgery were 
 
            experienced.  Claimant declined surgery due to a fear of a 
 
            bad result.  Furthermore, claimant is eligible for 
 
            retirement in October 1995.  It is also noted that surgery 
 
            would not guarantee improvement but would probably stop the 
 
            deterioration of the condition.  It is found that claimant's 
 
            refusal to have surgery is reasonable under the 
 
            circumstances.  Claimant's fear of a bad result is well 
 
            founded.  There is no guarantee that improvement in the 
 
            condition would be had.  At best, surgery could only 
 
            stabilized his current condition.  Considering claimant is 
 
            very close to retirement, it is understandable that he would 
 
            want to delay surgery as long as possible.  Therefore, 
 
            claimant's refusal to have surgery is reasonable under the 
 
            circumstances.  No reduction in benefits is appropriate.
 
            
 
                 It is further found that claimant's healing period for 
 
            the surgery on the right hand begins on March 4, 1991, and 
 
            extends through May 12, 1991, for a period of ten weeks.
 
            
 
                 It is found that claimant incurred 30 percent permanent 
 
            partial impairment to the right upper extremity and an 
 
            additional 30 percent permanent partial impairment to the 
 
            left upper extremity as evidenced by exhibit 11 in the hand 
 
            case.  This impairment when converted to the body as a whole 
 
            using the Guides to the Evaluation of Permanent Impairment, 
 
            fourth edition, would amount to 18 percent of each upper 
 
            extremity.  When using the combined values charts from the 
 
            Guides it equates to 33 percent of the body as a whole.  
 
            It is found that claimant sustained 33 percent body as a 
 
            whole injury as a result of the March 4, 1991 simultaneous, 
 
            bilateral carpal tunnel syndrome and repetitive trauma 
 
            injury.
 
            
 
                 Claimant incurred a low back injury on September 22, 
 
            1988, when he slipped and fell landing on his back.  
 
            Claimant was wearing an OSHA personal sample pump.  Claimant 
 
            fell backward onto the pump thereby causing injury to his 
 
            low back.  Claimant was at first thought to have had a 
 
            fracture.  However, it was later determined that claimant 
 
            had a significant contusion with muscular pain of unknown 
 
            etiology.  Claimant was directed to stay off work for a 
 
            short period of time and use anti-inflammatory medication 
 
            for the pain.  
 
            
 
                 Claimant did return to work without restriction and has 
 
            continued to work for Deere and Company since the date of 
 
            injury.
 
            
 
                 At the time of the back injury claimant was earning 
 
            approximately $22 per hour with incentive pay.  At present 
 
            claimant is earning approximately $20.18 per hour.  
 
            
 
                 Since the back injury claimant has experience 
 
            persistent pain.  The back injury inhibits claimant's 
 
            activities of daily living.  It is found that due to the 
 
            pain suffered from the back injury claimant would be 
 
            restricted from certain jobs which require repetitive 
 
            bending and stooping along with heavy lifting.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was assigned a 10 percent permanent impairment 
 
            rating for the low back condition.  The employer voluntarily 
 
            paid 17 percent permanent partial disability to the body as 
 
            a whole.  No settlement papers were filed with the 
 
            industrial commissioner's office.  The settlement discussed 
 
            during the hearing was simply a voluntary agreement to make 
 
            payment of industrial disability.  
 
            
 
                 Claimant's work experience consists primarily of manual 
 
            labor for John Deere.  Claimant also has military experience 
 
            along with work experience in a grocery store.  Claimant is 
 
            a motivated and dedicated worker. 
 
            
 
                 The employer made a good faith effort to re-employ the 
 
            claimant after his back injury as demonstrated by his 
 
            current employment status.  
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The first issue is the extent of industrial disability 
 
            incurred as a result of the September 22, 1988 low back 
 
            injury in file number 896468.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 It is held that claimant experience 25 percent 
 
            industrial disability as a result of the September 22, 1988 
 
            low back injury incurred while employed with John Deere 
 
            Dubuque Works of Deere and Company.  While all pertinent 
 
            factors were determined, the employer's decision to return 
 
            claimant to work with the company along with the lack of 
 
            formal medical restrictions mitigates against a finding of 
 
            higher industrial disability.  Claimant's impairment rating 
 
            and constant back pain experienced since the time of injury 
 
            lead to the conclusion that claimant did experience an 
 
            industrial disability as a result of the injury.  As 
 
            stipulated by the parties, the commencement date of 
 
            permanent partial disability is February 15, 1990.
 
            
 
                 The next issue is whether claimant incurred an injury 
 
            to the right and left hand on March 4, 1991, in file number 
 
            1034557.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 It is held that claimant incurred a bilateral carpal 
 
            tunnel syndrome and nerve compression on March 4, 1991, as 
 
            the result of repetitive motion production work at John 
 
            Deere Dubuque Works of Deere and Company.  The date of March 
 
            4, 1991, is appropriate as it was the first day that 
 
            claimant was taken off work due to the physical disability.  
 
            
 
                 Having found that a bilateral injury occurred on March 
 
            4, 1991, it follows that the April 11, 1991 injury date is 
 
            not appropriate.  The petition in file 1034558 must 
 
            therefore be dismissed.
 
            
 
                 The next issue is whether the claimant has sustained 
 
            the burden of establishing a causal connection between the 
 
            injury of March 4, 1991 and the healing period disability 
 
            and permanent partial disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The medical records, when viewed as a whole, 
 
            dramatically and graphically demonstrate that claimant did 
 
            incur disability during the period March 4, 1991 and May 12, 
 
            1991 as a healing period due to the repetitive motion injury 
 
            of March 4, 1991.  Furthermore, exhibit 11 in the hand cases 
 
            demonstrates a causal connection of the injury to permanent 
 
            disability.  Therefore, claimant has carried the burden of 
 
            establishing a causal connection to both healing period and 
 
            permanent disability. 
 
            
 
                 The next issue concerns the claimant's request to amend 
 
            pleadings.  As a general rule, pleadings may be amended to 
 
            conform to proof if no prejudice can be found.  Cross v. 
 
            Hermanson Brothers, 235 Iowa 739, 743, 16 N.W.2d 616, 618 
 
            (1944).  It is held that an amendment to the pleadings in 
 
            file number 1034557 concerning the injury date of March 4, 
 
            1991, is appropriate.  All facts pertinent to the case were 
 
            disclosed by reason of the injury date dated April 11, 1991.  
 
            No new injury was pled.  It was simply a change in the date 
 
            on a cumulative trauma exposure.  Furthermore, all records 
 
            relevant to the date of injury were in the employer's 
 
            possession since the onset of symptoms.  Employer would not 
 
            be prejudiced by undisclosed facts presented at the time of 
 
            hearing as a result of the amendment to pleadings.  
 
            Claimant's request to amend the pleadings is granted.  The 
 
            March 4, 1991, injury is amended to include both the right 
 
            and left hands in file number 1034557.
 
            
 
                 The next issue is whether the hand injury should be 
 
            evaluated on a 500 weeks schedule under 85.34(2)(s).  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
                 Benefits for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 It is held that claimant is entitled to 33 percent of 
 
            the 500-week schedule under section 85.34(2)(s).  This 
 
            entitles claimant to 165 weeks of benefits commencing May 
 
            13, 1991.  
 
            
 
                 The next issue is whether the refusal to have surgery 
 
            would reduce claimant's entitlement to benefits for 
 
            permanent disability of the hands.  It is held that 
 
            claimant's fear of surgery is sincere and the refusal 
 
            reasonable.  Bruneau v. Insulation Service, Inc.,  I Iowa 
 
            Industrial Commissioner Report 34, 35 (App. Dec. 1981) 
 
            specifically provides that if a refusal to have surgery is 
 
            reasonable, compensation benefits should not be denied.  
 
