Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA K. McKINNEY,            :
 
                                          :        File No. 898434
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SHELLER-GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Linda K. McKinney, against her employer, 
 
            Sheller-Globe Corporation, self-insured, defendant.  The 
 
            case was heard on April 4, 1991, in Burlington, Iowa at the 
 
            Des Moines County Courthouse.  The record consists of the 
 
            testimony of claimant.  Additionally, the record consists of 
 
            claimant's exhibits 1-57 and defendant's exhibits A-L.  
 
            There were many duplications involving the exhibits.  Some 
 
            exhibits appeared three times.  The attorneys are advised to 
 
            confer prior to the hearing so that joint exhibits can be 
 
            prepared.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:
 
            
 
                 1)  Whether there is a causal relationship between the 
 
            work injury and claimant's alleged permanent disability; 2) 
 
            whether claimant is entitled to temporary disability/healing 
 
            period benefits or permanent partial disability benefits; 
 
            and, 3) whether claimant is entitled to certain medical 
 
            benefits under section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 42 years old and single.  She is the mother 
 
            of three children.  Claimant graduated from high school.  
 
            After her graduation, claimant performed waitress work and 
 
            also engaged in factory work.
 
            
 
                 On April 3, 1984, claimant commenced her employment 
 
            with defendant.  She worked as an oven operator where she 
 
            was required to run strips of rubber material into the oven 
 
            and to remove the strips after they had been processed.
 
            
 
                 On September 26, 1988, claimant was feeding rubber into 
 
            an oven.  In order to better fit the rubber, claimant jumped 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            onto a three foot high skid of rubber material.  She felt a 
 
            pop in her lower back, followed by immediate pain in her 
 
            lower back and down the right side of her leg.  Claimant 
 
            reported the injury to the first aid department.
 
            
 
                 Claimant sought chiropractic care from Gary M. Crank, 
 
            D.C., on September 28, 1988.  Dr. Crank treated claimant for 
 
            a period of time.  Dr. Crank diagnosed claimant's condition 
 
            as "[l]ow back pain on the right side, numbness and sharp 
 
            pain in the right arm, swelling in the right arm, tingling 
 
            pain in the right leg."  (Exhibit 54, page 6, lines 1-3)  
 
            Dr. Crank saw claimant on four occasions until claimant 
 
            voluntarily discontinued treatment on October 3, 1988.  
 
            Claimant again sought treatment from Dr. Crank on January 
 
            27, 1989.  He initiated treatment in the form of Russian 
 
            stimulation.  Dr. Crank released claimant to return to light 
 
            duty work on April 26, 1989.  Claimant treated with Dr. 
 
            Crank through July 14, 1989.
 
            
 
                 From October 5, 1988 to January 12, 1989, claimant was 
 
            treated by Keith W. Riggins, M.D., an orthopedic surgeon.  
 
            Dr. Riggins conducted many types of diagnostic testing.  All 
 
            of the test results established that claimant's back was 
 
            within normal limits.  As of January 12, 1989, Dr. Riggins 
 
            opined:
 
            
 
                 Ms. McKinney has now been under evaluation since 
 
                 the 5th of October, 1988, and has undergone 
 
                 multiple diagnostic studies including bonescan, 
 
                 MRI, x-ray examination, and blood tests directed 
 
                 towards determining the possible presence of 
 
                 systemic arthritis.  In spite of these procedures, 
 
                 no definitive diagnosis has been made.  She has 
 
                 been on a program of physical therapy at least 
 
                 since November of 1988 without significant 
 
                 improvement in comfort.
 
            
 
                 I have no further suggestions for diagnostic 
 
                 studies nor therapeutic measures for Ms. McKinney 
 
                 whom, so far as I can tell, will continue to be 
 
                 afflicted by chronic low back pain.  No return 
 
                 visits are required.
 
            
 
            (Ex. K, p. 14, paragraphs 2 and 3)
 
            
 
                 Subsequent to the chiropractic treatment with Dr. Crank 
 
            on July 14, 1989, claimant was involved in an automobile 
 
            accident which was unrelated to claimant's employment.  
 
            Claimant received treatment at the Kirksville Osteopathic 
 
            Medical Center.  She experienced low back pain.  However, 
 
            her x-rays were unremarkable.  Claimant engaged in physical 
 
            therapy.  She testified the car accident seriously 
 
            aggravated her low back and that her back pain was twice as 
 
            bad as it had been prior to the car accident.
 
            
 
                 After the automobile accident, claimant commenced 
 
            chiropractic treatment with Terry Shaw, D.C., on August 2, 
 
            1989.  Claimant presented a history of low back pain 
 
            relative to her automobile accident.  Claimant also 
 
            expressed difficulties with her legs, upper thoracic region, 
 

 
            
 
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            cervical area and pain in her head.  Dr. Shaw testified 
 
            there was a marked exacerbation or increase of her low back 
 
            pain and discomfort as a result of the auto accident  (Ex. 
 
            36, p. 12, ll. 12-16).  However, Dr. Shaw, in his deposi
 
            tion, was unable to offer any objective evidence as to the 
 
            degree of exacerbation (Ex. 36, p. 13, ll. 8-17).  The pain 
 
            in other areas of the spine was directly related to the auto 
 
            accident and not to the work injury of September 26, 1988.
 
            
 
                 Dr. Shaw testified that as of the date of his 
 
            deposition, claimant was only experiencing moderate pain.  
 
            The pain was the result of muscle spasms caused by 
 
            claimant's two injuries to her low back.  Dr. Shaw, after 
 
            seeing claimant on 80 occasions, released claimant to return 
 
            to work on a full time bases as of February 26, 1990.  
 
            Claimant was restricted from lifting 25 pounds infrequently 
 
            and from lifting 10 pounds frequently.  She was required to 
 
            limit her lifting or overhead reaching.  She was also 
 
            advised to change positions frequently.
 
            
 
                 Edward A. Trudeau, M.D., examined claimant on July 25, 
 
            1990.  Dr. Trudeau performed various electrical studies.  In 
 
            his report, Dr. Trudeau opined:
 
            
 
                 INTERPRETATION:
 
            
 
                 1.  Normal electrodiagnostic studies of the right 
 
                 upper      and both lower extremities.
 
            
 
                 2.  No evidence of peripheral entrapments.
 
            
 
                 3.  No evidence of cervical radiculopathy.
 
            
 
                 4.  No evidence of lumbosacral radiculopathy on 
 
                 either     side.
 
            
 
                 5.  Please note above comment section regarding 
 
                 further    possible diagnostic and treatment 
 
                 considerations            per Dr. Shaw.
 
            
 
            (Ex. E, pp. 6-7)
 
            
 
                 Claimant testified she was off work from September 27, 
 
            1988 through November 7, 1988.  She was paid weekly benefits 
 
            for this period.  When claimant returned to work she was 
 
            assigned to light duty work.  She engaged in sedentary work 
 
            through July 7, 1989.  Dr. Crank released claimant as of 
 
            August 11, 1989.  During May and June of 1989, claimant was 
 
            also examined by Dennis L. Abernathie, M.D., another 
 
            orthopedist.  He restricted claimant to sedentary work 
 
            because of "an acute strain of her back."  Objective test 
 
            results were normal.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has proven she has a temporary total 
 
            disability.  Section 85.33(1) governs the payment of 
 
            temporary total disability benefits.  The section provides:
 
            
 
                 1.  Except as provided in subsection 2 of this 
 

 
            
 
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                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 In the case at hand, there is no real dispute that 
 
            claimant was off work from September 27, 1988 through 
 
            November 7, 1988.  Benefits were paid for this period of 
 
            time.  Claimant returned to light duty work on November 8, 
 
            1988.  She remained on light duty through July 14, 1989, the 
 
            date of the unrelated automobile accident.  Claimant was 
 
            then off work from July 15, 1989 through January 12, 1990.  
 
