BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            LARRY C. GILLELAND,   
 
                        
 
                 Claimant,  
 
                        
 
            vs.         
 
                                                 File No. 896974
 
            ARMSTRONG RUBBER COMPANY,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 23, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            The decision was based upon the evidentiary record made 
 
            before the deputy industrial commissioner.  Evidence that 
 
            claimant attempts to introduce in his appeal brief is not to 
 
            be considered.  An attempt to introduce evidence by means of 
 
            an appeal brief is not permitted.  See rules 343 IAC 4.28 
 
            and 343 IAC 4.31.
 
            An administrative agency cannot decide issues of statutory 
 
            validity.  Salsbury Laboratories v. Iowa, ETC, 276 N.W.2d 
 
            830, 836 (Iowa 1979)
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Larry C. Gilleland
 
            1798 Hwy 206
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Lacona, Iowa 50139
 
            CERTIFIED AND REGULAR MAIL
 
            
 
            Mr. Terry L. Monson
 
            Attorney at Law
 
            100 Court Ave., Ste 600
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed October 28, 1992
 
                                              Byron K. Orton
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            LARRY C. GILLELAND,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 896974
 
            ARMSTRONG RUBBER COMPANY,       
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            TRAVELERS INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant sustained an injury to his right lower extremity on 
 
            April 15, 1987.  Defendants admitted liability.  Claimant 
 
            contends that he experienced back problems due to gait 
 
            abnormality association with his leg fracture.  Defendants 
 
            deny the same.  The medical evidence does not support 
 
            claimant's contentions and his treating physician indicates 
 
            that he did not complain of back discomfort until at least 
 
            two years following his fracture.  He noted that if in fact 
 
            claimant had a preexisting back condition or a back injury, 
 
            it is usually aggravated when the gate is most abnormal, and 
 
            that is usually during the healing phase of the fracture.  
 
            Claimant was released to return to work in February 1988 and 
 
            performed his pre-injury job without limitation or 
 
            restrictions until he voluntarily retired in September 1990.
 
            Claimant has not met his burden of proof and failed to show 
 
            by a preponderance of the evidence that he sustained back, 
 
            neck and hip problems as a result of his original injury.
 
            Claimant challenges the constitutionality of Iowa Code 
 
            section 85.34(2)(a-t).  An administrative agency cannot 
 
            decide issues of statutory validity.  Salsbury Laboratories 
 
            v. Iowa, ETC, 276 N.W.2d 830, 836 (Iowa 1979).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY C. GILLELAND,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 896974
 
            ARMSTRONG RUBBER COMPANY,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Gilleland, claimant, against Armstrong Rubber Company, 
 
            employer, and Travelers Insurance Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on April 
 
            15, 1987.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on October 15, 
 
            1991.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            joint exhibits 1-12 and testimony from the following 
 
            witnesses:  Larry Gilleland, Bonnie Lee Gilleland, Richard 
 
            Hartsuck and Joyce Kain.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing order and the oral 
 
            stipulations of the parties at the hearing, the following 
 
            issues are submitted for resolution:
 
            
 
                 1.  Whether claimant sustained a back, hip and neck 
 
            injury which arose out of and in the course of his 
 
            employment with employer on April 15, 1987;
 
            
 
                 2.  Whether these injuries are a cause of temporary and 
 
            permanent disability and, if so, the extent thereof;
 
            
 
                 3.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 for treatment of these 
 
            injuries; and,
 
            
 
                 4.  Whether the statute pertaining to scheduled member 
 
            injuries (85.34(2)(a-t)) is unconstitutional.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, and 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on November 26, 1940, and completed 
 
            two years of high school.  He received his GED certificate 
 
            in 1958 while serving in the United States Navy.  He worked 
 
            for employer from April 24, 1961, until his retirement on 
 
            September 17, 1990.  The last 14 years he was a supervisor 
 
            in the tire division.  His performance appraisals indicate 
 
            that he was an excellent supervisor and received yearly 
 
            raises (Exhibit 7).
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on April 15, 1987, claimant sustained an injury at work 
 
            which resulted in a fracture of the right tibia and proximal 
 
            fibula.  He underwent surgery on April 16, 1987, with 
 
            placement of an intramedullary rod.  He testified he 
 
            returned to work three months post-surgery and initially did 
 
            paperwork and then went back on the line.
 
            
 
                 Claimant's treating physician and surgeon was Marshall 
 
            Flapan, M.D.  Office notes dated December 1, 1987, indicate 
 
            x-ray evidence of healed fractures.  On January 6, 1988, Dr. 
 
            Flapan surgically removed the rod from claimant's right 
 
            tibia.  A follow-up examination on January 18, 1988, shows 
 
            that he walked with a good gait and had good motion in his 
 
            knee and ankle.  He was advised to weight bear as tolerated 
 
            using crutches.  On February 22, 1988, Dr. Flapan released 
 
            him to return to work.  A follow-up examination on June 16, 
 
            1988 states that "[h]e is getting along well, has been 
 
            working full time and unrestricted.  He complains of a 
 
            tendency for his leg to swell and some soreness with 
 
            activity on his feet."  (Ex. 1. page 4)  On examination, Dr. 
 
            Flapan observed that "[c]ontours of the right lower 
 
            extremity appear normal.  He has prominence in the region of 
 
            the scar in the patellar tendon.  Good motion is present at 
 
            his ankle."  (Ex. 1, p. 4)
 
            
 
                 On December 19, 1988, claimant presented to Dr. Flapan 
 
            with complaints of chronic aching sensation in the right 
 
            knee and leg, especially at night.  On examination, a full 
 
            range of motion of the right knee and ankle was noted.  He 
 
            had some slight tenderness of the lateral joint line but no 
 
            medial-lateral instability on valgus and varus stress of the 
 
            knee.  X-rays of the right knee were within normal limits.  
 
            X-rays of the right tibia showed fractures to be healed 
 
            without complication.  Surgical intervention was not 
 
            recommended (Ex. 1, p. 5).
 
            
 
                 On February 1, 1990, claimant was reexamined by Dr. 
 
            Flapan who noted in progress notes that he has gotten along 
 
            well since removal of the intramedullary rod from his right 
 
            tibia.  At this time, claimant presented with complaints of 
 
            "some discomfort in his back radiating to this [sic] right 
 
            hip, down the posterior aspect of his right thigh, achiness 
 
            in his right tibial area and some tingling in his entire 
 
            right foot."  On examination he was noted to have good range 
 
            of back motion and no detectable weakness of any muscle 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            groups in the lower extremity.  Dr. Flapan felt that 
 
            claimant's symptoms were suggestive of right sciatica (Ex. 
 
            l, p. 5 & 6).
 
            
 
                 In the course of the May 24, 1990 examination, claimant 
 
            complained to Dr. Flapan that he experienced discomfort in 
 
            his right lower extremity from his hip down to his toes.  He 
 
            stated his right knee gave out on him.  A bone scan was 
 
            ordered to determine the ideology of his right lower 
 
            extremity and back complaints.  It showed some diffused 
 
            activity in the tibia commensurate with his previous 
 
            fracture in the intramedullary rodding.  No other 
 
            abnormalities in the bone scan were noted.  However, since 
 
            his symptoms were suggestive of lumbar stenosis with 
 
            neurogenic claudication, an MRI of the lumbar spine was 
 
            ordered (Ex. 1, pp. 6-7).
 