            Therefore, claimant's refusal to have surgery does not 
 
            reduce claimant's entitlement to permanent partial 
 
            disability benefits under section 85.34(2)(s).
 
            
 
                 The next issue is the entitlement to healing period 
 
            benefits.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 It is held that claimant is entitled to healing period 
 
            benefits beginning March 4, 1991 through May 12, 1991, at 
 
            the rate of $497.75.  Employer is entitled to receive 
 
            credits of $3950 for benefits paid under a company health 
 
            plan.
 
            
 
                 The next issues concern the barring of the claim under 
 
            section 85.26 and section 85.23.  Having found that the 
 
            injury date occurred on March 4, 1991, the time when 
 
            claimant was first disabled as a result of the bilateral, 
 
            cumulative trauma disorder, it follows that employer's 
 
            arguments are without merit.  The employer was clearly on 
 
            notice that claimant was having difficulty with his hands.  
 
            The fact that he began having problems two to three years 
 
            prior to the actual date of disability does not bar the 
 
            action under either section 85.23 or section 85.26.  It is 
 
            the date of injury which must be used to determine notice 
 
            and statute of limitations.  Since the date of injury in a 
 
            cumulative trauma is the actual date when claimant lost 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            work, the defenses are not applicable.  
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 In file number 1034558:
 
            
 
                 The petition is dismissed and claimant takes nothing 
 
            from the file number.
 
            
 
                 In file number 896468:
 
            
 
                 Employer, self-insured, is to pay claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability at 
 
            the rate of four hundred thirty-one and 77/100 dollars 
 
            ($431.77) per week commencing February 15, 1990.
 
            
 
                 Employer is entitled to receive credits for benefits 
 
            previously paid in this file number.
 
            
 
                 In file number 1034557:
 
            
 
                 Employer, self-insured, is to pay claimant one hundred 
 
            sixty-five (165) weeks of permanent partial disability 
 
            benefits under section 85.34(2)(s) at the rate of four 
 
            hundred ninety-seven and 75/100 dollars ($497.75) per week 
 
            commencing May 13, 1991.
 
            
 
                 Employer is entitled to receive credits for benefits 
 
            paid with respect to permanent partial disability.
 
            
 
                 It is further ordered that employer, self-insured, pay 
 
            claimant healing period benefits commencing March 4, 1991 
 
            through May 12, 1991, at the rate of four hundred 
 
            ninety-seven and 75/100 dollars ($497.75) for a total of ten 
 
            (10) weeks.
 
            
 
                 It is further ordered that employer is entitled to 
 
            receive credit against the healing period benefits in the 
 
            amount of three thousand nine hundred fifty dollars ($3950) 
 
            under section 85.38(2) for payment of disability pay from 
 
            the employer's group plan.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest shall accrue 
 
            pursuant to Iowa Code section 85.30 in both cases where 
 
            benefits are ordered.
 
            
 
                 It is further ordered that the costs of all three 
 
            actions are assessed against the employer, self-insured, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that employer, self-insured, file 
 
            claim activity reports as required by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of July, 1994.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Michael J. Shubatt
 
            Mr. Michael Coyle 
 
            Attorneys at Law
 
            200 Security Bldg
 
            151 W. 8th St. 
 
            Dubuque, Iowa  52001-6832
 
            
 
            Mr. Leo McCarthy
 
            Mr. Jennifer Clemens
 
            Attorneys at Law
 
            222 Fischer Bldg
 
            PO Box 239
 
            Dubuque, Iowa  52004-0239
 
            
 
 
            
 
            
 
            
 
            
 
                                      51100 51803 51803.1 51808 52209 
 
                                      Filed July 19, 1994
 
                                      Marlon D Mormann
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RONALD J PFIFFNER,  
 
                                          File Nos. 1034557 1034558
 
                 Claimant,                           896468 
 
                      
 
            vs.                              A R B I T R A T I O N
 
                            
 
            JOHN DEERE DUBUQUE WORKS,            D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ------------------------------------------------------------
 
            51100 51803 51803.1 51808 52209 
 
            
 
            Claimant alleged three injuries with three separate file 
 
            numbers.  Claimant had experienced a back injury in 1988.  
 
            It was held that claimant was entitled to 25 percent 
 
            industrial disability due to a 10 percent impairment rating 
 
            with no work restrictions.  Claimant was returned to work by 
 
            the employer and had experienced a lower rate of pay.  
 
            Claimant's back pain was well documented and demonstrated an 
 
            inability to engage in normal daily activities.  The lack of 
 
            work restrictions imposed by a medical doctor did not 
 
            prevent a finding that claimant was restricted from certain 
 
            jobs for which he had prior training and experience.  
 
            Claimant was 49 years old at the time of injury and had been 
 
            in manual labor for his entire life.
 
            
 
            Claimant alleged separate injury dates for a right and left 
 
            hand cumulative trauma disorder.  Claimant's treating doctor 
 
            gave impairment ratings of 30 percent to each upper 
 
            extremity.  It was held that the injury should be evaluated 
 
            under section 85.34(2)(s) because claimant complained of 
 
            bilateral problems from the onset of symptoms.  The injury 
 
            date was determined to be the date of surgery which was the 
 
            date first day that claimant lost time from work.  The 
 
            impairment ratings were converted to the body as a whole 
 
            using the AMA Guides and the combined values charts.  
 
            Claimant was compensated under a 500-week schedule.
 
            Employer alleged statute of limitations and notice defense 
 
            because claimant had been experiencing symptoms for over 
 
            three years prior to the date of injury.  The defenses were 
 
            found to be without merit because claimant's injury date was 
 
            the first time that he lost work as a result of the problem.  
 
            Therefore the statute of limitations and the notice defense 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            were without merit.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA BILLS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 896510
 
            EMCO INDUSTRIES,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INSURANCE,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Patricia 
 
            Bills, claimant, against Emco Industries, employer, and Crum 
 
            & Forster Commercial Insurance, insurance carrier, as well 
 
            as the Second Injury Fund of Iowa, based on injuries 
 
            sustained on May 1, 1984 and September 23, 1988.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on October 31, 1991, in Des Moines, 
 
            Iowa.  The record in this case consists of joint exhibits, 
 
            Volume I (1-14 and 25); and defendants' exhibit I.  The 
 
            matter was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 31, 1991, the parties presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant's second injury was to her left 
 
            foot or leg; and,
 
            
 
                 2.  Whether there is Second Injury Fund liability and, 
 
            if so, the extent thereof.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant is 34 years old and completed the tenth grade 
 
            of school.  She has worked primarily as an assembler since 
 
            1971.  From 1971 through 1981, she worked for Massey 
 
            Ferguson assembling snowmobiles, tractors and lawn mowers.  
 
            In 1981, she commenced working for Emco on the assembly 
 
            line.
 
            
 
                 Claimant filed a claim before the Iowa Industrial 
 
            Commissioner alleging an injury on May 25, 1984.  By 
 
            arbitration decision dated June 18, 1985, claimant was 
 
            awarded 40 weeks of permanent partial disability benefits 
 
            due to bilateral loss of use of her upper extremities 
 
            (Exhibit 25).
 