            This period of lost work time was the direct result of the 
 
            automobile accident.  The lost work time was not 
 
            attributable to the work injury of September 26, 1988.  
 
            Prior to the date of the auto accident, claimant testified 
 
            she had improved considerably and she had only experienced 
 
            "some" low back pain.  Claimant was able to satisfactorily 
 
            maintain her light duty position.  It was only subsequent to 
 
            the auto accident when claimant was again off work.  She is 
 
            not entitled to workers' compensation for the period of July 
 
            15, 1989 to January 12, 1990.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to any permanent partial disability benefits.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 

 
            
 
            Page   5
 
  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Peterson v. 
 
            Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
            1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
            26, 1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant alleges she has a permanent partial 
 
            disability.  However, there is no objective evidence which 
 
            establishes that claimant has any functional impairment.  
 
            All diagnostic tests have shown that claimant's back 
 
            condition is within normal limits.  Likewise, claimant has 
 
            returned to regular duty.  She is not permanently restricted 
 
            in any fashion.  She has been released to her former 
 
            position with a rate of pay that is greater than what she 
 
            had been earning on the date of her work injury.  By 
 
            claimant's own admission, no low back complaints have ever 
 
            been communicated by her to her foreman.  Furthermore, from 
 
            January 3, 1991, to the date of the hearing, claimant 
 
            testified that she had missed no work because of her back 
 
            condition and that her level of pain had been improving with 
 
            the passage of time.  Therefore, it is the determination of 
 
            this deputy that claimant has no permanent disability.
 
            
 
                 The final issue before this deputy deals with section 
 
            85.27 medical benefits.  The issue has been or will be 
 
            resolved by the parties.  The attorneys, at the commencement 
 
            of the hearing, indicated they would work out the payment of 
 
            the medical bills between the respective parties.  
 
            Therefore, this deputy will not address the issue in her 
 
            decision.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant are to pay temporary total disability 
 
            benefits for the period from September 26, 1988 to November 
 
            7, 1988, a period of six point one-four-three (6.143) weeks 
 
            at the corrected rate for a single person with three 
 
            exemptions of two hundred sixty-one and 64/l00 dollars 
 
            ($261.64) per week.
 
            
 
                 Defendant shall received credit for all benefits paid 
 
            and not previously credited.
 
            
 
                 Costs of the action shall be assessed to defendant 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.l.
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jim Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. Larry Shepler
 
            Attorney at Law
 
            Suite 102
 
            Executive Square
 
            400 Main St
 
            Davenport  IA  52801
 
            
 
            Sheller-Globe Corp.
 
            3200 Main St
 
            Keokuk  IA  52632
 
            REGULAR & CERTIFIED MAIL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed September 26, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA K. McKINNEY,            :
 
                                          :        File No. 898434
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            SHELLER-GLOBE CORP.,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1803
 
            Claimant alleged she had a permanent partial disability.  
 
            However, there was no objective evidence which established 
 
            that claimant had any functional impairment.  All diagnostic 
 
            tests demonstrated that claimant's back condition was within 
 
            normal limits.  Likewise, claimant returned to regular duty.  
 
            She was not permanently restricted in any fashion.  She had 
 
            been released to work at her former position at a rate of 
 
            pay which was greater than what she had been earning on the 
 
            date of her work injury.  By claimant's own admission, she 
 
            had never communicated low back complaints to her foreman.  
 
            Claimant testified her level of pain had improved with the 
 
            passage of time.  Held:  Claimant was not permanently 
 
            disabled.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JACK L. STEELE,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                               File No. 898457
 
         W. G. BLOCK CO.,      
 
                                                A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         U.S.F. & G.,     
 
                     
 
              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 
 
         November 30, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of April, 1994.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Gene R. Krekel
 
         Attorney at Law
 
         P.O. Box 1105
 
         Burlington, Iowa 52601
 
         
 
         Ms. Deborah A. Dubik
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801-1596
 
         
 
         
 
 
 
 
 
 
 
 
 
 
                                              5-1108, 5-1803
 
                                              Filed April 27, 1994
 
                                              BYRON K. ORTON
 
                      
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JACK L. STEELE,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 898457
 
            W. G. BLOCK CO.,      
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            U.S.F. & G.,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1108; 5-1803
 
            
 
                 Claimant did not establish a causal relationship 
 
            between his numerous complaints and his work injury.  
 
            Complaints were not consistent with an anatomic basis and 
 
            claimant on psychological testing was found to have a 
 
            conversion disorder with an etiology in character traits 
 
            that preexisted the work injury.  
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JACK L. STEELE,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 898457
 
            W. G. BLOCK CO.,    
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            U.S.F. & G,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
                 
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Jack L. Steele, against his employer, W. G. Block 
 
            Co., and its insurance carrier, United States Fidelity and 
 
            Guaranty Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act, as a result of an injury 
 
            sustained on October 13, 1988.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner in Burlington, Iowa, on October 28, 1993.  A 
 
            first report of injury has been filed.  The record consists 
 
            of the testimony of claimant, and of Sandra Steele, as well 
 
            as of joint exhibits 1 through 9.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and the oral stipulation 
 
            of the parties at hearing, the parties have agreed to the 
 
            following:
 
            
 
                 1.  An employer-employee relationship existed between 
 
            claimant and defendant-employer on October 13, 1988;
 
            
 
                 2.  Claimant did receive an injury which arose out of 
 
            and in the course of claimant's employment on October 13, 
 
            1988;
 
            
 
                 3.  Entitlement to temporary total disability or 
 
            healing period benefits is no longer disputed;
 
            
 
                 4.  Claimant had a gross weekly wage of $479.67 and was 
 
            married and entitled to five exemptions on the alleged 
 
            injury date, resulting in a weekly rate of $310.42; 
 
            defendants are entitled to a credit for 21.751 weeks of 
 
            benefits paid at the rate of $310.42.
 
            
 
                 Issues remaining to be decided are:
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's injury and claimed permanent partial disability; 
 

 
            
 
            Page   2
 
            
 
            
 
            and
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability entitlement, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 36-year-old gentleman who has completed 
 
            ninth grade.  Claimant has not obtained a GED and indicated 
 
            he was unable to do so since he does not read well enough.  
 
            At hearing, claimant did appear to have some difficulty in 
 
            thinking abstractly.  Claimant performed a variety of 
 
            factory and construction jobs before beginning work as a 
 
            truck driver with the employer in 1978.  Claimant's job at 
 
            Ideal Ready Mix required that he have a chauffeur's license.  
 
            Claimant drove a Ready Mix truck, a dump truck, a loader and 
 
            forklift for the employer at various times.  Claimant also 
 
            did some [apparently auto] mechanic work, welding and plant 
 
            maintenance for the employer.  Claimant self assessed his 
 
            work with the employer as involving lifting up to 100 
 
            pounds.  Additionally, claimant had a part-time business 
 
            doing auto body repair.  Claimant stated that his spouse did 
 
            record keeping and other paper work required for that 
 
            business.  Claimant also owns a number of rental properties.  
 
            Claimant stated that prior to his injury, he had remodeled 
 
            those rental properties and also had done side contracting 
 
            work for individuals.  On cross-examination, claimant 
 
            acknowledged that he now owns six or seven properties; one 
 
            in which he lives in; four of which are now rental units and 
 
            two that he is "working on".  Claimant is gutting and 
 
            insulating walls and tearing out old flooring.  Claimant has 
 
            had his chauffeur's license renewed since the accident.  
 
            Renewal required a doctor's certification that claimant had 
 
            no physical conditions which would have prohibited his 
 
            renewing that license.  
 
            
 
                 On October 10, 1988, claimant tripped and fell out of 
 
            his truck.  Claimant stated that the right back of his head 
 
            and his right shoulder hit the ground first with the right 
 
            hand and arm hitting behind him.  He reported that his neck 
 
            stretched to the left side and that his back buckled and was 
 
            also hurt.  
 