            
 
                 On October 5, 1990, claimant saw Jerome G. Bashara, 
 
            M.D., for an independent medical examination.  Claimant 
 
            related to Dr. Bashara that he experienced low back pain and 
 
            generalized aching at the time of the injury and his 
 
            symptoms became worse due to the way he ambulated as a 
 
            result of his right leg fracture.  He also stated that an 
 
            MRI examination was not authorized by workers' compensation 
 
            and therefore never performed.  Dr. Bashara diagnosed mild 
 
            residuals as a result of right tibia and fibula fractures 
 
            and recommended that claimant refrain from prolonged 
 
            standing or walking.  He felt assembly line work was not 
 
            indicated.  He gave claimant a 10 percent permanent partial 
 
            physical impairment of the right lower extremity related to 
 
            his fractures.  He deferred assessment of his back pending 
 
            further diagnostic testing.  An MRI scan of the lumbar spine 
 
            was performed and after reviewing the results, Dr. Bashara 
 
            indicated they showed a mild bulging centrally which is 
 
            non-compressive at L4-5 level.  He then gave claimant a 
 
            three percent permanent partial physical impairment to the 
 
            body as a whole (Ex. 5).
 
            
 
                 On November 16, 1990, Dr. Bashara reported as follows:
 
            
 
                 It is my opinion that the patient's back condition 
 
                 was brought on and then aggravated by his gait 
 
                 abnormality which was directly related to his leg 
 
                 injury which he sustained in April of 1987.
 
            
 
                 We note that we have no history of any prior back 
 
                 difficulties and he had a definite gait 
 
                 abnormality following the leg injury.
 
            
 
            (Ex. 5, p. 7)
 
            
 
                 Claimant testified that he treated with Robert Jones, 
 
            M.D., on two or three occasions for problems related to his 
 
            back.  The record contains no medical records from Dr. 
 
            Jones.  However, Dr. Flapan notes on January 15, 1991, that 
 
            Dr. Jones gave claimant two epidural steroid injections for 
 
            treatment of his bulging disc and right sciatica.  Because 
 
            of claimant's persistent right knee complaints, Dr. Flapan 
 
            ordered an arthroscopic evaluation.  This was performed on 
 
            February 13, 1991, at Mercy Hospital.  It showed a tear of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the right lateral meniscus and a partial right lateral 
 
            meniscectomy was performed (Ex. l, pp. 8-9).
 
            
 
                 Dr. Flapan saw claimant for follow-up evaluation on 
 
            April 1, 1991.  His complaints were referable to discomfort 
 
            in his right knee and leg.  Because of these complaints, he 
 
            was referred for physical therapy.  He underwent one therapy 
 
            session and the next night he had a heart attack.  On May 
 
            13, 1991, Dr. Flapan recommended resuming physical therapy 
 
            on the right knee for quadriceps rehabilitation and 
 
            rehabilitation of the right lower extremity (Ex. l, pp. 
 
            10-13).
 
            
 
                 On April 22, 1991, Dr. Flapan stated that "[i]t is my 
 
            opinion that Larry Gilleland's present impairment rating to 
 
            his knee and leg is 20% of the lower extremity."  He further 
 
            stated that:
 
            
 
                 Mr. Gilleland's present impairment rating to his 
 
                 back is unknown at this time.  You may obtain 
 
                 further information from his back doctor, Dr. 
 
                 Robert Jones, neurosurgeon.  He has had an MRI 
 
                 showing degenerative disc disease, and he has had 
 
                 some symptoms suggestive of right sciatica 
 
                 secondary to a lumbar radicular compression.
 
            
 
            (Ex. 4)
 
            
 
                                conclusions of law
 
            
 
                 Defendants have admitted liability as to claimant's 
 
            right lower extremity including permanency as it relates to 
 
            his tibia, fibula and right knee.  They have denied that 
 
            claimant's back and neck problems are in any way related to 
 
            his April 15, 1987 leg injury.  Claimant has the burden of 
 
            proof.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on April 15, 
 
            1987, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an occupa
 
                 tional disease under the Workmen's Compensation 
 
                 Act, yet an injury to the health may be a personal 
 
                 injury.  [Citations omitted.]  Likewise a personal 
 
                 injury includes a disease resulting from an 
 
                 injury....The result of changes in the human body 
 
                 incident to the general processes of nature do not 
 
                 amount to a personal injury.  This must follow, 
 
                 even though such natural change may come about 
 
                 because the life has been devoted to labor and 
 
                 hard work.  Such result of those natural changes 
 
                 does not constitute a personal injury even though 
 
                 the same brings about impairment of health or the 
 
                 total or partial incapacity of the functions of 
 
                 the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 15, 
 
            1987, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 In Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 
 
            187 (Iowa 1985), the Iowa Supreme Court stated at 192:
 
            
 
                 We think a rule of law would be unwise that a 
 
                 treating physician's testimony should be given 
 
                 greater weight than that of a later physician who 
 
                 examines the patient in anticipation of 
 
                 litigation.  The employer should and does have the 
 
                 right to develop the facts as to a latter 
 
                 physician's employment in connection with 
 
                 litigation, his examination at a later date and 
 
                 not when the injuries were fresh, his arrangement 
 
                 as to compensation, the extent and nature of his 
 
                 examination, his education, experience, training, 
 
                 and practice, all other factors which bear upon 
 
                 the weight and value of his testimony.  The 
 
                 claimant may similarly develop such information as 
 
                 to the treating physician.  Both parties may press 
 
                 all of this information to the attention of the 
 
                 fact finder, as either supporting or weakening the 
 
                 physician's testimony and opinion.  All these 
 
                 factors, however, go to the value of the 
 
                 physician's testimony as a matter of fact, not as 
 
                 a matter of law.
 
            
 
                 Claimant alleges that his back problems were brought on 
 
            by the gait abnormality associated with his leg fracture on 
 
            April 15, 1987.  However, a careful review of Dr. Flapan's 
 
            progress notes indicate otherwise.  Dr. Flapan has been 
 
            claimant's treating physician and orthopedic surgeon since 
 
            April of 1987.  On January 18, 1988, he reported that 
 
            claimant "[w]alks with a good gait.  He has good motion in 
 
            his knee and ankle."  (Ex. 1, p. 3)  On December 29, 1990, 
 
            Dr. Flapan opined that:
 
            
 
                 I do not believe that Mr. Gilleland's back 
 
                 problems were brought on nor were they aggravated 
 
                 by the gait abnormality associated with his leg 
 
                 fracture.  His fracture healed uneventfully, and 
 
                 his gait quickly returned to normal.  As you can 
 
                 see from my notes, he did not complain of back 
 
                 discomfort until at least two years following his 
 
                 fracture.  It has been my experience that when 
 
                 there is a pre-existing back condition or a back 
 
                 injury, it is usually aggravated most commonly 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 when the person's gait is most abnormal, and that 
 
                 is during the healing phase of the fracture.  It 
 
                 does not occur two years after the fracture.
 
            
 
                 It does not occur two years after the fracture.  
 
                 Likewise Mr. Gilleland's neck problems are in no 
 
                 way related to his leg injury.  Mr. Gilleland had 
 
                 a good result following the intramedullary rodding 
 
                 of his fracture, and his leg has healed 
 
                 uneventfully.
 
            
 
            (Ex. 3)
 
            
 
                 Dr. Flapan's opinion is contradicted by Dr. Bashara who 
 
            saw the claimant on one occasion and only for the purpose of 
 
            an independent medical examination.  Dr. Bashara never 
 
            treated claimant and his opinion as to causation is based on 
 
            claimant's subjective complaints which did not surface until 
 
            February 1, 1990, two years following his fracture.  Dr. 
 
            Flapan's opinion is entitled to more significant weight and 
 
            consideration as to the issue of causation.
 
            
 
                 It is noted that claimant worked without incident or 
 
            complaints as to back, neck and hip pain from February 1988 
 
            through February 1, 1990, when he first manifested to Dr. 
 
            Flapan that he had some discomfort in his back.  
 
            Nevertheless, he made no request that his employer 
 
            accommodate his symptomology.  Claimant retired from the 
 
            company on September 17, 1990, due to non-medical reasons.
 
            
 
                 In view of the above analysis, claimant is not entitled 
 
            to additional workers' compensation benefits and takes 
 
            nothing further from these proceedings.  This issue is 
 
            dispositive of all other issues in this case.
 