            
 
                 Claimant testified that she returned to assembly line 
 
            work with employer.  In September 1988, she began experienc
 
            ing pain in her left heel.  On March 27, 1989, she underwent 
 
            surgery on her left foot.  Six weeks after surgery, she 
 
            returned to work with a cast.  She was put on light duty and 
 
            given a sedentary job which paid $1.00 an hour less than the 
 
            job she had at the time of her injury.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant presented to the Central Iowa Orthopedic Clinic on 
 
            September 30, 1988, with complaints of intense pain in her 
 
            left heel.  She refused a steroid injection and elected to 
 
            try conservative treatment such as heel cups and arch 
 
            supports.  She was followed in the clinic by Dennis Kessler, 
 
            D.P.M.  On November 4, 1988, she agreed to an injection of 
 
            her plantar left heel.  She was prescribed Feldene and 
 
            orthotics.  Despite a normal EMG, she continued to have 
 
            severe pain in the plantar left heel area.  A bone scan was 
 
            performed at Lutheran Hospital on January 5, 1989, and 
 
            revealed a tiny localized uptake in the left calcaneus in 
 
            its mid-portion.  Claimant was asked to see Robert 
 
            Weatherwax, M.D., an orthopedic specialist, for a second 
 
            opinion (Ex. 4).
 
            
 
                 Dr. Weatherwax examined claimant on January 20, 1989, 
 
            and diagnosed "Tarsal tunnel syndrome with entrapment of the 
 
            calcaneal branch of the posterior tibial nerve, left foot 
 
            and heel."  He recommended continued conservative therapy 
 
            (Ex. 4, p. 6)
 
            
 
                 Claimant was seen for an independent medical 
 
            examination by William G. Sprague.  He diagnosed a left heel 
 
            spur with tarsal tunnel syndrome and recommended a left 
 
            lower extremity neurological evaluation and EMG.  These 
 
            studies were negative.  At a follow-up evaluation on March 
 
            16, 1989, Dr. Sprague recommended a tarsal tunnel release 
 
            with heel spur excision and possible neurectomy to the heel 
 
            area.  The recommended surgery was performed on March 27, 
 
            1989.  After numerous follow-up evaluations, Dr. Sprague 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            determined that claimant had reached maximum healing on 
 
            August 3, 1989, and was assigned a 0 percent permanent 
 
            partial disability (Ex. 1, p. 46).
 
            
 
                 Being dissatisfied with this rating, another orthopedic 
 
            consultation was obtained from Dr. Weatherwax on August 21, 
 
            1989.  Dr. Weatherwax indicated that longer healing period 
 
            was necessary before he would address a permanent impairment 
 
            rating.  He stated that her pain may decrease over a period 
 
            of time (Ex. 4, p. 7; Ex. 1, p. 47).
 
            
 
                 Claimant then underwent a total of six therapy sessions 
 
            at Iowa Methodist Pain Management Center (Ex. 3, p. 1).
 
            
 
                 Despite following the restrictions given by Dr. 
 
            Sprague, which included no standing more than ten minutes or 
 
            walking more than five minutes per hour, claimant continued 
 
            to have numerous complaints of pain in her left foot.  On 
 
            October 5, 1989, she was seen by Chester Pelsang, D.P.M., an 
 
            associate of Dr. Sprague.  Hot and cold treatments were 
 
            recommended.  She was also advised to pursue a more active 
 
            lifestyle.  On October 17, 1989, she was able to see Dr. 
 
            Sprague.  He found no underlying cause for her 
 
            symptomatology (Ex. 1, pp. 46-53).
 
            
 
                 On December 18, 1989, claimant saw Dr. Weatherwax for 
 
            an independent permanent partial impairment evaluation.  A 
 
            rating of 5 percent of the left lower extremity was given by 
 
            Thomas A. Wheatley, L.P.T., and approved by Dr. Weatherwax 
 
            on December 19, 1989 (Ex. 1, p. 56; Ex. 2, p. 15).
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be determined is whether claimant's 
 
            left extremity loss is to her foot or leg.
 
            
 
                 Iowa Code section 85.34(2)(o) states that:  "The loss 
 
            of two-thirds of that part of a leg between the hip joint 
 
            and the knee joint shall equal the loss of a leg...."  
 
            Anatomically, the lateral plantar nerve and medial plantar 
 
            nerve are located in the foot (Def. Ex. I).  Furthermore, 
 
            the situs of the injury and surgery (the calcaneum), is in 
 
            the left foot and heel (Def. Ex. I).  Therefore, it is 
 
            concluded that claimant sustained an injury to her foot and 
 
            not her leg and compensation should be paid based on 150 
 
            weeks pursuant to section 85.34(2)(n).  Claimant is entitled 
 
            to 7.5 weeks of permanent partial disability benefits as a 
 
            result of the loss of use of her left foot.
 
            
 
                 The next issue to be determined is whether there is 
 
            Second Injury Fund liability and if so, the extent thereof.
 
            
 
                 Under Iowa Code section 85.63 through 85.69, three 
 
            requirements must be met in order to establish Fund 
 
            liability:  First, claimant must have previously lost or 
 
            lost the use of a hand, an arm, a foot, a leg, or an eye; 
 
            second, through another compensable injury, claimant must 
 
            sustain another loss or loss of use of another member; and 
 
            third, permanent disability must exist as to both injuries.  
 
            If the second injury is limited to a scheduled member, then 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the employer's liability is limited to the schedule and the 
 
            Fund is responsible for the excess industrial disability 
 
            over the combined scheduled loss of the first and second 
 
            injuries.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983), and Second Injury Fund v. Neelans, 436 N.W.2d 
 
            355 (Iowa 1989).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            impairment and work restrictions.
 
            
 
                 As previously noted, claimant is 52 years old and 
 
            completed the tenth grade of school.  She has worked as an 
 
            assembler since 1971.  She has no other work history.  
 
            Claimant's current permanent work restrictions due to her 
 
            left heel problems include no standing or walking in excess 
 
            of ten minutes per hour.  Claimant still has numerous 
 
            subjective complaints regarding her left foot which appear 
 
            out of proportion when compared to the clinical and 
 
            laboratory findings in the record.  However, it is 
 
            acknowledged that claimant's two injuries have caused 
 
            difficulty for her when performing physical work.  However, 
 
            the extent of this difficulty appears exaggerated.  Claimant 
 
            is not in the peak earning years of her employment career.  
 
            Employer has accommodated claimant's restrictions.  
 
            Nevertheless, she was placed in another job due to her 
 
            inability to stand which pays $1.00 an hour less than the 
 
            job she had at the time of her heel injury.  Claimant has 
 
            sustained a loss of earnings and has a loss of earning 
 
            capacity as a result of her injuries.
 
            
 
                 Claimant has established by a preponderance of the 
 
            evidence that she sustained the loss of use of two specified 
 
            scheduled members in order to invoke Second Injury Fund 
 
            liability.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 20 
 
            percent industrial disability as against the Second Injury 
 
            Fund.  Claimant, therefore, is entitled to 100 weeks of 
 
            benefits less the scheduled member disability.  Claimant's 
 
            bilateral upper extremity was rated at 8 percent which 
 
            totals 40 weeks pursuant to Iowa Code section 85.34(2)(u).  
 
            The left heel was rated at 5 percent which totals 7.5 weeks 
 
            pursuant to Iowa Code section 85.34(2)(n).  The combined 
 
            scheduled member disability equals 47.5 weeks.  Claimant has 
 
            established entitlement to 52.50 weeks (100-47.5) of 
 
            benefits for payment of permanent partial disability by the 
 
            State of Iowa Second Injury Fund.
 