            
 
                 Claimant was initially treated and discharged from a 
 
            local emergency room.  On October 20, 1988, claimant saw H. 
 
            M. Patterson, D.O., who on October 26, 1988, diagnosed 
 
            claimant's condition as somatic cervical dysfunction.  
 
            Claimant later was referred to Jerry L. Jochims, M.D. and 
 
            Michael W. Hendrix, M.D. of Orthopaedic and Reconstructive 
 
            Surgery Associates.  On October 3, 1988, claimant, on 
 
            examination, had no neurological deficit and had full active 
 
            and passive range of motion of the right shoulder.  Claimant 
 
            did have "guarding" with apparent tenderness from the 
 
            trapezius to between the shoulder blades.  Likely shoulder 
 
            or trapezius strain was diagnosed.  Electromylogram and 
 
            nerve conduction studies were also performed in November 
 
            1988.  These showed some irritably in the cervical 
 

 
            
 
            Page   3
 
            
 
            
 
            paraspinous region and a poly shortwave in the extensor 
 
            carpiradialus longus possibly related to a C6-7 innervation.  
 
            Claimant's physician did not believe that this represented a 
 
            true nerve root deficit, however.  The physician felt the 
 
            likely mechanism of injury was a stretch of the brachial 
 
            plexus.  
 
            
 
                 On January 6, 1989, claimant presented at Orthopaedic 
 
            and Reconstructive Surgery Associates with complaints of 
 
            numbness over the entire right side of his face, arm, and 
 
            right leg and body.  His attending physician characterized 
 
            those complaints as "more a hysterical type of analysis 
 
            rather than anatomic."  The doctor subsequently prescribed 
 
            work hardening.  On February 6, 1989, claimant was 
 
            functioning at between the 90th and 95th percentile at work 
 
            hardening.  Claimant then had normal right shoulder, elbow, 
 
            and wrist range of motion and normal neurological gross 
 
            motor testing and reflexes.  Neck motion was near normal and 
 
            supple.  Orthopaedic Associates physicians released claimant 
 
            to return to full duty work as of February 9, 1989 and to 
 
            follow-up with them as needed.  Claimant was then noted has 
 
            having "very little impairment ..."
 
            
 
                 Claimant stated that on returning to work with Ideal 
 
            Ready Mix he continued to have head, leg, arm and shoulder 
 
            numbness as well as headache.  Claimant also reported that 
 
            on his return to work his vision became "fuzzy" on turning 
 
            his head while backing up his truck.  Claimant voluntarily 
 
            left work in February 1992.  He testified he did so after 
 
            having a truck accident at work.  He told his boss that he 
 
            "had to get help" with his physical problems before he could 
 
            return to work.  
 
            
 
                 John C. VanGilder, M.D., professor of neurology at the 
 
            University of Iowa Hospitals and Clinics, examined claimant 
 
            on May 31, 1989.  Dr. VanGilder found no evidence of muscle 
 
            atrophy or of muscle weakness in the pectoral girdle or the 
 
            arms.  Claimant's reflexes were symmetrical; he had no 
 
            hypalgesia; no evidence of neurological deficit; and no 
 
            evidence of cervical spine pathology.  Dr. VanGilder stated 
 
            that claimant's right shoulder symptoms could have been a 
 
            subacute bursitis.  Dr. VanGilder again saw claimant on 
 
            April 11, 1991.  He then had full neck range of motion; a 
 
            negative thoracic outlet sign; a normal gait and normal 
 
            Rhomberg.  Dr. VanGilder reported that no orthopedic 
 
            etiology explained claimant's neck, head and back pain.
 
            
 
                 On March 21, 1990, claimant returned to Orthopaedic and 
 
            Reconstructive Surgery Associates with complaints of neck 
 
            and right arm symptoms as well as acute headaches and dizzy 
 
            spells upon turning his head wrong.  Electromyography and 
 
            nerve conduction studies which were repeated in April 1990 
 
            showed a mild increase in right medial nerve distal latency 
 
            associated with significant difference between claimant's 
 
            two sides and consistent with mild right carpal tunnel 
 
            syndrome.  The cervical radiculopathy found on the November 
 
            1988 studies was not present on the April 1990 studies.  
 
            
 
                 Daniel Keyser, M.D., of the University of Iowa 
 

 
            
 
            Page   4
 
            
 
            
 
            Hospitals and Clinics Department of Neurology, examined 
 
            claimant on May 1, 1991.  Claimant had diminished pinprick 
 
            and light touch over the lateral right hand on a sensory 
 
            examination which was otherwise normal.  He had normal 
 
            strength and symmetric reflexes with no focal atrophy or 
 
            fasciculations.  Dr. Keyser stated that claimant may have 
 
            persistent musculoskeletal pain related to his October 1988 
 
            injury.  Electromyography and nerve conduction studies were 
 
            again repeated on May 29, 1991 and were interpreted as 
 
            normal.  An MRI of that date showed mild C5-6 disc bulging 
 
            without neuroforamena or thecal sac compression.
 
            
 
                 Vincent C. Traynelis, M.D., assistant professor of 
 
            neurosurgery, at the University of Iowa Hospitals and 
 
            Clinics, examined claimant on June 25, 1991.  Claimant had a 
 
            normal motor exam and equal and symmetric deep tendon 
 
            reflexes.  He had hypesthesia and hypalgesia in the right 
 
            C5, C6, and C7 dermatomes.  Dr. Traynelis was uncertain of 
 
            the cause of claimant's symptoms and felt claimant may have 
 
            had some mild permanent injury to his [brachial] plexus.  He 
 
            felt that given that claimant's symptoms had been ongoing 
 
            for two years these symptoms would likely be a permanent 
 
            problem for claimant.
 
            
 
                 Barcey Levy, M.D. and Matthew Rizzo, M.D., of the 
 
            University of Iowa Hospitals and Clinics Department of 
 
            Neurology, examined claimant on March 5, 1992.  Claimant 
 
            then reported decreased sensation to light touch and 
 
            pinprick on the entire right side of his body including the 
 
            right side of his face and splitting exactly in the midline 
 
            throughout.  It was then noted that claimant had no apparent 
 
            abnormalities on neurologic exam with the exception of some 
 
            "non-physiologic sensory complaints."  
 
            
 
                 An oral Minnesota Multiphasic Personality Inventory-I 
 
            was administered to claimant on March 25, 1992.  The 
 
            inventory was notable for conversion disorder in which 
 
            distressing  psychological concerns are converted into 
 
            physical symptoms.  This conversion disorder was noted to be 
 
            consistent with long- standing personality traits including 
 
            denial of the psychological contributions to the physical 
 
            symptoms noted.  The evaluation also revealed defects in 
 
            selected aspects of memory, executive control, and a pattern 
 
            of performance consistent with limited academic achievement.  
 
            Additionally, claimant's pattern of performance, in 
 
            conjunction with reported behavioral changes, were 
 
            suggestive of mild post-traumatic head injury syndrome.
 
            
 
                 E. Torage Shivapour, M.D., who is board certified in 
 
            both neurology and electrodiagnostic medicine, examined 
 
            claimant on September 10, 1993.  He reported an essentially 
 
            normal neurological exam and indicated he had no specific 
 
            suggestions for additional testing or treatment for 
 
            claimant.  While claimant indicated in his testimony that 
 
            Dr. Shivapour had suggested that he be evaluated at Mayo 
 
            [Clinic], Dr. Shivapour's report only indicates that he told 
 
            claimant, claimant could either return to the University of 
 
            Iowa or go to Mayo Clinic for further evaluation.  
 