            
 
                 In regard to claimant's challenge of the 
 
            constitutionality of the workers' compensation statute, this 
 
            issue is not within the subject matter jurisdiction of this 
 
            agency and therefore, the undersigned will not address 
 
            claimant's arguments in this regard.
 
            
 
                                      order
 
            
 
                 Therefore, it is ordered:
 
            
 
                 1.  Claimant takes nothing from these proceedings.
 
            
 
                 2.  Defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.  
 
            
 
            
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            Saddlery Bldg  STE 200
 
            309 Court Ave
 
            Des Moines  IA  50309
 
            
 
            Mr. Terry L. Monson
 
            Attorney at Law
 
            100 Court Ave  STE 600
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed October 23, 1991
 
                           JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            LARRY C. GILLELAND,	      :
 
                      		      :
 
                 Claimant, 	      :
 
		                      :
 
		            vs.       :
 
        		              :         File No. 896974
 
            ARMSTRONG RUBBER COMPANY, :		
 
		                      :      A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :         D E C I S I O N
 
		            and       :
 
                		      :
 
            TRAVELERS INSURANCE CO.,  :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.   	      :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant sustained an injury to his right lower extremity on 
 
            April 15, 1987.  Defendants admitted liability.  Claimant 
 
            contends that he experienced back problems due to gait 
 
            abnormality association with his leg fracture.  Defendants 
 
            deny the same.  The medical evidence does not support 
 
            claimant's contentions and his treating physician indicates 
 
            that he did not complain of back discomfort until at least 
 
            two years following his fracture.  He noted that if in fact 
 
            claimant had a preexisting back condition or a back injury, 
 
            it is usually aggravated when the gate is most abnormal, and 
 
            that is usually during the healing phase of the fracture.  
 
            Claimant was released to return to work in February 1988 and 
 
            performed his pre-injury job without limitation or 
 
            restrictions until he voluntarily retired in September 1990.
 
            Claimant has not met his burden of proof and failed to show 
 
            by a preponderance of the evidence that he sustained back, 
 
            neck and hip problems as a result of his original injury.
 
            Defendants challenge the constitutionality of Iowa Code 
 
            section 85.34(2)(a-t).  A determination in this regard is 
 
            not within the subject matter jurisdiction of this agency.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            SHARON VAN ZANDT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 897051 & 936707
 
            FAWN ENGINEERING,             :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIDELITY AND CASUALTY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND,           :
 
                                          :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Sharon Van Zandt against her employer, Fawn 
 
            Engineering, the employer's insurance carrier and the Second 
 
            Injury Fund of Iowa.  File number 897051 deals with an 
 
            injury to Sharon's right hand that occurred when it was 
 
            caught in a machine.  For that injury she seeks three days 
 
            of healing period compensation, determination of permanent 
 
            partial disability compensation and payment for the cost of 
 
            an independent medical examination.  
 
            
 
                 File number 936707 deals with a cumulative trauma 
 
            injury to the left hand or arm.  As a result of that injury 
 
            Sharon seeks compensation for permanent partial disability 
 
            and also makes claim against the Second Injury Fund of Iowa.  
 
            The rate of compensation is disputed in both cases.  In both 
 
            files there is a dispute of whether the scheduled injury is 
 
            to the hand or to the arm.  The Second Injury Fund contends 
 
            that there is but one injury, rather than two, because the 
 
            overuse injury of the left hand would not have occurred if 
 
            the right hand had not been injured.  Claimant seeks to 
 
            recover the expenses of an independent medical examination 
 
            in both files.
 
            
 
                 The case was heard at Des Moines, Iowa, on January 31, 
 
            1994.  The record consists of testimony from Sharon Van 
 
            Zandt and Richard Redburn.  The record also contains 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's exhibits A, B, C and D and employer's exhibit 1.  
 
            
 
                     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 Sharon Van Zandt is a 44-year-old married woman who 
 
            dropped out of high school in the tenth grade but later 
 
            obtained a GED in 1979.  She has three children who, at the 
 
            time of her injury in September 1988, were ages 17, 14 and 
 
            11.  
 
            
 
                 Sharon's work history and other education includes 
 
            nurse's aide training in approximately 1980 and 
 
            approximately two years working in a nursing home.  She has 
 
            worked as a waitress.  She worked at Iowa Assembly in 
 
            Osceola where she performed a number of different activities 
 
            over a period of three and one-half to four years.  She 
 
            began her employment with Fawn Engineering in 1988.
 
            
 
                 On September 21, 1988, Sharon was running a notcher 
 
            when the machine malfunctioned and struck the middle finger 
 
            on her right hand, amputating part of the finger.  Sharon's 
 
            medical care for the injury was provided by Mark Reece, 
 
            M.D., a plastic surgeon.  The recovery from the injury was 
 
            complicated by the development of reflex sympathetic 
 
            dystrophy affecting the middle finger, ring finger and the 
 
            little finger of Sharon's right hand.
 
            
 
                 Sharon underwent extensive therapy and was seen by a 
 
            number of other physicians but the dystrophy did not 
 
            resolve.
 
            
 
                 Sharon has obtained impairment ratings for her right 
 
            hand.  Dr. Reece found her to have a 100 percent impairment 
 
            of her middle finger, and 89 percent impairment of the ring 
 
            finger and a 71 percent impairment of the little finger.  He 
 
            equated this to 33 percent of the hand, 30 percent of the 
 
            upper extremity or 18 percent of the whole person.  He then 
 
            went on to add for loss of grip strength and measured 
 
            causalgia for pain, finding her to have an 87 percent 
 
            impairment of the upper extremity.  (exhibit 22, page 28; 
 
            ex. 28, pp. 38-39).  Dr. Reece stated that he used the AMA 
 
            guidelines without designating which edition.
 
            
 
                 The employer eventually changed Sharon's care to Kevin 
 
            F. Smith, M.D.  Dr. Smith eventually performed impairment 
 
            ratings on Sharon's right hand.  He found her to have a 78 
 
            percent of her middle finger, an amount which he found 
 
            equivalent to 16 percent of the hand, 14 percent of the 
 
            upper extremity or 8 percent of the body as a whole.  (ex. 
 
            48, p. 61; ex. 50, p. 68).  For some reason, which is 
 
            unexplained, Dr. Smith did not include his impairment 
 
            findings regarding the ring and little finger shown as 
 
            exhibit 48, page 62, when he issued the report dated 
 
            November 15, 1989, which is found at exhibit 50, pages 
 
            64-68.  Dr. Smith also found a 39 percent impairment of the 
 
            ring finger and a 35 percent impairment of the little 
 
            finger.  Dr. Smith then combined the impairments of the ring 
 
            and little fingers rather than adding them as is provided in 
 
            the AMA Guides, third edition revised, page 28.  
 
            Accordingly, Dr. Smith's impairment ratings for claimant's 
 
            right hand are 78 percent of the middle finger which is 
 
            equivalent to 16 percent of the hand, 39 percent of the ring 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            finger which is equivalent to 4 percent of the hand and 45 
 
            percent of the little finger which is equivalent to 5 
 
            percent of the hand.  When added in accordance with the 
 
            directives in the AMA guidelines, his computations compute 
 
            to a 25 percent impairment of the right hand.  
 
            
 
                 The record of this case shows beyond any doubt that 
 
            Sharon has a loss of use of her middle, ring and little 
 
            fingers as a result of the reflex sympathetic dystrophy 
 
            which was caused by the original traumatic injury to the 
 
            right middle finger.  As previously indicated, the record 
 
            contains no indication as to why Dr. Smith rated only the 
 
            middle finger in his report of November 15, 1989.  (ex. 50).  
 
            Perhaps he was only asked to provide a rating for the middle 
 
            finger.  Perhaps it is because it was the only one that was 
 
            originally traumatized.  One can only speculate.  
 
            Nevertheless, exhibit 48, pages 61 and 62, are the 
 
            worksheets showing the data used by Dr. Smith to compute his 
 
            impairment rating and it is clear that his rating of 16 
 
            percent of the hand comes only from the middle finger data 
 
            found at page 61 and does not include the data for the ring 
 
            and little fingers shown at page 62.  Dr. Smith's data 
 
            clearly shows a 25 percent impairment of the right hand. 
 