            
 
                 Employer/insurance carrier have previously paid 21 
 
            weeks of healing period benefits and 11 weeks of permanent 
 
            partial disability benefits based upon 5 percent permanent 
 
            impairment of the left leg, although the injury was confined 
 
            to the left foot.  Employer and insurance carrier owe 
 
            nothing further to claimant.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the Second Injury Fund of Iowa shall pay claimant 
 
            fifty-two point fifty (52.50) weeks of permanent partial 
 
            disability benefits commencing January 15, 1990, at the rate 
 
            of two hundred two and 66/100 dollars ($202.66) per week.
 
            
 
                 That employer/insurance carrier and the Second Injury 
 
            Fund of Iowa shall each pay one-half of the costs of these 
 
            proceedings pursuant to Rule 343 IAC 4.33.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue on benefits paid by the 
 
            Second Injury Fund of Iowa commencing on the date of this 
 
            decision.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
            467, 473 (Iowa 1990).
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Fredd J Haas
 
            Attorney at Law
 
            5001 SW 9th
 
            Des Moines IA 50315
 
            
 
            Mr Harry W Dahl Sr
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            Ms Shirley A Steffe
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Office Building
 
            LOCAL
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 5-3200
 
                      Filed November 19, 1991
 
                      Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATRICIA BILLS,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 896510
 
            EMCO INDUSTRIES,    :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CRUM & FORSTER COMMERCIAL     :
 
            INSURANCE,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-3200
 
            Claimant makes a claim against the Second Injury Fund for 
 
            permanent partial disability benefits for the combined 
 
            disability caused by a 1984 bilateral upper extremity injury 
 
            and a September 1988 left foot injury.  Claimant is 52 years 
 
            old and completed the tenth grade of school.  She has worked 
 
            as a factory assembler since 1979.  In 1984, she had 
 
            bilateral excision of ganglion cysts.  Subsequently, she 
 
            returned to her usual job as a line assembler.  An 
 
            arbitration decision awarded her 40 weeks of permanent 
 
            partial disability benefits based upon an 8 percent 
 
            permanent impairment rating.
 
            Claimant was found to have a work-related injury to her left 
 
            heel and underwent left calcaneal spur removal with left 
 
            tarsal tunnel release and left foot neuroma removal.  She 
 
            was given an impairment rating of 5 percent to the left 
 
            lower extremity.
 
            Employer/insurance carrier paid 21 weeks of healing period 
 
            and 11 weeks of permanent partial disability benefits based 
 
            on 5 percent permanent partial disability of the left leg, 
 
            although the injury was confined to the left foot.
 
            After considering all the factors of industrial disability, 
 
            including claimant's age, education, work experience, loss 
 
            of earning capacity, loss of earnings and work restrictions, 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            claimant was awarded 20 percent industrial disability.
 
            As a result of the combined effect of her bilateral upper 
 
            extremity injuries and her left foot injury, the combined 
 
            scheduled member disability equalled 47.5 percent.  Second 
 
            Injury Fund liability was found to be 52.50 percent.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            KEATING HISSEM,               :
 
                                          :
 
                 Claimant,                :        File No. 896512
 
                                          :
 
            vs.                           :          A P P E A L
 
                                          :
 
            GRIFFIN WHEEL COMPANY,        :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 5, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Keokuk, Iowa 52632-1087
 
            
 
            Mr. John E. Kultala
 
            Attorney at Law
 
            511 Blondeau Street
 
            Keokuk, Iowa 52632
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 23, 1991
 
                                          BYRON K. ORTON
 
                                          LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEATING HISSEM,               :
 
                                          :
 
                 Claimant,                :      File No. 896512
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            GRIFFIN WHEEL COMPANY,        :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 5, 
 
            1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 23, 1991
 
                                          BYRON K. ORTON
 
                                          LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEATING HISSEM,               :
 
                                          :
 
                 Claimant,                :      File No. 896512
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            GRIFFIN WHEEL COMPANY,        :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 5, 
 
            1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEATING HISSEM,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 896512
 
            GRIFFIN WHEEL COMPANY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Keating 
 
            Hissem, claimant, against Griffin Wheel Company, employer, 
 
            hereinafter referred to as Griffin, a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on September 20, 1988.  On October 11, 
 
            1990, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record in this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits offered 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On September 20, 1988, claimant received an injury 
 
            which arose out of and in the course of employment with 
 
            Griffin;
 
            
 
                 2.  Claimant is entitled to either temporary total 
 
            disability or healing period benefits from September 21, 
 
            1988 through October 23, 1988, and temporary partial 
 
            disability from October 24, 1988 through February 26, 1988, 
 
            except that there is a dispute as to entitlement to such 
 
            benefits for a two week period in August 1989 during which 
 
            all employees at Griffin were temporarily laid off;
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial 
 
            disability to the body as a whole;
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            should begin as of March 7, 1990;
 
            
 
                 5.  With reference to computing claimant's rate of 
 
            weekly compensation, it was agreed that claimant's gross 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            weekly earnings for 13 weeks prior to the injury was 
 
            $490.17.  It was also agreed that claimant is entitled to 
 
            marital status and five exemptions in calculating the rate 
 
            of compensation on the date of injury.  It was further 
 
            agreed that claimant was paid $10.61 per hour at the time of 
 
            injury; and,
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendant.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                 I.  The extent of claimant's entitlement to permanent 
 
            disability benefits and to temporary total/healing 
 
            period/temporary partial benefits during the two week layoff 
 
            period in August 1989.
 
            
 
                 II.  Claimant's rate of weekly compensation.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary in this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 The length of time claimant worked for Griffin prior to 
 
            the injury is not available in the record but Griffin's 
 
            personnel director testified that claimant is second in 
 
            seniority in the Griffin plant and this testimony was not 
 
            challenged.  At the time of the injury, claimant was a 
 
            material handler which required claimant to perform heavy 
 
            work such as shoveling loose, bulk material from a truck.  
 
            According to Griffin, claimant had a good work record prior 
 
            to the injury.  Claimant has not returned to his material 
 
            handling work since the work injury.  Claimant was placed on 
 
            light duty for several months and then was given a permanent 
 
            job of driving a fork lift truck, a job within physician-
 
            imposed restrictions against heavy repetitively lifting and 
 
            repetitively bending and twisting.
 
            
 
                 The injury of September 29, 1988 occurred as a result 
 
            of shoveling at work.  Due to low back pain which 
 
            occasionally radiates into the legs and stiffness, claimant 
 
            was unable to continue working.  Claimant was initially 
 
            treated by his family physician but was soon referred to a 
 
            neurosurgeon, Oliver Gerald Orth, M.D.  Dr. Orth treated 
 
            claimant through January 1990 with exercises, physical 
 
            therapy and medication.  Claimant returned to work to a 
 
            part-time light duty job on October 24, 1988, and was paid 
 
            temporary partial disability benefits until he obtained the 
 
            permanent full-time fork lift job on February 27, 1990.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant was not paid temporary partial disability benefits 
 
            during a plant-wide temporary layoff for a period of two 
 
            weeks in August 1989.
 
            
 
                 Dr. Orth attributes claimant's pain primarily to 
 
            degenerative changes in claimant's spine but admits that 
 
            claimant probably suffered a small herniation of one of the 
 
            discs from the September 1988 injury.  The occurrence of 
 
            this herniation was verified by another physician, Philip 
 
            Wilson, M.D., in November 1989.  A treatment program with 
 
            steroid injections prescribed by Dr. Wilson did little to 
 
            alleviate claimant's chronic pain.
 