 
            
 
            Page   5
 
            
 
            
 
                 Claimant indicated he has been told not to seek other 
 
            employment because his optic nerve must be stretched.  He 
 
            then stated that "half the stuff" he has been told is not 
 
            recorded in medical records.  Claimant stated that his 
 
            supervisor with the employer had told claimant that when 
 
            claimant "got fixed" the supervisor wanted claimant back at 
 
            work.  Claimant reported that other contractors have told 
 
            him to return to seek employment [only] when he can work 
 
            eight hour days.  Claimant was earning approximately $10 per 
 
            hour when injured in October 1988 and approximately $10.35 
 
            per hour when he returned to work in February 1989.  
 
            
 
                 Sandra Steele, claimant's spouse, reported that 
 
            claimant had a headache so bad that he was unable to work at 
 
            least once per week from his return to work in February 1989 
 
            to his leaving work in February 1992.  She stated claimant 
 
            takes about 150 aspirin per week and that claimant forgets a 
 
            lot if he does not take notes.  Mrs. Steele stated she had 
 
            bought claimant a pocket tape recorder so that claimant can 
 
            orally note items he needs to remember.  Mrs. Steele agreed 
 
            that no doctor has told claimant that he should not drive or 
 
            work.  
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 Our first concern is whether claimant has shown a 
 
            causal relationship between his injury and claimed 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant continues to have symptoms and complaints.  
 
            Claimant believes that these are so significant that he is 
 
            unable to work.  No doctor has expressly related these back 
 
            to claimant's work injury.  Indeed, the medical evidence is 
 
            replete with references to claimant's complaints lacking a 
 
            physiologic basis.  Likewise, the psychological testing 
 

 
            
 
            Page   6
 
            
 
            
 
            performed suggests that claimant's complaints relate to an 
 
            underlying conversion disorder with an etiologically 
 
            predating claimant's work injury.  The evidence does not 
 
            support a finding that claimant has sustained any permanent 
 
            disability causally related to claimant's October 13, 1988 
 
            work injury.  
 
            
 
                 As claimant has not shown the requisite causal 
 
            connection between his claimed disability and his work 
 
            injury, the question of permanent benefit entitlement is 
 
            moot.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from these proceedings.
 
            
 
                 Claimant pay costs of these proceedings.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Gene R. Krekel
 
            Attorney at Law
 
            101 Jefferson Street
 
            P.O. Box 1105
 
            Burlington, IA  52601
 
            
 
            Ms. Deborah A. Dubik
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third Street
 
            Davenport, IA  52801
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                           5-1108, 5-1803
 
                                           Filed November 30, 1993
 
                                           Helenjean M. Walleser
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JACK L. STEELE,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 898457
 
            W. G. BLOCK CO.,    
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                                                    D E C I S I O N
 
            and       
 
                      
 
            U.S.F. & G,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1108, 5-1803
 
            
 
                 Claimant did not establish a causal relationship 
 
            between his numerous complaints and his work injury.  
 
            Complaints were not consistent with an anatomic basis and 
 
            claimant on psychological testing was found to have a 
 
            conversion disorder with an etiology in character traits 
 
            that preexisted the work injury.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         JUDY BANKS,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                           File Nos. 917001/898516
 
         WOODWARD STATE HOSPITAL                     976638
 
         SCHOOL,     
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         STATE OF IOWA,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 28, 1991 is affirmed and is adopted as the final agency 
 
         action in this case except for the last full sentence on page 2 
 
         of the arbitration decision which is deleted.
 
         Claimant and defendants shall share equally 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. Peter J. Leehey
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 28, 1992
 
                                               Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JUDY BANKS,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File Nos. 917001/898516
 
            WOODWARD STATE HOSPITAL                     976638
 
            SCHOOL,     
 
                                                    A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed February 
 
            28, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY BANKS,                   :
 
                                          :
 
                 Claimant,                :         File Nos. 898516
 
                                          :                   917001
 
            vs.                           :                   976638
 
                                          :
 
            WOODWARD STATE HOSPITAL       :      A R B I T R A T I O N
 
            SCHOOL,                       :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns three proceedings in arbitration 
 
            brought by Judy Banks against her employer based upon 
 
            injuries that occurred on October 13, 1988, April 26, 1989, 
 
            and June 1, 1989.  It was stipulated by the parties that all 
 
            of the claimant's permanent disability is attributable to 
 
            the first of those three injuries.  It was further 
 
            stipulated that all temporary total disability or healing 
 
            period compensation which is due to the claimant as a result 
 
            of the three injuries has been fully paid.  It was further 
 
            stipulated that all permanent partial disability 
 
            compensation is to be paid at the rate of $233.20 per week 
 
            and that the employer is entitled to credit for 70 weeks of 
 
            benefits which were paid at the rate of $225.09 per week and 
 
            for group disability income benefits in the amount of 
 
            $394.04 per week under Code section 85.38(2).  The primary 
 
            issue for determination is determination of the extent of 
 
            permanent partial disability which the claimant is entitled 
 
            to receive.
 
            
 
                 The case was heard at Des Moines, Iowa, on February 26, 
 
            1992.  The evidence consists of testimony from Judy Banks, 
 
            Darrell Banks and David Mitchell.  The record also contains 
 
            claimant's exhibits 1, 2, 4, 7, 8, 9 and 10 and defendants' 
 
            exhibits A, B, C, D, E and F.  Official notice was taken of 
 
            a standard Iowa Department of Transportation highway map in 
 
            order to determine distances between claimant's residence 
 
            and potential work places.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.  Judy Banks appeared as 
 
            a fully credible, well-motivated individual who has made 
 
            very sincere efforts to overcome her physical disability.  
 
            She is found to be a fully credible witness.
 
            
 
                 Judy Banks is a 46-year-old married woman who resides 
 
            at Stanhope, Iowa, and has for the previous 16 years.  Prior 
 
            to that time, she resided at Nevada, Iowa.
 
            
 
                 Judy is a 1964 graduate of Ballard High School at 
 
            Huxley.  She obtained a nurse's aide certificate in February 
 
            of 1976 and a medication aide certificate in 1984.  Most 
 
            recently, since the injuries which are the subject of this 
 
            litigation, she has obtained a medical assistant certificate 
 
            from Iowa Central Community College.  This additional 
 
            training was completed with assistance from the Iowa 
 
            Division of Vocational Rehabilitation Services in July 1991.  
 
            Thereafter, Judy performed a work search with the services 
 
            of vocational consultant David Mitchell and obtained 
 
            employment as a medical assistant in a physician's office in 
 
            Webster City, Iowa.  She currently earns $5.25 per hour.  
 
            She will soon be qualified for a profit sharing program 
 
            operated by her employer which has a value of approximately 
 
            $1.00 per hour.  Judy is satisfied with her current 
 
            employment and is physically capable of continuing to 
 
            perform the employment indefinitely.  She hopes to seek a 
 
            better paying position in her field when she has obtained 
 
            additional experience.
 
            
 
                 According to vocational consultant David Mitchell, the 
 
            pay range in the area of claimant's residence for work as a 
 
            medical assistant is $5.50-$6.50 per hour.  Entry level 
 
            positions in the Ames and Des Moines area pay in the range 
 
            of $7.00-$9.00 per hour.  The maximum pay level for the 
 
            position appears to be in the range of $12.00 per hour.  In 
 
            a report dated July 11, 1990, Sue Lieske, a counselor with 
 
            the Iowa Division of Vocational Rehabilitation Services, 
 
            reported that the average wage for a medical assistant in 
 
            the state is $7.42 per hour, the median is $6.99 per hour, 
 
            and the mid-range of wages is from $6.71-$8.47 per hour 
 
            (exhibit 7; exhibit F, page 10).  A more recent wage survey 
 
            showed the median wage to be $7.25 per hour and the 
 
            mid-range to be $6.40-$9.25 per hour (exhibit E, page 10).  
 
            It is fortunate for all parties to this proceeding that the 
 
            claimant did not submit to the insurer's request that she 
 
            obtain employment in early 1990 rather than seek additional 
 
            education (exhibit F, page 3).
 