            
 
                 Claimant obtained an independent medical examination 
 
            from Martin S. Rosenfeld, D.O.  Dr. Rosenfeld assigned a 23 
 
            percent impairment rating of the right upper extremity.  
 
            (ex. 65, p. 86).  Using table 2 at page 16 of the AMA 
 
            Guides, third edition revised, 23 percent of the upper 
 
            extremity is equivalent to 26 percent impairment of the 
 
            hand.
 
            
 
                 From a review of the record the evidence does not show 
 
            Sharon's impairment to extend beyond her hand into her arm.  
 
            Clearly it is not limited to the three fingers and does 
 
            extend into the hand.  There is no way for the dystrophy to 
 
            affect all three fingers without also involving the hand.  
 
            It is found that Sharon Van Zandt has experienced a 35 
 
            percent loss of use of her right hand as a result of the 
 
            September 21, 1988 traumatic injury.  The ratings from the 
 
            three physicians are not at large variance from each other.  
 
            When considering the claimant's loss of ability to use her 
 
            right hand for the functions for which individuals typically 
 
            use their hands, a 35 percent loss of use is a conservative 
 
            assessment.  Her middle, ring and little fingers have lost 
 
            motion and also have the causalgia type of pain sensitivity 
 
            commonly seen with reflex sympathetic dystrophy.  It is 
 
            practically as though she has lost the use of those three 
 
            affected fingers.  The principal remaining function of her 
 
            hand is provided by her thumb and first finger.
 
            
 
                 As a result of performing one-handed work due to the 
 
            inability to use her right hand, Sharon developed an overuse 
 
            syndrome affecting her left hand.  It was thought that the 
 
            affliction was perhaps carpal tunnel syndrome but when the 
 
            employer-selected physician, Michael Makowsky, M.D., 
 
            suggested performing the EMG tests used to diagnose the 
 
            condition, the defendant employer and insurance carrier 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            refused to authorize those tests and changed Sharon's care 
 
            to Dr. Smith.  It is therefore unable to be determined with 
 
            any reasonable degree of certainty whether or not Sharon has 
 
            any nerve entrapment affecting her left hand and wrist.  
 
            Such nerve entrapment is common, however, in overuse 
 
            syndrome conditions.
 
            
 
                 Dr. Smith has determined that Sharon has a 3 percent 
 
            impairment of her left hand as a result of the February 28, 
 
            1989 injury.  (ex. 57, p. 75).  He recommended no particular 
 
            activity restrictions, however.  Dr. Rosenfeld found that 
 
            claimant exhibited no evidence of permanent impairment in 
 
            her left hand although she had overuse syndrome and stated 
 
            that it would probably be necessary for her to change jobs 
 
            in order to avoid repetitive use of the hand.  (ex. 66, p. 
 
            88).  Interestingly, when Sharon was seen at vocational 
 
            rehabilitation she was considered to be severely 
 
            handicapped.  (ex. 67, p. 93).  The fact that Sharon must 
 
            avoid repetitive use of her left hand clearly demonstrates a 
 
            loss of use of the hand.  While the loss of use of Sharon's 
 
            left hand is quite small in comparison to her right, there 
 
            is, nevertheless, a loss of use.  It is determined that the 
 
            3 percent rating provided by Dr. Smith is an accurate 
 
            assessment of Sharon's loss of use of her left hand which 
 
            resulted from the February 28, 1989 cumulative trauma 
 
            injury.  
 
            
 
                 At the time of hearing Sharon remained employed by Fawn 
 
            Engineering earning the same level of wages as she was 
 
            earning at the time of both injuries.  There are some 
 
            positions in the plant that she is incapable of performing 
 
            due to her problems with her hands and those tend to be some 
 
            of the higher paying positions.  It appears as though Sharon 
 
            will be able to remain gainfully employed by Fawn 
 
            Engineering indefinitely without loss of actual earnings 
 
            though she does have some loss of upward mobility.  
 
            
 
                 Exhibit B, page 2 shows Sharon's actual earnings during 
 
            the 13 weeks proceeding the injury.  She worked 543 hours 
 
            which is an average of 41.77 hours per week.  Three of those 
 
            weeks show work hours of less than 40 hours per week, but 
 
            the record does not show the reason for those short work 
 
            weeks.  It is not known if it is due to claimant taking 
 
            personal absences, lack of work for all employees or some 
 
            other reason.  It cannot be determined as to whether or not 
 
            those weeks with less than 40 hours are  atypical.  The 
 
            record contains no showing of Sharon's earnings for the 13 
 
            weeks prior to the February 28, 1989 injury.  Exhibit C is 
 
            based upon the level of earnings shown in the first report 
 
            of injury.  Interestingly, when 40 hours per week are 
 
            computed at $7.92 per hour, the average weekly earnings are 
 
            $316.80.  Exhibit B, page 2 shows claimant's average weekly 
 
            earnings to have been $317.03.  For purposes of computing 
 
            the rate of compensation these both round to $317 per week.  
 
            It is noted that claimant's oldest daughter, Paula, had 
 
            dropped out of high school but was still under the age of 18 
 
            and living at home on September 21, 1988.  By February 28, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            1989, she had had her eighteenth birthday since her date of 
 
            birth is October 26, 1970.  She was no longer a student and 
 
            therefore no longer a person whom claimant could have 
 
            claimed as an exemption.
 
            
 
                 Dr. Rosenfeld's charges for the two independent medical 
 
            examinations are $400 and $600 respectively.  In the hearing 
 
            report submitted by counsel it was stipulated that his 
 
            charges were fair and reasonable.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 As far as the rate of compensation is concerned, 
 
            section 85.61(3), (6) and (9) provide that the employee's 
 
            spendable weekly earnings are based upon the gross earnings 
 
            and the number of exemptions which the person is entitled to 
 
            receive under the Internal Revenue Code.  It is the income 
 
            tax exemption status which is to be applied when determining 
 
            the rate of compensation.  Keeling v. Cedar Rapids Comm. 
 
            Sch., file number 891809 (App. Dec. February 26, 1993); 
 
            Sheriff v. Northwest Iowa Cooperative, file number 982896 
 
            (App. Dec. July 15, 1993).  Sharon's daughter, Paula, was 
 
            age 17 and therefore entitled to be claimed as an exemption 
 
            at the time of the September 21, 1988 injury.  Accordingly, 
 
            since Sharon was married, the rate of compensation for the 
 
            1988 injury is $217.21, the amount that was originally 
 
            determined by the insurance carrier.  With regard to the 
 
            1989 injury, the rate of earnings is the same, namely $317 
 
            per week, but since Paula turned age 18, Sharon was no 
 
            longer entitled to claim her as an exemption.  The rate is 
 
            therefore $212.75 per week for the 1989 injury. 
 
            
 
                 Sharon experienced a 35 percent loss of use of her 
 
            right hand as a result of the 1988 injury.  She has been 
 
            found to have a 3 percent loss of use of her left hand as 
 
            the result of the 1989 injury.  Both losses are permanent as 
 
            there is no probability that they will ever cease to exist.  
 
            Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 
 
            (1941).  There is precedent to indicate that reflex 
 
            sympathetic dystrophy, a condition similar to causalgia, 
 
            constitutes an injury that is not limited to the schedule 
 
            since it effects a system of the body.  Thompson v. Marshall 
 
            and Swift, Inc., file number 784394 (App. Dec. August 18, 
 
            1989); Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  The fact that the nerve block treatment 
 
            which Sharon received is an injection given in the neck, not 
 
            in the hand, is evidence to indicate that the problem 
 
            responsible for the condition is not necessarily limited to 
 
            the hand.  Nevertheless, when all the evidence in the record 
 
            is considered it has been found that the disability and loss 
 
            of use is in claimant's hands.  There is no objective 
 
            evidence showing any physiological or anatomical abnormality 
 
            at any point of her body other than in her hands.  
 