            
 
                 There is little dispute in the record that claimant's 
 
            back problems are chronic and permanent.  In January 1990, 
 
            Dr. Orth felt that physical therapy and claimant's exercise 
 
            program should no longer be continued as it would not 
 
            benefit claimant.  He indicated to Griffin in his most 
 
            recent correspondence of October 1, 1990, that claimant 
 
            cannot be expected to be symptom-free and capable of 
 
            performing heavy manual labor in the future.  Claimant would 
 
            simply have to learn to live with his pain.  The dispute in 
 
            this case among the parties centers around the causal 
 
            connection of claimant's current condition to the September 
 
            1988 injury.
 
            
 
                 It is found that claimant has suffered a significant 
 
            permanent partial impairment as a result of the work injury 
 
            of September 20, 1988.  This finding is made despite the 
 
            lack of a clear opinion from the primary treating physician, 
 
            Dr. Orth, that the injury was the cause of impairment.  His 
 
            views were very confusing.  There is no dispute in the 
 
            record that claimant was symptom-free prior to September 20, 
 
            1988 and was very physically active at work and in 
 
            recreational activities.  The testimony of claimant and his 
 
            wife was credible.  Furthermore, after the injury, claimant 
 
            had to severely curtail these activities as a result of the 
 
            pain caused by the injury.  Claimant's lack of improvement 
 
            from the injury compelled Dr. Orth to impose permanent 
 
            restrictions against heavy work.  These permanent 
 
            restrictions resulted in a transfer at Griffin to a new 
 
            position which was less physically demanding.  When asked if 
 
            the injury caused disability, Dr. Orth, in his deposition, 
 
            stated that claimant's pain is due to the degenerative 
 
            changes in claimant's spine which are "somewhat related to 
 
            normal aging changes" but that "one could assume" that the 
 
            shoveling injury caused these changes or at least 
 
            "accelerated the process of change."  The doctor added that 
 
            he could not say that this occurred "definitely."  What the 
 
            doctor meant by the use of such language is unknown given 
 
            the fact that he did find a small herniation and attributes 
 
            some of claimant's problems to this herniation.  This deputy 
 
            commissioner believes that although the doctor waffles on 
 
            the causal connection issue, he has sufficiently indicated 
 
            that there is a possibility of such a connection.  The 
 
            claimant does not have to prove beyond all doubt that it is 
 
            more likely than not that his disability is related to the 
 
            injury.  It is specifically found in addition that claimant 
 
            had no prior problems or symptoms and such symptoms began 
 
            with the injury of September 20, 1988, and have continued 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            with little abatement since that time.
 
            
 
                 It is further found that claimant's physical activity 
 
            restrictions and the change in jobs to fork lift operator 
 
            was a result of the injury of September 20, 1988, apart from 
 
            the issue of permanent impairment.
 
            
 
                 As a result of the work injury of September 20, 1988, 
 
            claimant has suffered only a 5 percent loss of earning 
 
            capacity.  This finding is made even if there had been no 
 
            showing of permanent impairment as a result of the injury as 
 
            the claimant was compelled to seek a job transfer to a job 
 
            which has affected his earning capacity.  Claimant is a high 
 
            school graduate with one year of college.  Claimant's 
 
            medical condition before the injury was excellent and had no 
 
            functional impairments or ascertainable disabilities.  
 
            Claimant was able to perform physical tasks involving heavy 
 
            lifting, repetitive lifting, bending and twisting.  Due to 
 
            his physical limitations at the present time, claimant's 
 
            medical condition prevents him from returning to his former 
 
            work or any other work which requires heavy strenuous or 
 
            repetitive lifting.  Claimant's past employment primarily 
 
            consists of heavy work at Griffin.  However, claimant has 
 
            not suffered much of a loss of earnings due to the 
 
            accommodation made by Griffin for claimant's disability.  
 
            Claimant is back to work and has suffered no loss of hourly 
 
            wages.  Claimant's only loss of income has been a result of 
 
            his inability to work overtime in jobs which would exceed 
 
            his work restrictions.  Claimant is second in plant 
 
            seniority and appears to have a suitable stable job.
 
            
 
                 With reference to claimant's rate of compensation, 
 
            claimant worked 50 to 60 hours per week on the average 
 
            during the 52 weeks prior to the injury.  The larger amount 
 
            of work in excess of 40 hours was not the case in the 13 
 
            weeks prior to the injury.
 
            
 
                                conclusions of law
 
            
 
                 I.  The claimant has the burden of proving by a 
 
            preponderance of the evidence that the work injury is a 
 
            cause of the claimed disability.  A disability may be either 
 
            temporary or permanent.  In the case of a claim for 
 
            temporary disability, the claimant must establish that the 
 
            work injury was a cause of absence from work and lost 
 
            earnings during a period of recovery from the injury.  
 
            Generally, a claim of permanent disability invokes an 
 
            initial determination of whether the work injury was a cause 
 
            of permanent physical impairment or permanent limitation in 
 
            work activity.  However, in some instances, such as a job 
 
            transfer caused by a work injury, permanent disability 
 
            benefits can be awarded without a showing of a causal 
 
            connection to a physical change of condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause of a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            section 85.34(2)(u).  However, unlike scheduled member 
 
            disabilities, the degree of disability under this provision 
 
            is not measured solely by the extent of a functional 
 
            impairment or loss of use of a body member.  A disability to 
 
            the body as a whole or an "industrial disability" is a loss 
 
            of earning capacity resulting from the work injury.  
 
            Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 
 
            N.W. 899 (1935).  A physical impairment or restriction on 
 
            work activity may or may not result in such a loss of 
 
            earning capacity.  The extent to which a work injury and a 
 
            resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several 
 
            factors.  These factors include the employee's medical 
 
            condition prior to the injury, immediately after the injury 
 
            and presently; the situs of the injury, its severity and the 
 
            length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 5 percent loss of earning capacity as a result of 
 
            the work injury.  Based upon such a finding, claimant is 
 
            entitled, as a matter of law, to 25 weeks of permanent 
 
            partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 5 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body of the whole of that 
 
            subsection.
 
            
 
                 Claimant is entitled to healing period benefits under 
 
            Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; or until it is indicated that        
 
            significant improvement from the injury is not anticipated, 
 
            whichever occurs first.  Claimant is also entitled to 
 
            temporary partial disability benefits under Iowa Code 
 
            section 85.33(3) when the employer offers suitable work 
 
            within claimant's abilities and the pay for such work is 
 
            less than claimant's temporary total disability or healing 
 
            period entitlement.  Claimant did not reach maximum healing 
 
            until January 1990, when Dr. Orth finally felt claimant 
 
            would not be able to return to full heavy duty at work.
 
            
 
                 Defendant contends that claimant is not entitled to 
 
            either temporary total disability or temporary partial 
 
            disability during the time of the plant-wide layoff.  The 
 
            precise legal arguments are unknown as this issue was not 
 
            dealt with in defendant's brief.  In any event, this deputy 
 
            commissioner disagrees with such a contention.  First, 
 
            claimant is entitled to payment of temporary partial 
 
            disability in lieu of temporary total disability or healing 
 
            period benefits only when suitable work is offered by the 
 
            employer.  It is obvious that during a layoff, suitable work 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            is not offered.  Therefore, claimant's entitlement during 
 
            the layoff period reverts back to temporary total disability 
 
            or healing period.  Temporary total disability or healing 
 
            period benefits begin when disability occurs and ends only 
 
            when claimant either reaches maximum healing or returns to 
 
            work.  As claimant was not working in any capacity during 
 
            the two week layoff, claimant is entitled to healing period 
 
            benefits.  The fact that there may be other reasons for 
 
            being off work are of no consequence as claimant had not 
 
            reached maximum healing.  See arbitration decision of this 
 
            deputy, Chapin v. Firestone Tire & Rubber Company, filed 
 
            December 23, 1987.
 