            
 
                 Judy's work history has been primarily that of a 
 
            nurse's aide.  She once held an assembly line position 
 
            manufacturing hydraulic hoses.  Prior to the time she 
 
            commenced employment with Woodward State Hospital-School, 
 
            her earnings had been in the range of $4.75 per hour.
 
            
 
                 Judy commenced employment with Woodward State 
 
            Hospital-School in November 1986.  She worked as a resident 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            treatment worker.  She performed work in the nature of a 
 
            nurse's aide and medication aide.  Judy worked in a cottage 
 
            with severely mentally retarded individuals who manifested 
 
            behavior problems.  It was common for her to be required to 
 
            physically restrain unruly 140-pound patients.
 
            
 
                 On October 13, 1988, while assisting another resident 
 
            treatment worker, Judy injured her upper back and neck while 
 
            attempting to restrain a patient.  She was off work and 
 
            treated for a time.  Eventually, her condition was diagnosed 
 
            as thoracic outlet syndrome.  The physician felt that the 
 
            condition had resulted from the October 13, 1988, accident.  
 
            On February 6, 1989, transaxillary resection surgery of her 
 
            right first rib was performed.  Judy did well 
 
            post-operatively and returned to work March 4, 1989 
 
            (exhibits 4 and 9).
 
            
 
                 On April 26, 1989, Judy was attempting to transfer a 
 
            resident from a wheelchair to a commode in the bathroom and 
 
            again injured her upper back and neck.  She was off work 
 
            receiving conservative treatment from April 28 through May 
 
            24, 1989.  After resuming work on May 24, 1989, she again 
 
            performed full duty as a resident treatment worker until 
 
            June 1, 1989, when she was again injured while handling an 
 
            unruly patient.
 
            
 
                 At that point, she was again taken off work and has not 
 
            resumed work as a resident treatment worker.  Judy's 
 
            authorized treating orthopaedic surgeon, Rodney E. Johnson, 
 
            M.D., reported that claimant needed to be in a job where she 
 
            did not restrain patients and where she would not 
 
            repetitively lift, push or pull (exhibit 8, page 6).
 
            
 
                 Judy applied for and received long-term disability 
 
            benefits through her employer.  Her employment was 
 
            eventually terminated (exhibit 1).  She has subsequently 
 
            been placed on a recall list, but apparently has not amended 
 
            the list to include positions which would be compatible with 
 
            her recent training as a medical assistant (exhibit B, pages 
 
            2 and 30).  When Judy last worked at the Woodward State 
 
            Hospital-School in June 1989, she was paid at the rate of 
 
            $9.39 per hour.  Assuming common annual pay raises, she 
 
            would now be earning in excess of $10.00 per hour as a 
 
            resident treatment worker if she were still so employed.
 
            
 
                                conclusions of law
 
            
 
                 It having been stipulated at the commencement of the 
 
            hearing that all permanent partial disability compensation 
 
            was payable on account of the October 13, 1988, injury, file 
 
            number 898516, and that none was payable in either of the 
 
            other two files, numbers 917001 and 976638, it is determined 
 
            that whatever claims were originally intended in those two 
 
            later files should be denied as the claimant has received 
 
            everything to which she is entitled under those two files.
 
            
 
                 The only issue for determination in this proceeding is 
 
            the extent of permanent partial disability which resulted 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            from the October 13, 1988, injury.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 The field of employment into which Judy Banks has now 
 
            moved is one which certainly seemed appropriate and prudent 
 
            for her.  Her current wage of $5.25 per hour is essentially 
 
            an entry level wage.  She can be expected to obtain higher 
 
            earnings in the future as her level of experience grows.  
 
            Projections of a general nature into the future are not 
 
            improper speculation.  The proper basis for distinction is 
 
            to determine that which is probable rather than merely 
 
            possible.  This is distinguishable from situations where it 
 
            is improperly speculated that an individual in the early 
 
            stages of a training program will complete the program and 
 
            obtain a particular position.  Meyer v. Kirby, File No. 
 
            826937 (App. Decn. 1989); Stewart v. Crouse Cartage Co., 
 
            File No. 738644 (App. Decn. 1987).
 
            
 
                 It is to be noted that the degree of disability is to 
 
            be evaluated at the time the healing period ends.  An 
 
            employee's subsequent conduct which increases the employee's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            earning capacity, such as through obtaining additional 
 
            education, is not attributable to the employer and it is not 
 
            proper to base the permanent partial disability award upon 
 
            the level of earning capacity which exists following the 
 
            completion of such additional education.  The employee's 
 
            capacity for completing added training is, however, a proper 
 
            consideration.
 
            
 
                 It is noted that the failure of an employer to reemploy 
 
            an injured worker is strong evidence of a substantial degree 
 
            of disability.  This is particularly true when the employer 
 
            is a large one which has a wide variety of positions in its 
 
            work force.  The State of Iowa is such an employer.  Sunbeam 
 
            Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (App. 1980); 
 
            Army & Air Force Exch. Serv. v. Neuman, 278 F. Supp. 865 
 
            (W. D. La. 1967); 2 Larson Workmen's Compensation Law, 
 
            section 57.61.
 
            
 
                 As is illustrated by recent Iowa Supreme Court cases 
 
            dealing with industrial disability, actual earnings are very 
 
            strong evidence of earning capacity.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990).  In this case, Judy Banks 
 
            was earning $9.39 per hour at the time she was injured and 
 
            would likely be earning in excess of $10.00 per hour if she 
 
            had remained in her employment as a resident treatment 
 
            worker.  By comparison, she is now earning $5.25 per hour.  
 
            The economic value of the fringe benefit package with the 
 
            State of Iowa was significantly greater than her current 
 
            employer's contribution toward fringe benefits, even with 
 
            the $1.00 per hour profit sharing contribution being 
 
            considered.  There is presently approximately a 50 percent 
 
            reduction in actual earnings.  That percentage is not 
 
            greatly different from what it would have been had claimant 
 
            chosen to take a clerical job in early 1990 as was suggested 
 
            by those handling her workers' compensation claim.  The 
 
            analysis of this case does not end at that point, however.  
 
            Judy's abilities and potentials are a factor.  She has 
 
            clearly demonstrated the ability to successfully complete 
 
            further training and move into a higher-paying line of work 
 
            than that which she was qualified for immediately at the end 
 
            of her healing period.  Those abilities are a factor to be 
 
            considered.  The events which have occurred clearly 
 
            demonstrate Judy's abilities.  Her actual earning potential 
 
            is much greater now than it would have been had she not 
 
            chosen to make the best of her situation.
 
            
 
                 It would be expected that the competition for the 
 
            higher-paying jobs is more intense than that for the jobs 
 
            with moderate wage levels.  It is likewise expected that 
 
            there are fewer jobs which pay at the top of the range than 
 
            those which pay in the middle of the range.  It is 
 
            reasonable to expect Judy to have the capacity to earn in 
 
            the middle of the range for her field of work.
 
            
 
                 It is noted that the higher wage levels are available 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            in the larger cities, namely Ames and Des Moines.  Fort 
 
            Dodge, Ames, Boone and Webster City are within the same 
 
            amount of travel as Judy would have performed in order to 
 
            work at Woodward.  For her to work at Des Moines, 
 
            Marshalltown or any of the other larger cities in Iowa would 
 
            require more travel than what would normally be expected for 
 
            reasonable commuting.  Thirty miles or less one way would be 
 
            considered to be a reasonable commuting distance.  Anything 
 
            over 60 miles each way would be considered beyond the range 
 
            of what would be considered a normal commuting distance.  
 