            Accordingly, the injuries in both files are scheduled hand 
 
            injuries which are to be compensated under the provisions of 
 
            Iowa Code section 85.34(2)(l).  This gives Sharon an 
 
            entitlement to 66.5 weeks of compensation for permanent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            partial disability of her right hand as a result of the 1988 
 
            injury and 5.7 weeks of compensation for permanent partial 
 
            disability of her left hand caused by the 1989 injury.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 Agency rule 343 IAC 2.4 provides that the Guides to the 
 
            Evaluation of Permanent Impairment published by the American 
 
            Medical Association is a guide for determining permanent 
 
            partial disabilities for scheduled losses.  They are only a 
 
            guide, however.  They exist in order to provide uniformity 
 
            and as a result they are necessarily somewhat arbitrary.  
 
            The Iowa Supreme Court has held that the term "loss of" used 
 
            in the statute means loss of use.  Moses v. National Union 
 
            C. M. Co., 194 Iowa 819, 184 N.W. 746 (1921).  When 
 
            assessing loss of use the evaluation is not limited to a 
 
            standardized guide.  Demonstrated difficulties may be 
 
            considered in order to determine that actual loss of use.  
 
            Soukup, 222 Iowa 272, 268 N.W. 598.  Use of the AMA Guides 
 
            is not the exclusive or statutorily preferred method.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
            The Guides do not expressly address reflex sympathetic 
 
            dystrophy as a factor, yet it clearly is disabling.  The 
 
            ratings of the fingers provided by Dr. Reece provide the 
 
            same entitlement as 35 percent of the hand.  Boyer v. Iowa 
 
            Pork Industries, file number 906819 (Arb. Decn. December 20, 
 
            1993).
 
            
 
                 The Second Injury Fund questions whether this situation 
 
            is two injuries or only one injury.  It is clear that there 
 
            is a causative factor between the 1988 injury and the 1989 
 
            injury.  That same causative factor would be true whenever 
 
            an injury to one hand causes a person to use the other hand, 
 
            even if the other is injured through an acute trauma or a 
 
            cumulative trauma situation.  In this case, as in most, 
 
            where the original injury in limited to one hand and an 
 
            injury is subsequently experienced by the other hand as a 
 
            result of trauma acting upon that other hand, are in fact 
 
            two injuries.  It is a situation somewhat similar to a 
 
            latent preexisting condition or weakness which is acted upon 
 
            by trauma.  In this case, if there had been no additional 
 
            trauma to Sharon's left hand, she would not have developed 
 
            the overuse or cumulative trauma injury condition in the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            left hand.  Clearly, this is not a case where there is 
 
            simultaneous injury to both hands or a case where the injury 
 
            to the right hand is the proximate cause of the injury to 
 
            the left.  The proximate cause in this case for the left 
 
            hand injury is the repetitive trauma that the left hand was 
 
            subjected to following the injury to the right hand.  
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 The fact that Sharon has remained employed by Fawn 
 
            Engineering does not mean that she has not experienced any 
 
            disability, in the industrial sense, as a result of her 
 
            injuries.  Vocational Rehabilitation characterized her as 
 
            severely handicapped.  (ex. 67, p. 93).  The situation that 
 
            exists has occurred only because Fawn Engineering has been a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            responsible employer and accommodated claimant's disability.  
 
            As indicated by the vocational rehabilitation assessment, 
 
            Sharon is severely handicapped.  Most assembly types of jobs 
 
            require good manual dexterity with both hands, a quality 
 
            which Sharon no longer possess.  She has quite severe 
 
            activity restrictions for her right hand as recommended by 
 
            Dr. Smith.  The only real restriction for her left hand is 
 
            that she avoid repetitive activity.  This restriction is not 
 
            expressly stated by the physicians, yet it is what has been 
 
            necessary for her to remain employed at Fawn Engineering and 
 
            it has been indicated as being desirable by Dr. Rosenfeld.  
 
            The record does not contain any reliable indication of 
 
            Sharon's propensity for further education or retraining.  
 
            Even if she were to do so, her right hand disability would 
 
            likely make her unable to perform jobs which required 
 
            significant keyboarding.  She has a very substantial loss of 
 
            access to jobs.  On the other hand, her employment situation 
 
            currently remains stable and reasonably secure.  
 
            Nevertheless, current trends in employment are such that 
 
            individuals are increasingly being required to change 
 
            employers, change jobs and retrain in order to remain 
 
            employed.  Sharon is a middle aged worker with 15 or 20 
 
            years until she reaches the range of normal retirement age.  
 
            It cannot be presumed that her current employment situation 
 
            will continue indefinitely throughout the remainder of her 
 
            working life.  The right to review-reopen expires in a few 
 
            years but the disability lasts a lifetime.  The only thing 
 
            that is certain about the future is that it brings 
 
            uncertainty.  In a case such as this where the claimant has 
 
            been able to remain employed through accommodations by the 
 
            employer but would be disadvantaged by being placed in the 
 
            competitive labor market it is appropriate to perform a 
 
            balancing which considers the extent of disability the 
 
            claimant would experience in a competitive labor market 
 
            setting against the likelihood that she will be forced into 
 
            such a setting.
 
            
 
                 In claimant's brief she asserts a 25 percent industrial 
 
            disability.  When considering all the material factors of 
 
            industrial disability that appears to be a reasonable 
 
            assessment.  A 25 percent industrial disability carries an 
 
            entitlement to 125 weeks of permanent partial disability 
 
            compensation.  The employer's liability for the left hand is 
 
            5.7 weeks.  The compensable value of the right hand injury 
 
            is 66.5 weeks.  This makes the liability of the Second 
 
            Injury Fund 52.8 weeks.  
 
            
 
                 Sharon seeks to recover an additional three days of 
 
            healing period compensation for the period running from 
 
            September 22, 1988 through September 24, 1988.  The form 2A 
 
            filed by the employer shows that weekly benefits were 
 
            commenced on September 25, 1988.  Since the injury produced 
 
            permanent disability, the healing period benefits should 
 
            have commenced as requested by the claimant.  [section 
 
            85.34(1)].  Claimant is therefore entitled to recover an 
 
            additional three-sevenths weeks of healing period 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            compensation on account of the 1988 injury.  
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980)
 
            
 
                 The record clearly shows claimant to have an 
 
            entitlement to recover the expenses of her independent 
 
            medical examinations with Dr. Rosenfeld.  The fee for the 
 
            examination associated with the 1988 injury is $400 while 
 
            the fee associated with the evaluation for the 1989 injury 
 
            is $600.  The employer is responsible for reimbursing 
 
            claimant for those expenses.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that on account of the 1988 
 
            injury in file number 897051, that Fawn Engineering 
 
            Corporation and Fidelity and Casualty Company pay Sharon Van 
 
            Zandt three-sevenths (3/7) weeks of compensation for healing 
 
            period at the rate of two hundred seventeen and 21/100 
 
            dollars ($217.21) per week commencing September 22, 1988.
 
            
 
                 It is further ordered that in file number 897051 the 
 
            employer Fawn Engineering Corporation and Fidelity and 
 
            Casualty Company pay Sharon Van Zandt sixty-six point five 
 
            (66.5) weeks of compensation for permanent partial 
 
            disability of the right hand at the rate of two hundred 
 
            seventeen and 21/100 dollars ($217.21) per week commencing 
 
            October 15, 1988.
 
            
 
                 It is further ordered that in file number 936707, based 
 
            upon the February 28, 1989 injury, Fawn Engineering and 
 
            Fidelity and Casualty Company pay Sharon Van Zandt five 
 
            point seven (5.7) weeks of compensation for permanent 
 
            partial disability of the left hand at the rate of two 
 
            hundred twelve and 75/100 dollars ($212.75) per week 
 
            commencing December 21, 1989.
 