            
 
                 II.  With reference to computing claimant's rate of 
 
            compensation, Iowa Code section 85.36 provides various 
 
            alternative methods.  When earnings vary, subsection 6 of 
 
            this statute is available which averages the last thirteen 
 
            weeks.  Whether this should be more or less than thirteen 
 
            weeks is a matter which should be argued to the legislature 
 
            and to the governor of this state, not this deputy 
 
            commissioner.  The only time the statute authorizes 
 
            examination of earnings for a full calendar year is pursuant 
 
            to subsection 10, for part-time employees, when it is shown 
 
            that the injured employee, at the time of injury, either 
 
            earned "no wages or less than the usual weekly earnings of 
 
            regular full-time adult laborers in the line of industry in 
 
            which the employee is injury in that locality."  If such a 
 
            showing is made, all the earnings from all employments, not 
 
            just the earnings from the job in which the injury occurred, 
 
            is examined.  Claimant in this case has not shown the 
 
            requisite proof to invoke subsection 10.  Therefore, the 
 
            gross rate of compensation will be calculated over the 
 
            thirteen week period prior to the injury and the stipulation 
 
            with reference to that rate contained in the prehearing 
 
            report will be used to calculate the rate.  Therefore, using 
 
            the commissioner's rate booklet for an injury for this 
 
            injury date and given the parties' stipulations as to 
 
            marital status and exemptions, claimant is entitled to a 
 
            rate of compensation under law of $316.06.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred sixteen and 06/100 dollars ($316.06) per 
 
            week from March 7, 1990.
 
            
 
                 2.  Defendant shall pay to claimant healing period 
 
            benefits for the two week layoff period in August 1989, at 
 
            the rate of three hundred sixteen and 06/100 dollars 
 
            ($316.06) per week.
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendant shall pay the costs of this action 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendant shall file an activity reports upon 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
                 
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk IA 52632
 
            
 
            Mr John E Kultala
 
            Attorney at Law
 
            511 Blondeau St
 
            Keokuk IA 52632
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed March 5, 1991
 
                      Larry P. Walshire
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEATING HISSEM,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 896512
 
            GRIFFIN WHEEL COMPANY,        :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Extent of disability benefits.
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     Before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JUDY McCAMMANT,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 896589
 
         SERVICE MASTER,               :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         HOME INSURANCE CO.,           :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Judy McCammant, against her employer, Service Master, 
 
         and its insurance carrier, Home Insurance Co., defendants.  The 
 
         case was heard in Burlington, Iowa at the Des Moines County 
 
         Courthouse on April 5, 1991.  The record consists of the 
 
         testi-mony of claimant.  The record also consists of joint 
 
         exhibits 1-35.
 
         
 
              For the record, it is noted that claimant, on her own, for
 
         warded to the undersigned a three page undated letter.  The let
 
         ter was in the form of a written argument and was forwarded to 
 
         the attorneys of record by the undersigned.  However, the letter 
 
         was not considered in rendering this decision.  Both attorneys 
 
         submitted briefs which were reviewed.
 
         
 
                                      issues
 
         
 
              The issues to be determined are: 1) whether there is a 
 
         causal relationship between the alleged injury and the 
 
         disability; 2) whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial 
 
         disability benefits; and, 3) whether claimant is entitled to 
 
         medical benefits pursuant to section 85.27.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is a bright and articulate 43-year-old woman.  She 
 
         is skeptical of the workers' compensation system.  She expressed 
 
         her skepticism openly.  Claimant's dissatisfaction extends to 
 
         doctors and lawyers.  Claimant sustained a work related injury on 
 
         August 31, 1988.  While she was completing her rounds at the 
 
         Burlington Medical Center, claimant caught herself on a carpet.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         She flipped herself over, fell and landed on her left knee and 
 
         left shoulder.
 
         
 
              Claimant sought medical attention from the emergency room 
 
         personnel at the Burlington Medical Center.  Notes from the emer
 
         gency room state the following:
 
         
 
              Pt fell in hallway it twisted L knee, rolled onto 
 
              shoulder.  Pt cc is L shoulder tenderness /c gd ROM at 
 
              pain in L knee to L hip is able to bare min unit pedal 
 
              pulse palpable to obvious deformity
 
         
 
              Claimant was placed in a knee immobilizer by the emergency 
 
         room physician, J. Nelson, M.D.  She developed complications.  
 
         She began experiencing severe pain in her chest and in her left 
 
         leg.  Claimant was admitted to the emergency room and later 
 
         admitted to the hospital.  She was seen by Syam P. Kilaru, M.D., 
 
         an associate of claimant's one time physician, Garrett V. 
 
         Ridgley, M.D., who was contacted but who was out of town.  Dr. 
 
         Ridgley, a specialist in internal medicine, later handled 
 
         claimant's care.
 
         
 
              In his letter of September 15, 1988, Dr. Ridgley wrote:
 
         
 
                I am writing this letter regarding your employee, 
 
              Judy McCannant [sic].  As you are well aware, she suf
 
              fered a fall on 3-South on August 31.  The patient 
 
              reports that she was turning the corner from Pediatrics 
 
              Department to head toward 3-West.  It seems as if a 
 
              piece of rug caused her to fall.  She apparently landed 
 
              on her left knee.  She says she bounced twice during 
 
              the fall.  While she did land on carpet, the fall was 
 
              bad enough that she tore her pant leg.  The patient 
 
              also struck her left shoulder.  The patient was in a 
 
              very awkward position and had to be helped up by other 
 
              staff members who came upon the scene of the accident.
 
         
 
                The patient then went down to the emergency room 
 
              where x-rays were taken.  No fracture was noted.  The 
 
              patient was put in a knee immobilizer.  It should be 
 
              pointed out that the patient did have swelling immedi
 
              ately after the accident occurred.  The patient was 
 
              advised to keep her leg elevated and to use the immobi
 
              lizer for one week.  Crutches apparently were not 
 
              advised.  The pt. did have to miss a few days of work 
 
              at that time.  After returning to work the patient had 
 
              difficulty elevating the leg as she had been 
 
              instructed.  Each evening when the patient would go 
 
              home she would have recurrence of her swelling.
 
         
 
              The patient just recently discontinued the use of the 
 
              immobilizer.  Since that time the patient has developed 
 
              further pain in the calf of the left leg and in her 
 
              chest.  Given the fact that the patient was doing quite 
 
              well with no significant problems prior to the acci
 
              dent, I would have to state that it appears as though 
 
              the patient's current problems are directly related to 
 
              that accident.  The patient has been found to have cos
 
              tochondritis of the chest which is probably due to the 
 
              trauma.  We are currently assessing the problems of the 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              left leg.  It is not clear as to whether there is a 
 
              blood clot or not.  We should have that result within 
 
              12 to 24 hours.  One can easily get blood clots in a 
 
              traumatized leg, however, even if there are not any 
 
              blood clots I would still suspect that the recent 
 
              trauma led to the patient's current problems.
 
         
 
              Dr. Ridgley summarized claimant's treatment in his notes of 
 
         October 25, 1988.  Dr. Ridgley wrote in relevant portion:
 
         
 
              From a neurological standpoint, pt. was seen by Dr. E. 
 
              T. Shivapour.  This consultation is available on the 
 
              chart.  Pt. did have episode which he would describe as 
 
              blindness in one eye.  Dr. Shivapour did not feel that 
 
              this was clinically significant.  CT scan was done and 
 
              it was negative.  This helped to reassure us that the 
 
              pt. was not having a subdural from her previous fall.
 