            Distances between 30 and 60 miles may be either reasonable 
 
            or unreasonable depending upon a number of factors including 
 
            the hardship and difficulty of travel, availability of car 
 
            pools, the amount of income advantage to be obtained by the 
 
            travel, the amount of time required to perform the travel 
 
            and the like.  The undersigned would consider Des Moines or 
 
            Marshalltown to be beyond the range of normal commuting 
 
            distance for someone who resides at Stanhope, Iowa, even 
 
            though there may be someone who does so.  Job availability 
 
            and wage levels are to be based upon the geographic area in 
 
            which the claimant resides and the geographic area within 
 
            which individuals who reside in that same locality 
 
            customarily travel to for purposes of employment.  The work 
 
            market is not considered to be one which is nation-wide or 
 
            state-wide for most occupations.  The job market which is 
 
            considered is that which is in the community where the 
 
            claimant resides.  Guyton v. Irving Jensen Co., 373 N.W.2d 
 
            101, 105 (Iowa 1985).
 
            
 
                 When all the pertinent factors of industrial disability 
 
            are considered, it is determined that Judy Banks sustained a 
 
            30 percent permanent partial disability as a result of the 
 
            October 13, 1988, injury.  This entitles her to receive 150 
 
            weeks of compensation payable at the stipulated rate of 
 
            $233.20 per week commencing as stipulated in the prehearing 
 
            report on July 11, 1989.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that, in file number 898516, 
 
            the Woodward State Hospital-School and State of Iowa pay 
 
            Judy Banks one hundred fifty (150) weeks of compensation for 
 
            permanent partial disability at the stipulated rate of two 
 
            hundred thirty-three and 20/100 dollars ($233.20) per week 
 
            payable commencing July 11, 1989.  Defendants are entitled 
 
            to credit in the total amount of sixteen thousand one 
 
            hundred fifty and 34/100 dollars ($16,150.34) representing 
 
            the permanent partial disability benefits previously paid 
 
            and the employer's credit under section 85.38(2) of The 
 
            Code.  All remaining accrued, past due amounts shall be paid 
 
            to the claimant in a lump sum together with interest 
 
            pursuant to section 85.30 computed from the date each 
 
            payment came due until the date of its actual payment.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 
            file numbers 917001 and 976638 as her entire entitlement to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            benefits for those injuries has been previously paid in 
 
            full.
 
            
 
                 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 a first 
 
            report of injury in file number 976638 for an injury of June 
 
            1, 1989, within thirty (30) days of the filing of this 
 
            decision.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Peter J. Leehey
 
            Attorney at Law
 
            801 Carver Building
 
            P.O. Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed February 28, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY BANKS,                   :
 
                                          :
 
                 Claimant,                :         File Nos. 898516
 
                                          :                   917001
 
            vs.                           :                   976638
 
                                          :
 
            WOODWARD STATE HOSPITAL       :      A R B I T R A T I O N
 
            SCHOOL,                       :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant, with admitted injury, awarded 30 percent permanent 
 
            partial disability.  The decision discusses the impact of 
 
            training obtained after the end of the healing period upon 
 
            the employer's permanent partial disability liability.
 
            
 
 
            
 
  
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MERLE G. HOFF, JR.,,          :
 
                                          :
 
                 Claimant,                :       File Nos. 898721
 
                                          :
 
            vs.                           :
 
                                          :
 
            CARL SCHULER MASONRY,         :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY, CIGNA       :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            ------------------------------:
 
                                          :
 
            MERLE G. HOFF, JR.,           :
 
                                          :
 
                 Claimant,                :          File No. 972014
 
                                          :
 
            vs.                           :
 
                                          :
 
            FORREST AND ASSOCIATES,       :       A R B I T R A T I O N
 
                                          :
 
                 Employer,                :          D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These cases came on for hearing on September 2, 1993, 
 
            at Des Moines, Iowa.  A motion to consolidate was filed 
 
            March 19, 1992 and sustained and the above two files were 
 
            consolidated along with another file (996097) with date of 
 
            injury of September 9, 1991).  File No. 996097 is not 
 
            involved in this hearing in any respect as there has been a 
 
            settlement in full.
 
            
 
                 Under the other two above file numbers, the employers 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            in each case have settled.
 
            
 
                 Regarding file number 898721, involving the September 
 
            27, 1988 injury, claimant was paid benefits for time off 
 
            work, medical care and 26 percent permanent partial 
 
            disability of the right leg.
 
            
 
                 Regarding file number 972014, involving the November 
 
            16, 1990 injury, claimant was paid benefits for time off 
 
            work, medical care and 20 percent permanent partial 
 
            disability of the right hand.
 
            
 
                 This, therefore, leaves the Second Injury Fund as the 
 
            only remaining party in this action except in file number 
 
            898721, there is a dispute also with the employer as to the 
 
            rate at which the benefits should be paid.
 
            
 
                 The record in the proceedings consists of testimony of 
 
            the claimant, Ann Schuler and claimant's exhibit 12, joint 
 
            exhibits 1 through 11, defendant employer Schuler's exhibits 
 
            A through F, and Second Injury Fund's exhibit A through H.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 As to file number 898721, injury date September 27, 
 
            1988, the only issue is between the employer and claimant as 
 
            to the rate at which benefits would be paid.
 
            
 
                 As to file number 972014, injury date November 16, 
 
            1990, the action is only between the Second Injury Fund and 
 
            claimant and the issues are:
 
            
 
                 1.  Whether the Second Injury Fund is liable for any 
 
            benefits to the claimant;
 
            
 
                 2.  The rate at which benefits, if any, are to be paid; 
 
            and,
 
            
 
                 3.  Whether claimant is an odd-lot candidate and within 
 
            this issue whether odd-lot should even be an issue in light 
 
            of the pleadings or lack of pleadings concerning the same.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified in person, at the hearing and also 
 
            through his deposition which originally started on June 3, 
 
            1992, and was continued and additional testimony taken on 
 
            July 30, 1992, represented by claimant's exhibits 2 and 2A.
 
            
 
                 Although claimant wasn't asked at the hearing, it 
 
            appears he was 49 years old at the time of his deposition in 
 
            June 1992.  Depositions of the claimant taken in June and 
 
            July 1992 were at that time reflecting file numbers 996097 
 
            and 898721, but 996097, which was a September 9, 1991 injury 
 
            apparently involving claimant's cervical spine, left 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shoulder and arm is not involved in this case even though 
 
            the deposition involved at the time litigation over that 
 
            file number and injury, also.
 
            
 
                 Claimant had an eighth grade education and then left 
 
            school because he didn't like it.  He has had no other 
 
            formal education since that time.  He learned the trade 
 
            through his father and grandfather and by doing that 
 
            particular work in the bricklaying industry.
 
            
 
                 Claimant testified as to his September 27, 1988 injury 
 
            in which he hurt his right leg when he missed a step of the 
 
            ladder and fell.  He also testified as to his November 16, 
 
            1990 injury to his right hand which was injured when it got 
 
            caught in a quick saw.  He explained the impairments that he 
 
            received as to each respective injury and file which was 26 
 
            percent for loss of the use of the right leg and 20 percent 
 
            permanent partial impairment to his right hand.
 
            
 
                 Claimant explained that after the 1990 injury to his 
 
            right hand, it hurt to spread the mortar and to climb and 
 
            walk on uneven ground.  He said he quit as a bricklayer and 
 
            worked his last day in September 1991.  He said he hurt his 
 
            left hand but there was no permanency.  He didn't indicate 
 
            when, the date or how it happen.  Claimant said the reason 
 
            he quit was because of his hand and knee problems but that 
 
            it wasn't his left hand that caused him to quit.
 
            
 
                 In his deposition, joint exhibit 2, he talks about his 
 
            September 9, 1991 injury as if it affected other parts of 
 
            his body other than the left hand but eventually indicates 
 
            it was his left hand that was primarily injured.  He then 
 
            indicates that he slipped again in 1991.  His testimony is 
 
            very confusing.  It appears from the deposition that after 
 
            his September 9, 1991 injury, it caused him to hurt worse 
 
            (Joint Exhibit, pages 38-40).
 