            
 
                 It is further ordered that all unpaid accrued amounts 
 
            be paid to Sharon Van Zandt in a lump sum together with 
 
            interest pursuant to section 85.30 after credit is given for 
 
            all amounts previously paid.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 It is further ordered that in file number 936707, the 
 
            Second Injury Fund of Iowa pay Sharon Van Zandt fifty-two 
 
            point eight (52.8) weeks of compensation for permanent 
 
            partial disability at the rate of two hundred twelve and 
 
            75/100 dollars ($212.75) per week, payable in a lump sum 
 
            effective the date of this decision since the entire amount 
 
            thereof is past due and accrued.
 
            
 
                 It is further ordered that Fawn Engineering and 
 
            Fidelity and Casualty pay claimant the sum of one thousand 
 
            dollars ($1000) under the provisions of section 85.39 with 
 
            four hundred dollars ($400) attributable to file number 
 
            897051 and six hundred dollars ($600) attributable to file 
 
            number 936707.
 
            
 
                 It is further ordered that the costs of this proceeding 
 
            are assessed against the employer and insurance carrier.  
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by the agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Steven R. Cantonwine
 
            Mr. David Linquist
 
            Attorneys at Law
 
            Breakwater Bldg
 
            3708 75th St
 
            Des Moines, Iowa  50322
 
            
 
            Mr. Robert Wilson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
 
         
 
         
 
         
 
         
 
                                          1802 1803 1803.1 1808 3202
 
                                          Filed April 6, 1994
 
                                          Michael G. Trier
 
         
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
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         SHARON VAN ZANDT,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                          File Nos. 897051 & 936707
 
         FAWN ENGINEERING,   
 
                                            A R B I T R A T I O N
 
              Employer, 
 
                                              D E C I S I O N
 
         and       
 
                   
 
         FIDELITY AND CASUALTY,   
 
                   
 
              Insurance Carrier,  
 
                   
 
         and       
 
                   
 
         SECOND INJURY FUND, 
 
                   
 
              Defendants.    
 
         ----------------------------------------------------------------
 
         
 
         1802
 
         Claimant held entitled to recover healing period for the first 
 
         three days of disability which had never been paid to her.
 
         
 
         1803 1803.1 1808 3202
 
         Claimant sustained a traumatic injury to her right hand.  After 
 
         returning to one-handed work she developed an overuse syndrome 
 
         affecting her left hand.  Such was held to be two separate 
 
         injuries which invoked Second Injury Fund liability.  The Fund 
 
         had maintained that it was all one injury since the injury to the 
 
         right hand had caused the injury to the left.  
 
         AMA Guides discussed as being only a guide.  Claimant found to 
 
         have a 35 percent disability of the right hand and a 3 percent 
 
         disability of the left.  Claimant held to have a 25 percent 
 
         industrial disability despite the fact that she remained employed 
 
         with no loss of actual earnings.  That situation existed only as 
 
         a result of accommodation by her employer.  A balancing test was 
 
         prescribed in which the effect of placing her in the competitive 
 
         labor market was balanced against the likelihood that such an 
 
         event would occur.  Vocational rehabilitation had characterized 
 
         her as being severely handicapped.  
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN TANNER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 897166
 
            MID-STEP SERVICES, INC.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Karen Tanner, against her employer, Mid-Step 
 
            Services, Inc., and its insurance carrier, Aetna Casualty 
 
            and Surety Company, defendants.  The case was heard on May 
 
            2, 1990, in Sioux City, Iowa at the Woodbury County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant, the testimony of her spouse, Robert Tanner, and 
 
            the testimonies of James Photo, Deborah J. Simon and Larry 
 
            Dandoy.  Additionally, the record consists of joint exhibits 
 
            A-D.
 
            
 
                                      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 permanent partial disability benefits; 3) 
 
            whether claimant is entitled to medical benefits pursuant to 
 
            section 85.27; and, 4) whether defendants are entitled to 
 
            certain credits for benefits paid.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 At the time of the hearing, claimant was 47 years old.  
 
            She had quit school in the eighth grade so she could get 
 
            married.  Later she obtained her GED.  Claimant held a 
 
            variety of jobs prior to her employment with 
 
            defendant-employer on September 19, 1987.  She started as a 
 
            dietary aide and her duties included fixing plates, cleaning 
 
            dishes, maintaining the kitchen and scrubbing the janitor's 
 
            closet.  Claimant started at $4.25 per hour.  Her ending 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            wage was $4.85 per hour.
 
            
 
                 Initially, while at work, claimant was standing on a 
 
            stool and it collapsed.  Claimant fell onto a counter with 
 
            her weight upon her hands.
 
            
 
                 Later, on September 1, 1988, claimant was cleaning the 
 
            milk cooler.  She experienced pain in her shoulders, neck 
 
            and arms while she was lifting milk cartons.  During the 
 
            first week in September, claimant reported the injury to the 
 
            staff nurse.  An accident report was completed.
 
            
 
                 Claimant sought medical attention.  She was examined by 
 
            an orthopedic surgeon, K. J. Liudahl, M.D., who ordered an 
 
            EMG and a nerve conduction study.  The EMG demonstrated "a 
 
            marked median neuropathy due to compressive damage at the 
 
            wrist."  Dr. Liudahl performed a right carpal tunnel 
 
            release.  He opined the following relative to claimant's 
 
            condition:
 
            
 
                 02-02-89 OC KJL: She is 3 months status post right 
 
                 carpal tunnel release.  Has been doing her hand 
 
                 rehabilitation.  Has not been back to work because 
 
                 of other problems.  She still has some mild 
 
                 signs/symptoms of trapezius syndrome.
 
            EXAM:  Today reveals well healed carpal tunnel 
 
            release scar.  She has full ROM.  She has moderate 
 
            grip strength.  Slight decrease in thumb abductor 
 
            strength compared to the opposite side, 50% 
 
            sensation in the long and ring and index fingers.
 
            IMPRESSION:  Doing well status post carpal tunnel 
 
            release.  I believe she has gained the bulk of the 
 
            median nerve function that she is going to gain 
 
            back already.  She still has approximately 50% 
 
            sensory deficit and 25% motor deficit.  This would 
 
            give her a permanent partial impairment rating of 
 
            5% of the hand.  I do not believe she needs any 
 
            further restrictions as far as her hand or her 
 
            neck.  I asked her to return to work from these 
 
            standpoints, and have her return to the clinic on 
 
            a prn basis.
 
            
 
                 Claimant alleged she had additional problems due to her 
 
            work injury of September 1, 1988.  She sought chiropractic 
 
            treatment from W. J. Wagner, D.C.  Dr. Wagner opined:
 
            
 
                    I have consulted with and have examined Karen 
 
                 Tanner on March 30, 1989.  It is evident to me 
 
                 that she has spinal problems and misalignments.  
 
                 From her history, I have determined this is a 
 
                 result of the accident dated September 1, 1988.
 
            
 
                    I feel confident that I can help with these 
 
                 soft tissue injuries, and she should have this 
 
                 care to receive optimum results.
 
            
 
                 Claimant also sought treatment from W. R. Blankenship, 
 
            M.D.  She was experiencing back pain subsequent to her fall 
 
            from the stool.  An x-ray taken on September 13, 1988, was 
 
            determined by S. W. Hamilton, M.D., to show:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                      Degenerative change dorsal spine.
 
                    Compression deformity D4 vertebral
 
                    body, age indeterminate.
 
            
 
                 Dr. Blankenship opined that "this is pain related to a 
 
            vertebral compression fracture in this area.  It is likely 
 
            the patient had a predisposing tendancy [sic] towards this 
 
            with all of her medical problems, but that it was more 
 
            proximally caused by her leaning over and pulling about 30 
 
            lbs. [sic] containers from the refrigeration cabinet."
 
            
 
                 Claimant also alleged she was having problems with her 
 
            lower extremities.  However, she had encountered prior 
 
            problems.
 