         
 
              The pt.'s leg continued to be a problem with pain, 
 
              especially with walking.  Pt. was seen in consultation 
 
              by the orthopedic surgeons.  They felt the pt. had rup
 
              tured plantaris tendonitis and that she would benefit 
 
              by increased walking but indeed that she would have to 
 
              expect some discomfort.  Pt. was advised of this find
 
              ing, and she was advised that she needed to continue to 
 
              walk as much as possible even though there would be 
 
              some discomfort.
 
         
 
              At the end of everything, it was felt that the pt.'s 
 
              primary problem had been her fall while at work.  This 
 
              had lead to blunt chest trauma with costochondritis and 
 
              chest wall tenderness.  Pt. also has suffered a rupture 
 
              of her plantaris tendon leading to her leg pain.  
 
              During the pt.'s hospital evaluation, she was found to 
 
              have elevated blood sugars which were brought under 
 
              control with oral hypoglycemic agents.  Pt. was 
 
              reassessed for her right eye abnormalities.  It was 
 
              felt that that was an ongoing and unchanging problem.  
 
              Lastly, because of the analgesics necessary for her 
 
              chest and leg pains, pt. did have an upper G.I. which 
 
              showed a duodenitis.
 
         
 
              Pt. was given discharge instruction sheet on which we 
 
              advised her to continue on diabetic diet of 1500 calo
 
              ries per day.  She should take her fasting blood sugar 
 
              each morning, keep her record.  Pt. was given Carafate 
 
              1 gm. tablets to take 1/2 hour before breakfast and 
 
              lunch.  Tagamet 800 mgs. at bedtime.  Feldene 20 mgs. 
 
              at lunchtime.  Indocin SR 75 at breakfast until they 
 
              were gone.  #5 were given.  Glucotrol 10 mgs. b.i.d., 
 
              Bancap 1 every 6 hours as needed for pain.  Pt. was 
 
              advised to walk at home as much as she could tolerate 
 
              then rest.  No heavy lifting for at least the week and 
 
              pt. was to be seen again in two week's time.  Pt.'s 
 
              condition at the time of discharge was improved.
 
         
 
              Because claimant made little progress, she was referred to 
 
         an orthopedic surgeon.  Initially claimant saw Jerry Jochims, 
 
         M.D., on September 16, 1988, but she desired to see his partner 
 
         instead, Koert Smith, M.D.  Dr. Smith examined claimant on 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         October 20, 1988.  Dr. Jochims evaluated claimant as having a 
 
         plantaris tendon rupture.  Claimant continued to have pain and 
 
         swelling and her leg did not respond to rest, elevation, walking 
 
         with crutches or a cane.
 
         
 
              Dr. Smith performed a number of tests.  His final diagnosis 
 
         was a plantaris tendon rupture.  In his deposition, Dr. Smith 
 
         opined:
 
         
 
              A  Overall conclusion is -- that again based on Doctor 
 
              Jochims' initial evaluation -- that she probably did 
 
              have a plantaris tendon rupture.
 
         
 
                 Typically that process or problem would heal over 
 
              about a three-month period of time.  She additionally 
 
              has multiple medical problems including diabetes, 
 
              including a preexisting disk injury to her back.  She's 
 
              considerably overweight, has some edema in both lower 
 
              extremities; and again I think her work injury problem 
 
              was a plantaris tendon rupture that, because of all of 
 
              the other medical problems, she's continued to be symp
 
              tomatic from.  But that injury, in and of itself, I 
 
              would anticipate should have healed in about a 
 
              three-month period of time.
 
         
 
         (Exhibit 22, page 7, lines 6-19)
 
         
 
              Additionally, Dr. Smith opined:
 
         
 
              Q  All right.  Doctor, do you have an opinion within a 
 
              reasonable degree of medical certainty or probability 
 
              as to whether or not she has a permanent partial im
 
              pairment to the left leg?
 
         
 
              A  Yeah.
 
         
 
              Q  And what is that opinion?
 
         
 
              A  My opinion is that she does have persistent pain in 
 
              the leg, but I think she has no objective abnormality 
 
              as it relates to her plantaris tendon injury.
 
         
 
              Q  Okay.  Is that pain such that it would impair the 
 
              use of the function in some manner?
 
         
 
              A  The pain in her leg has prohibited her from getting 
 
              back to doing her previous job and, you know, any job 
 
              for that matter.
 
         
 
                   Again I think that it's difficult to say that all 
 
              the pain that she has at this time is related to the 
 
              plantaris tendon injury as opposed to other medical 
 
              problems that she has.
 
         
 
              Q  Sure.  Would you expect that the pain that she has, 
 
              in light of the time that has gone by, that that would, 
 
              given reasonable medical judgment, would be one that 
 
              would be long term or permanent basis?
 
         
 
              A  I think the pain, swelling, and limitation she has 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              in her leg is permanent and will not likely change with 
 
              time.
 
         
 
         (Ex. 22, pp. 8-9, ll. 20-20)
 
         
 
              Dr. Smith testified that not all of claimant's leg problems 
 
         were attributable to her work injury.  She had some abnormal neu
 
         ropathies which Dr. Smith attributed to claimant's diabetes  (Ex. 
 
         2, p. 16, ll. 6-7).  However, Dr. Smith determined claimant's 
 
         additional pain and swelling were over and above the diabetes.
 
         
 
                                conclusions of law
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 31, 1988, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardward, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and circum
 
         stances.  Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965).  The 
 
         expert medical evidence must be considered with all other evi
 
         dence introduced bearing on the causal connection between the 
 
         injury and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  In regard to medical testimony, the commissioner is 
 
         required to state the reasons on which testimony is accepted or 
 
         rejected.  Sondag, 220 N.W.2d 903 (1974).
 
         
 
              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, 220 N.W.2d 903 (Iowa 1974).  However, the expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may be affected by 
 
         the completeness of the premise given the expert and other sur
 
         rounding 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).
 
         
 
              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 disabil
 
         ity 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).
 
         
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              Injuries arising out of risks or conditions personal to the 
 
         claimant do not arise out of the employment unless the employment 
 
         contributes to the risk or aggravates the injury.  When the 
 
         employee has a preexisting physical weakness or disease, this 
 
         employment contribution may be found either in placing the 
 
         employee in a position which aggravates the effects of a fall due 
 
         to the idiopathic condition, or in precipitating the effects of 
 
         the condition by strain or trauma.  Larson Workmen's Compensation 
 
         Law, section 12.00.
 
         
 
              In the case before the undersigned, claimant has established 
 
         by a preponderance of the evidence that she has sustained a per
 
         manent partial disability to her left lower extremity which in 
 
         part resulted from her work injury.  In the prehearing report, 
 
         the parties stipulated that in the event permanency was found, 
 
         claimant's disability was a scheduled member disability to her 
 
         left lower extremity.  Claimant had sustained a rupture to her 
 
         plantaris tendon.  Dr. Smith testified that such ruptures gener
 
         ally resolve themselves within three months.  He assessed a 
 
         0 percent impairment rating.  However, he acknowledged that as of 
 
         the time of his last examination of claimant, she still had pain 
 
         and swelling in her left leg.  The pain prevented claimant from 
 
         working.  Her left calf was larger than the right one.  Also, 
 
         claimant, at the time of the hearing was still using a cane to 
 
         assist her in her walking.  While the undersigned did not observe 
 
         claimant walking with a cane, the undersigned noted claimant 
 
         walked in a very labored fashion.  Claimant was unable to return 
 
         to her position as housekeeping supervisor.  Part of the reason 
 
         was due to claimant's plantar tendon pain.  Part of claimant's 
 
         inability to return to her former position was due to her 
 
         diabetic condition.
 