            
 
                 Claimant's deposition testimony covered considerable 
 
            testimony concerning his September 9, 1991 injury which 
 
            appears to have actually affected several parts of his body.
 
            
 
                 Although claimant indicated he quit work as a 
 
            bricklayer in September of 1991, on page 65 it is obvious he 
 
            was doing that work even though it wasn't for a company out 
 
            of the union hall.  In his testimony in court, he referred 
 
            to Bob Thoresen as to a person for whom he was doing some 
 
            brick work.  It would seem from the deposition testimony and 
 
            his testimony in court that he wasn't in as bad a shape as 
 
            he allegedly contends.
 
            
 
                 Claimant testified that he has received no income 
 
            except from the farm and leaves the impression that it is a 
 
            no profit situation.  He has thirteen and one-half acres and 
 
            raises corn, beans and cattle.  At the time of hearing, he 
 
            indicated he had 15 cows.  In his deposition, on page 70, 
 
            and following, he indicates he sells peacocks and turkeys in 
 
            addition to cows and also sells old cars.  On page 2 and 9 
 
            of his deposition, he indicates he also raises horses, 
 
            chickens and sheep.  He also indicated that he and his two 
 
            boys take care of an additional 100 acres of property 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            surrounding his place owned by his father-in-law.  He and 
 
            his two children do the mowing, fix the fences, and do the 
 
            repairing, etc.
 
            
 
                 He shows horses all over the United States and also 
 
            rides the horses at times (page 18).
 
            
 
                 When claimant was asked as to jobs he applied for since 
 
            leaving defendant employer, Forrest & Associates, Inc., he 
 
            indicated that he couldn't remember them all.  It is obvious 
 
            from the deposition that he only attempted to apply for a 
 
            very few jobs.  His memory loss on this situation is 
 
            suspicious.  The undersigned questions the claimant's 
 
            credibility on this issue and believes that claimant made 
 
            little or no effort to find a job.
 
            
 
                 Claimant indicated that in 1992, he was soon going to 
 
            take over full time operating the farm because his 
 
            father-in-law was 80 years old and was unable to take care 
 
            of it (Jt. Ex. 3, p. 78).  He felt taking care of the cattle 
 
            alone was going to be full time.  He was going to have at 
 
            least 25 in the summer.
 
            
 
                 Claimant testified that the doctors recommend he not 
 
            work due to his panic disorder.  It appears he has gone to 
 
            the hospital at least 30 times.  He didn't say exactly what 
 
            period of time this was in (Jt. Ex. 2, p. 80).
 
            
 
                 Claimant indicated he had applied for unemployment in 
 
            November 1991 and was denied benefits.  It appears he needed 
 
            a release from the doctor and it appeared this release had 
 
            to do with his panic attack disorder.
 
            
 
                 Claimant indicated that he was first having these 
 
            attacks in 1984 after he quit smoking.  He thought at first 
 
            they were heart attacks or strokes and he would be going to 
 
            the hospital because of it.  They would last from 12 to 24 
 
            hours and he would be completely incapacitated.  He indicted 
 
            that these attacks would be brought on either by stress or 
 
            breathing smoke or breathing differently, people hollering 
 
            or screaming at one another, etc.  He indicated when the 
 
            foreman makes fun of you or other people, that can bring 
 
            them on.  Claimant also indicated that his back problems 
 
            still give him problems and there are a lot of days he 
 
            didn't go to work because his back was bothering him.  He 
 
            said every bricklayer has a bad back and if they say they 
 
            don't, they are lying (Jt. Ex. 2, pp. 99-101).
 
            
 
                 Claimant gave other examples that would cause him to 
 
            have panic attacks, one of which would be when a employer or 
 
            boss would get mad because he wouldn't work Saturdays or 
 
            overtime.  A June 1992 deposition was adjourned because 
 
            claimant was having a panic attack.  The deposition was 
 
            rescheduled for July 30, 1992.  On page 19 of joint exhibit 
 
            2A, claimant indicated that his panic attacks are getting 
 
            worse and they can come on at any time.
 
            
 
                 Claimant said he is receiving social security benefits.  
 
            The attorney for defendant employer Carl Schuler Masonry was 
 
            also the attorney for the General Casualty Insurance 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Company.  She cross-examined claimant and it was obvious 
 
            none of the bills set out on claimant's exhibit 9 which 
 
            total $2,255.49 had anything to do with the September 27, 
 
            1988 injury.  If there was a question, claimant has not 
 
            carried his burden.  He was very unimpressive concerning 
 
            this part of his testimony.  There is no question that he 
 
            received $18,454.43 that was paid by said defendant 
 
            insurance company as to the 20 percent permanent partial 
 
            disability of his right leg which involved several thousands 
 
            of dollars in medical.  The undersigned therefore finds that 
 
            defendant employer and defendant insurance company are not 
 
            responsible for any medical that may be at issue herein, 
 
            which includes those items listed on joint exhibit 9.
 
            
 
                 Pursuant to the same cross-examination, it is clear 
 
            that contributions to the health and welfare fund, pension 
 
            fund, masonry promotion fund, apprenticeship program and 
 
            Unicon Development fund totaling $2.89 per hour are made 
 
            directly by the employer to the funds and not by the 
 
            employee.
 
            
 
                 On cross-examination by the Second Injury Fund, he was 
 
            referred to the 1985 injury to his right hand in which he 
 
            filed a workers' compensation claim, represented by file 
 
            number 856869.  Claimant said nothing was paid.  The 
 
            undersigned was asked to take judicial notice and the 
 
            undersigned indicated he will take judicial notice of 
 
            claimant's record and files at the divisional of industrial 
 
            services.  Contray to what claimant testified to under oath, 
 
            the record shows claimant received $2,250 for his alleged 
 
            November 15, 1985 injury to his right wrist.
 
            
 
                 Claimant was asked again about his panic attacks and 
 
            his telling the doctor that he had them two or three times a 
 
            week and lasted 24 to 48 hours.  He indicated again he does 
 
            not know what brings on these attacks but thought they began 
 
            in 1984 when he quit smoking.  He again emphasized that they 
 
            come on without warning two or three times a week now.  He 
 
            said he wants to stay home because of this condition.  He 
 
            then was referred to another workers' compensation claim he 
 
            filed against Forrest and Associates, Inc., for an injury of 
 
            September 9, 1991, represented by file number 996097, for 
 
            which the undersigned was requested to take judicial notice 
 
            and will take judicial notice.  Said record shows claimant 
 
            received $15,000 in a special case settlement filed June 17, 
 
            1993.  The petition alleged left arm and body as a whole, 
 
            odd-lot injury.
 
            
 
                 Claimant was asked concerning the doctor releasing him 
 
            in February 1992 as a result of his September injury.  He 
 
            said this September 1991 injury hurt his left hand, shoulder 
 
            and neck even though his neck was already hurting.  Also, 
 
            there was a question about a herniated disc in his neck.  
 
            Claimant acknowledged that he didn't work since the 
 
            September 9, 1991 incident.
 
            
 
                 Claimant then was asked regarding his being released to 
 
            go back to work in February 1992, after his September 1991 
 
            injury and claimant then seemed to change his story and 
 
            indicated he didn't recall looking for work after February 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            24, 1992, even though earlier he seemed to indicate he tried 
 
            to look for work.
 
            
 
                 Claimant also acknowledged that he hasn't tried to get 
 
            further education or training.  He then was referred to page 
 
            2, paragraph 6, of the statement of need, joint exhibit 7, 
 
            in reference to file number 972014 and his settlement with 
 
            defendant employer in which he desired a commutation of 
 
            benefits where he could receive a lump sum rather than over 
 
            a period of time.  In that statement of need, claimant 
 
            indicated that he planned at that time that he was going to 
 
            pursue his education at Area 11 Community College to assist 
 
            him in vocational rehabilitation and that the lump sum award 
 
            would allow him to achieve his endeavor.  Claimant said he 
 
            never did do this and that he needed more money for his son 
 
            to help him go to college or get an education.  The 
 
            undersigned might note he is not impressed with claimant's 
 
            testimony, demeanor and credibility.
 