            
 
                 Claimant was eventually released to return to work as 
 
            of January 2, 1989.  She returned to her employer but she 
 
            was informed her precise position was filled.  She was 
 
            offered a nurse's aide position.  Claimant declined the 
 
            position.  She received unemployment compensation until May 
 
            of 1989 when she started at Hallmark Care Center as a cook.  
 
            She worked to September of 1989.  Since that time, claimant 
 
            has been employed as a baby-sitter and has made ceramic 
 
            items for resale.  She presently earns $75.00 per week 
 
            babysitting.
 
            
 
                                conclusions of law
 
            
 
                 The claimant must prove by a preponderance of the 
 
            evidence that her injury arose out of and in the course of 
 
            her employment.  Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 In the course of employment means that the claimant 
 
            must prove her injury occurred at a place where she 
 
            reasonably may be performing her duties.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 Arising out of suggests a causal relationship between 
 
            the employment and the injury.  Crowe v. DeSoto Consol. Sch. 
 
            Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            1, 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence 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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 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).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure, 188 N.W.2d 
 
            283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            35 (1934).
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
            Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
            Barton, 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
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 In this case, claimant has established by a 
 
            preponderance of the evidence that she has sustained a five 
 
            percent permanent partial impairment to the hand per the 
 
            rating of Dr. Liudahl.  In the case of Elam v. Midland 
 
            Manufacturing, 2 Iowa Industrial Comm'r Rep. 141 (Appeal 
 
            Dec. 1981), it was held that an injury to the wrist is an 
 
            injury to the hand.  The hand is governed by section 
 
            85.34(2)(l) which provides:  "For the loss of a hand, weekly 
 
            compensation during one hundred ninety weeks."
 
            
 
                 Five percent of the hand totals 9.5 weeks of permanent 
 
            partial disability benefits per the functional impairment 
 
            method.  Claimant alleges she sustained permanent injuries 
 
            to the body as a whole as a result of her September 1, 1988 
 
            injury.  However, the medical evidence does not support such 
 
            a finding.  Dr. Liudahl released claimant to work as of 
 
            February 2, 1989 without restrictions for her neck.  He 
 
            opined claimant only sustained a permanent impairment to the 
 
            hand.  He was the treating surgeon.  He had examined 
 
            claimant on numerous occasions.  Nevertheless, Dr. Liudahl 
 
            did not rate claimant as having a permanent impairment to 
 
            the body as a whole because of this injury.  Much deference 
 
            is given to the opinion of Dr. Liudahl.  He saw claimant on 
 
            more than the one occasion while John Dougherty, M.D., saw 
 
            claimant only once.
 
            
 
                 While it is acknowledged that Dr. Wagner causally 
 
            related claimant's injuries to her work injury of September 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            1, 1988, the basis of his opinion was formed only upon the 
 
            history given by claimant.  This was more than seven months 
 
            after the injury, and not upon any direct observation by Dr. 
 
            Wagner.  Little deference is accorded to Dr. Wagner's 
 
            opinion.  Additionally, the report of Pat Luse, D.C., is not 
 
            accorded much weight since he only saw claimant on one 
 
            occasion.  He did not treat claimant.  Little deference is 
 
            accorded to Dr. Wagner's opinion.
 
            
 
                 THEREFORE, in light of the foregoing, it is the 
 
            determination of the undersigned that claimant is entitled 
 
            to 9.5 weeks of permanent partial disability benefits 
 
            commencing on February 3, 1989.
 
            
 
                 There is a dispute as to the amount of benefits 
 
            previously paid claimant.  The undersigned takes 
 
            administrative notice of this division's file.  According to 
 
            the official record (Form 2) defendants have paid claimant 
 
            $1,393.20 in previous benefits from September 13, 1988 to 
 
            September 26, 1988 and from October 26, 1988 to February 13, 
 
            1989.  The undersigned takes administrative notice of the 
 
            $1,393.20 credit towards all benefits previously paid.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to the costs of a medical examination under section 
 
            85.39.  The code section provides in relevant portion:
 
            
 
                 If an evaluation of permanent disability has been 
 
                 made by a physician retained by the employer and 
 
                 the employee believes this evaluation to be too 
 
                 low, the employee shall, upon application to the 
 
                 commissioner and upon delivery of a copy of the 
 
                 application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 Here, defendants' physician was Dr. Liudahl.  Claimant 
 
            believed his rating of five percent was too low.  Claimant 
 
            desired and obtained an independent medical examination from 
 
            Dr. Luse.  Defendants are liable for the same.
 
            
 
                 The final issue in contention is the medical bill from 
 
            Wallace Wagner, D.C.  Claimant visited him on May 5, 1989.  
 
            There is no evidence in the record to indicate he was an 
 
            authorized treating chiropractor.  Dr. Liudahl was 
 
            authorized to treat claimant.  Therefore, defendants are not 
 
            liable for Dr. Wagner's charges.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant weekly benefits for 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            nine point five (9.5) weeks of permanent partial disability 
 
            benefits commencing on February 3, 1989, at the rate of 
 
            seventy-eight and 03/l00 dollars ($78.03) per week.
 
            
 
                 Defendants shall take credit for one thousand three 
 
            hundred ninety-three and 20/l00 dollars ($1,393.20) in 
 
            benefits previously paid claimant.  These include benefits 
 
            paid from September 13, 1988 to September 26, 1988 and from 
 
            October 26, 1988 to February 13, 1989.  The parties have 
 
            stipulated that claimant is entitled to healing period 
 
            benefits from September 13, 1988 to September 26, 1988 and 
 
            from October 26, 1988 to February 2, 1989.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants are also liable for the cost of the medical 
 
            examination of Pat Luse, D.C.
 
            
 
                 Costs are taxed to defendants 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 February, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City  IA  51102
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce St  STE 200
 
            P O Box 3086
 
            Sioux City  IA  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803.1
 
                           Filed February 15, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN TANNER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 897166
 
            MID-STEP SERVICES, INC.,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803.1
 
            Claimant was awarded 9.5 weeks of permanent partial 
 
            disability benefits at the stipulated rate because of an 
 
            injury to claimant's hand.  Claimant was not awarded any 
 
            disability to the body as a whole since she did not sustain 
 
            any permanency.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANN MOSER,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  897296
 
            CARDINAL INSULATED GLASS, CO. :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Ann 
 
            Moser as a result of injuries to her low back which occurred 
 
            on September 15, 1988.  Defendants admitted compensability 
 
            for the injury, paid weekly benefits and paid medical 
 
            benefits.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on May 16, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 40; testimony from 
 
            claimant, Curt Hoadley and Lori Ramsey.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Claimant's entitlement to industrial disability 
 
            benefits and causal connection;
 
            
 
                 2.  Claimant's entitlement to temporary total 
 
            disability or healing period benefits; and
 
            
 
                 3.  The commencement date for payment of permanent 
 
            partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant on September 15, 1988, worked for employer as 
 
            a riveter.  While performing her duties during work hours, 
 
            claimant fell and injured her low back.  Claimant had a 
 
            preexisting low back problem prior to the fall.  No doctor 
 
            had assigned to the preexisting condition either permanent 
 
            impairment or permanent work restrictions.  It is found that 
 
            the September 15, 1988, injury was an aggravation of a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preexisting low back condition.
 
            
 
                 Claimant lost time from work as a result of the injury 
 
            beginning September 16, 1988 through October 3, 1988.  
 
            Claimant returned to work with employer on October 4 1988, 
 
            per Dr. Glen D. Hanson's full duty work release. 
 
            
 
                 Claimant voluntarily terminated her employment on 
 
            October 12, 1988, so as to start a new job as a security 
 
            guard on October 14, 1988.  Claimant had applied for the 
 
            security guard position on October 11, 1988.
 
            
 
                 Claimant alleged at hearing that she terminated work 
 
            for employer due to the heavy work aggravating her low back 
 
            pain.  It is found that claimant's termination of employment 
 
            was voluntary and not connected to the work injury due to 
 
            her failure to seek medical care immediately upon leaving 
 
            the work.  It is noted that claimant had applied for other 
 
            work prior to terminating her employment.  Employer's offer 
 
            of work was, therefore, made in good faith.
 