         
 
              No physician related claimant's diabetes to her work injury.  
 
         Claimant alleged that Dr. Ridgley, in the final sentence of his 
 
         September 15, 1988 letter, causally related her diabetes to her 
 
         fall.  However, this deputy does not interpret the final sentence 
 
         in the same manner as claimant.
 
         
 
              Claimant's diabetes was not the result of her fall.  She had 
 
         been a borderline diabetic for nearly 10 years prior to her work 
 
         injury.  She had not controlled her diabetes by her diet.  For 
 
         many years she was grossly overweight.  She had experienced other 
 
         prior health problems, including vision problems, which may have 
 
         been the result of diabetes.  However, claimant's condition as a 
 
         diabetic may have prevented claimant from recovering from her 
 
         ruptured tendon.  The evidence is not clear in this respect.  
 
         Nevertheless, it is evident to the undersigned that claimant had 
 
         multiple left leg problems at hearing time, and that according to 
 
         her treating physician, the problems were above and beyond her 
 
         diabetic condition.  Therefore, it is the determination of the 
 
         undersigned that claimant has sustained a 20 percent permanent 
 
         partial disability to the left leg.  This disability is causally 
 
         related to her work injury of October 31, 1988.  Claimant is 
 
         entitled to 44 weeks of permanent partial disability benefits at 
 
         the corrected stipulated rate of $221.87 per week.
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              The next issue under determination is whether claimant is 
 
         entitled to healing period benefits.
 
         
 
              Section 85.34(1), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered perma
 
         nent partial disability until (1) he has returned to work; (2) is 
 
         medically capable of returning to substantially similar employ
 
         ment; or (3) has achieved maximum medical recovery.  The indus
 
         trial commissioner has recognized that healing period benefits 
 
         can be interrupted or intermittent.  Willis v. Lehigh Portland 
 
         Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner 
 
         Decisions 485 (1984).
 
         
 
              Under Iowa Code section 85.34(1), healing period is compens
 
         able beginning on the date of injury and continuing until the 
 
         employee has returned to work, it is medically indicated that 
 
         significant improvement from the injury is not anticipated, or 
 
         until the employee is medically capable of returning to substan
 
         tially similar employment, whichever first occurs.
 
         
 
              In this case, it was determined by Dr. Smith that as of 
 
         August 11, 1989, claimant was unable to return to her previous 
 
         position with defendant-employer.  In his letter of September 27, 
 
         1989, Dr. Smith determined her plantaris tendon rupture had 
 
         healed by then.  He also wrote that:
 
         
 
              At this point, it would be my opinion that her multi
 
              tude of medical problems are more contributing to her 
 
              inability to work than her left leg injury, although it 
 
              certainly could be argued that she was working up until 
 
              the time that she injured her leg and is not able to do 
 
              so at this time.
 
         
 
              Dr. Smith later modified his opinion when he said, "The pain 
 
         in her leg has prohibited her from getting back to doing her pre
 
         vious job and you know, any job for that matter."  (Ex. 2, p. 9, 
 
         ll. 7-9)
 
         
 
              As of August 11, 1989, claimant was medically incapable of 
 
         returning to employment substantially similar to the employment 
 
         in which she was engaged at the time of the injury.  Claimant was 
 
         in the healing period from September 1, 1988 to September 5, 
 
         1988, from September 10, 1988 to December 4, 1988, and December 
 
         16, 1988 to August 11, 1989.  As of August 11, 1989, claimant's 
 
         permanent partial disability benefits commenced.  Claimant is 
 
         entitled to 47.143 weeks of healing period benefits.
 
         
 
              The final issue to address is whether claimant is entitled 
 
         to medical benefits pursuant to section 85.27.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                 For purposes of this section, the employer is 
 
              obliged to furnish reasonable services and supplies to 
 
              treat an injured employee, and has the right to choose 
 
              the care.  The treatment must be offered promptly and 
 
              be reasonably suited to treat the injury without undue 
 
              inconvenience to the employee.  If the employee has 
 
              reason to be dissatisfied with the care offered, the 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              employee should communicate the basis of such dissatis
 
              faction to the employer, in writing if requested, fol
 
              lowing which the employer and the employee may agree to 
 
              alternate care reasonably suited to treat the injury.  
 
              If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application 
 
              and reasonable proofs of the necessity therefor, allow 
 
              and order other care.  In an emergency, the employee 
 
              may choose the employee's care at the employer's 
 
              expense, provided the employer or the employer's agent 
 
              cannot be reached immediately.
 
         
 
              Claimant alleges she is entitled to payment for:
 
         
 
                                                                Defendants
 
                                                                   Paid
 
         
 
                     Wilfrido Calderon              $  76.13   $   75.00
 
                     Orthopaedic & Reconstructive
 
                       Surgery Assoc. P.C.            803.00      416.00
 
                     Walgreens Prescriptions
 
                       for glucotrol                  108.21
 
                     Syam P. Kilaru, M.D.             225.00
 
                     Heritage Medical Equipment
 
                       (blood glucose monitor)        135.00
 
                     E. T. Shivapour, M.D.            650.00      695.00
 
         9-15-88     Thomas K. Jones
 
                        venous exam                   100.00
 
         6-30-89     Shan Bedi, M.D.                  525.00
 
                     Garrett V. Ridgley, Jr.           50.00      248.00
 
         9-10-88     Burlington Medical Center      5,979.55    5,711.88
 
                                                  (151.63 due)
 
         11-9-88     Burlington Medical Center        317.70
 
                     Todd C. Sommer, D.P.M.            24.00
 
         
 
              It was not clearly presented to the undersigned what each 
 
         bill represented.  Given the evidence presented, the undersigned 
 
         determines defendants are responsible for the payment of:
 
         
 
         
 
         Wilfrido Calderon, M.D.
 
         Orthopedic & Reconstructive Surgery Assoc. P.C.
 
         E. T. Shivapour, M.D.
 
         Thomas K. Jones, M.D.
 
         Garrett V. Ridgley, Jr., M.D.
 
         Burlington Medical Center
 
         Radiology Services
 
         C.R.S. Fortis
 
         Butter County Hospital
 
         Anthony Lazer, M.D.
 
         
 
              Other medical bills submitted do not appear to be causally 
 
         related to the work injury.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay forty-four (44) weeks of permanent 
 
         partial disability benefits commencing on August 11, 1989, at the 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         corrected stipulated rate of two hundred twenty-one and 87/l00 
 
         dollars ($221.87) per week.
 
         
 
              Defendants are to pay forty-seven point one-four-three 
 
         (47.143) weeks of healing period benefits from September 1, 1988 
 
         to September 5, 1988, from September 10, 1988 to December 4, 
 
         1988, from December 16, 1988 to August 11, 1989 at the corrected 
 
         stipulated rate of two hundred twenty-one and 87/l00 dollars 
 
         ($221.87) per week.
 
         
 
              Defendants are responsible for the payment of medical bills 
 
         as aforementioned.
 
         
 
              Interest shall be paid pursuant to section 85.30.
 
         
 
              Defendants are responsible for costs pursuant to rule 343 
 
         IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Rd
 
         Box 1087
 
         Keokuk  IA  52632
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E 6th St
 
         P O Box 339
 
         Davenport  IA  52805
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed May 16, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     Before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY McCAMMANT,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 896589
 
            SERVICE MASTER,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE CO.,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant sustained a 20 percent permanent partial disability 
 
            to her left lower extremity.