            
 
                 Claimant eventually left her job as a security guard 
 
            and worked for a number of different employers, all of which 
 
            paid wages lower than she had earned when working for 
 
            employer.  At the time of hearing, claimant earned $6 per 
 
            hour working as a cashier.
 
            
 
                 Claimant's treatment subsequent to leaving work for 
 
            employer was sporadic.  Dr. Hanson eventually referred her 
 
            to William Boulden, M.D., an orthopedic specialist.  
 
            Claimant's injury was diagnosed as a low back strain and 
 
            treated conservatively.
 
            
 
                 Dr. Hanson opined that the September 15, 1988, injury 
 
            resulted in no permanent impairment and a release to work 
 
            full duty (exhibit 1, page 9).  Dr. Boulden also stated that 
 
            no impairment resulted from the injury, but imposed work 
 
            restrictions of no bending, twisting, lifting of 20 to 25 
 
            pounds and no prolonged sitting of over 30 to 45 minutes 
 
            (ex. 1, p. 30).  
 
            
 
                 Daniel J. McGuire, M.D., examined claimant on April 5, 
 
            1991, at defendants' request and found no permanent 
 
            impairment and no permanent work restrictions (ex. 1, p. 
 
            41).
 
            
 
                 It is found that Dr. Boulden's opinions are more 
 
            credible.  Dr. Hanson is a general practitioner who referred 
 
            claimant to an orthopedic expert for treatment.  Dr. 
 
            Hanson's opinion is entitled to less weight because of his 
 
            lack of orthopedic expertise.  Dr. McGuire saw claimant on 
 
            only one occasion.  His inability to treat and examine 
 
            claimant at a time close to the accident detracts from the 
 
            weight to be given his opinion.  In summary, Dr. Boulden's 
 
            opinions are more credible due to his orthopedic expertise 
 
            and due to his being a treating physician.
 
            
 
                 The first issue to be decided concerns whether the 
 
            September 15, 1988, injury is a cause of disability.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Having found Dr. Boulden's opinions entitled to greater 
 
            weight, it follows that the imposition of permanent work 
 
            restrictions proves that permanent disability resulted from 
 
            the September 15, 1988 injury (ex. 1, pp. 30 & 31). 
 
            
 
                 The next issue concerns the extent of claimant's 
 
            entitlement to industrial disability.  Factors to be 
 
            considered when assessing industrial disability include 
 
            claimant's age, education, experience, work restrictions and 
 
            impairment.
 
            
 
                 In the case at hand, claimant was age 21, a high school 
 
            graduate with experience primarily as a manual laborer, 
 
            security guard and cashier.  The work restrictions imposed 
 
            by Dr. Boulden restrict claimant from performing heavy 
 
            manual labor.  It is noted that these are restrictions 
 
            generally imposed by Dr. Boulden on all patients who have 
 
            low back problems (ex. 1, p. 33).  Claimant testified that 
 
            she could probably still perform the riveting job, but that 
 
            such work would cause low back discomfort.  Exhibit 31 
 
            reveals the riveting job as one which requires a fair amount 
 
            of bending over at the work station.  Finally, claimant's 
 
            permanent partial impairment resulting from the work injury 
 
            was rated at zero by all of the doctors (ex. 1, pp. 9, 28 & 
 
            44).
 
            
 
                 Roger F. Marquardt is a vocational specialist employed 
 
            by claimant to provide an opinion on loss of earning 
 
            capacity.  He opined that based upon her earnings a 15 to 25 
 
            percent loss of earning capacity has resulted.  His opinion 
 
            is not conclusive with respect to industrial disability as 
 
            other factors must be considered when evaluating industrial 
 
            disability.
 
            
 
                 In this case, the work restrictions imposed by Dr. 
 
            Boulden weigh in favor of industrial disability while the 0 
 
            percent impairment rating weighs heavily against such a 
 
            finding.  It is found that the September 15, 1988, low back 
 
            injury caused 5 percent industrial disability.
 
            
 
                 Apportionment was not appropriate in this case as the 
 
            evidence failed to prove that claimant's preexisting low 
 
            back condition had an affect on her earning capacity (ex. 1, 
 
            p. 8).  Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 
 
            1991).
 
            
 
                 The next issue to be resolved concerns claimant's 
 
            entitlement to healing period benefits.  
 
            
 
                 Claimant was authorized off work beginning September 
 
            16, 1988 through October 3, 1988.  As of October 4, 1988, 
 
            employer made work available.  Claimant accepted the offer 
 
            of work until such time as she voluntarily terminated her 
 
            employment.  Claimant's healing period ended on October 3, 
 
            1988, as she was released to employment substantially 
 
            similar to the employment in which she was engaged at the 
 
            time of injury.  Claimant's testimony that she left her job 
 
            with employer on October 12, 1988, due to the back injury, 
 
            is insufficient to start a second healing period.  
 
            Corroborating medical evidence was not offered which proves 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that claimant was unable to work subsequent to October 4, 
 
            1988.
 
            
 
                 Therefore, claimant has proven entitlement to healing 
 
            period benefits beginning September 16, 1988 through October 
 
            3, 1988.  Permanent partial disability begins at the end of 
 
            the healing period and the commencement date is, therefore, 
 
            found to be October 4, 1988.
 
            
 
                                conclusions of law
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            15, 1988, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that the September 15, 1988, low back injury is a cause of 
 
            permanent disability as evidence by the permanent work 
 
            restrictions imposed by Dr. Boulden.
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 5 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 25 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            Section 85.34(1), Code of Iowa, provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) he has returned to 
 
            work; (2) is medically capable of returning to substantially 
 
            similar employment; or (3) has achieved maximum medical 
 
            recovery.  The
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
         
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              Claimant has proven by a preponderance of the evidence 
 
         entitlement to healing period benefits beginning September 16, 
 
         1988 through October 3, 1988.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)(u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks and the disability bears to the 
 
         body as a whole.
 
         
 
              Having found that the healing period benefits end on October 
 
         3, 1988, it follows that permanent partial disability commences 
 
         on October 4, 1988.
 
         
 
                                      order
 
         
 
              IT IS THEREFORE, ORDERED:
 
         
 
              Defendants are to pay claimant healing period benefits at 
 
         the rate of two hundred seven and 88/100 dollars ($207.88) per 
 
         week for the period September 16, 1988 through October 3, 1988.
 
         
 
              Defendants are to pay claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seven and 88/100 dollars ($207.88) per week commencing October 4, 
 
         1988.
 
         
 
              It is further ordered that defendants shall receive credit 
 
         for benefits previously paid.
 
         
 
              It is further ordered that all accrued benefits are to be 
 
         paid in a lump sum.
 
         
 
              It is further ordered that interest will accrue pursuant to 
 
         Iowa Code section 85.30. 
 
         
 
              It is further ordered that the costs of this action are 
 
         assessed against defendants pursuant to rule 343 IAC 4.33.
 
         
 
              It is further ordered that defendants file claim activity 
 
         reports as requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of May, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MARLON D. MORMANN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 

 
         
 
         Page òòò  7        
 
         
 
         
 
         
 
         Mr. Gregory Racette
 
         Attorney at Law
 
         2700 Grand Ave STE 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Paul Thune
 
         Attorney at Law
 
         218 6th Ave STE 300
 
         PO Box 9130
 
         Des Moines, Iowa  50306-9130
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51802 51803
 
                      Filed May 23, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANN MOSER,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  897296
 
            CARDINAL INSULATED GLASS, CO. :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51802 51803
 
            Claimant, age 21, a high school graduate with experience at 
 
            light manual labor, sustained a work aggravation injury of 
 
            preexisting low back condition with zero permanent partial 
 
            disability, but a 25 pound work restriction was awarded 5 
 
            percent industrial disability and a two week healing period.