            
 
                 Ann Schuler testified that she is secretary-treasurer 
 
            of defendant employer Carl Schuler Masonry and prepares the 
 
            payroll and oversees things.  She said claimant was paid 
 
            $15.44 per hour and the employer provides the fringe 
 
            benefits under Article XIV, page 9, of the Bricklayers and 
 
            Allied Craftsmen Local Union No. 2 Agreement, represented by 
 
            defendant employer's exhibit A.  It sets out that the 
 
            employer shall contribute $1.30 per hour for each hour of 
 
            work into the health and welfare fund, $1.50 into the 
 
            pension fund, $.05 to the masonry promotion fund, $.02 to 
 
            the apprenticeship program, and $.02 to the Unicon 
 
            development fund (Def. Ex. A, pp. 10-13).  These total an 
 
            additional $2.89.  She said claimant never personally 
 
            received these funds and that they are separate from any 
 
            wages paid to the claimant.  She said there was never any 
 
            taxes withheld as to any fringe benefits but only as to the 
 
            $15.44 hourly amount.
 
            
 
                 Mervin F. Doty testified through his deposition of 
 
            September 1, 1993 (Cl. Ex. 12).  He is currently, since 
 
            February 1988, the bricklayers business agent for Local No. 
 
            2, Iowa, and takes care of the day-to-day business in that 
 
            particular office.  Mr. Doty basically affirmed Mrs. 
 
            Schuler's testimony as far as the terms of the contract and 
 
            what is withheld for fringe benefits.  He disagrees with 
 
            defendants' position that the fringe benefits are not wages.  
 
            Mr. Doty contends that the $2.89 fringe benefits are wages 
 
            even though they are not shown on one's paycheck nor are 
 
            they actually received in (claimant's) hands.  They are 
 
            direct contributions from the employer to the respective 
 
            funds.  He agrees that they are paid in addition to 
 
            claimant's $15.44 per hour wage.  Mr. Doty emphatically 
 
            contends that the fringe benefits are wages.  This testimony 
 
            is somewhat confusing as to his interpretation or testimony 
 
            concerning taxes, fringe benefits, whether FICA is paid, or 
 
            what is paid on or not paid on, and also mixing up 
 
            claimant's right to make voluntary payments versus the 
 
            situation under the contract when an employer does not make 
 
            the contribution and yet the employee has worked certain 
 
            hours.  The undersigned interprets the contract to mean that 
 
            when the employee actually puts in the hours and get his 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            hourly wage, he gets credit for the contributions and if 
 
            they are not made by the employer, the union can sue under 
 
            the contract but the employee's benefits in reference to 
 
            those hours are not cancelled or eliminated.  The employee 
 
            is still credited.  The contract provides that voluntary 
 
            payments can be made by an employee if he is not working and 
 
            not having any hours credited in order to keep certain 
 
            benefits current.  These then are out of his own pocket.
 
            
 
                 Douglas Reagan, M.D., an orthopedic surgeon, testified 
 
            through his deposition represented by claimant's exhibit 1.  
 
            At the time of this deposition, there were three injuries 
 
            involved, namely, September 27, 1988, November 16, 1990 and 
 
            September 9, 1991.
 
            
 
                 The doctor testified that in January 1991 he was 
 
            measuring certain motions and treating claimant concerning 
 
            both the right and left hand, there being less motion on the 
 
            right than on the left.  He referred to the surgery he did 
 
            on the right hand on February 12, 1991.  He said he 
 
            determined that claimant had a 20 percent permanent partial 
 
            impairment of the right hand and that he had reached maximum 
 
            medical improvement as of July 1991.
 
            
 
                 The doctor acknowledged that claimant saw the doctor 
 
            again concerning a September 9, 1991 injury when claimant 
 
            slipped at work and jammed his right and left arm.  The 
 
            doctor acknowledged that when he saw claimant on August 1, 
 
            1991, he had released him and he could return if he 
 
            requested an appointment (Jt. Ex. 1, p. 13).
 
            
 
                 The doctor testified that from June 10, 1991 until 
 
            December 1991, he was released for full duty but that after 
 
            that date, he believed that claimant had work limitations as 
 
            a bricklayer (Jt. Ex. 1, p. 22).  The doctor said in his 
 
            examination in July of 1992, pursuant to claimant's 
 
            September 9, 1991 injury, he also noticed claimant was 
 
            tender in his back and neck and across his shoulder and down 
 
            between his scapula at that time.  He had tenderness of the 
 
            exterior carpi ulnaris muscle which is near the ulna, the 
 
            end of the ulna bone or the base of the hand which we 
 
            sometimes see with tendinitis, all of which were on the left 
 
            side.  Some of the things he had on both sides (Jt. 1, p. 
 
            26).
 
            
 
                 The doctor indicated he believed Mr. Hoff told him he 
 
            had panic disorder but didn't mention the depressive nature 
 
            of it.
 
            
 
                 Claimant's attorney then asked the doctor concerning 
 
            the 26 percent rating of claimant's right leg from the other 
 
            injury which would be the September 27, 1988 injury and the 
 
            20 percent permanent partial impairment of the right hand 
 
            based on Dr. Reagan's treatment which would be in reference 
 
            to the November 16, 1990 injury.  Dr. doctor agreed with the 
 
            claimant's conclusion that those two figures would amount to 
 
            20 percent of claimant's body as a whole (Jt. Ex. 1, p. 30).
 
            
 
                 The doctor was questioned concerning his report of July 
 
            30, 1992, in which he referred to claimant working as a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            bricklayer.  He was not sure or clear as to whether he was 
 
            referring to him working as a bricklayer at that time or 
 
            whether he was, in fact, a bricklayer, but it seems certain 
 
            that the doctor understood he was working at that time (Jt. 
 
            Ex. 1, p. 43).  The doctor also noticed extremely heavy 
 
            calluses on claimant's right hand as well as an amount of 
 
            ground in dirt on the hand.  This indicated to him that 
 
            claimant was using the hands, especially in heavy work, as 
 
            that causes calluses and if he wasn't using his hands there 
 
            would not be any calluses.
 
            
 
                 Dr. Reagan could not with any certainty attribute 
 
            claimant's problems that he saw in 1992 to a September 1991 
 
            injury.  He used the word "possible" in many instances as to 
 
            what it might be attributed to but it is obvious from his 
 
            testimony that he is not sure and also it appears he did not 
 
            have as much history as he would like and that he was 
 
            strictly guessing and that is obvious why he was using the 
 
            word "possible."  It appeared from the questioning by the 
 
            defendants' attorney in that case who was not involved in 
 
            this current case hearing, that he was trying to have the 
 
            doctor relate any problems claimant was having to some event 
 
            prior to the September 9, 1991 alleged injury which is 
 
            referred to in file number 996097, which has been settled 
 
            and is not a part of this hearing herein.
 
            
 
                 It is clear that the doctor has a suspicion that this 
 
            September 1991 alleged injury caused many of claimant's 
 
            problems that he was complaining of because he didn't have 
 
            them before that date but, likewise, he didn't know what 
 
            activities claimant was doing and he couldn't opine to any 
 
            reasonable degree of medical certainty.
 
            
 
                 There is no question claimant has considerable 
 
            arthritis, also, which confuses the picture.  The doctor 
 
            also agreed that if you superimposed on the arthritis, a 
 
            trauma that occurred on September 9, 1991, it would be an 
 
            aggravating factor.
 
            
 
                 The undersigned can conclude one thing from Dr. 
 
            Reagan's deposition and that is that with the considerable 
 
            injuries claimant has had and other problems including his 
 
            panic disorder, this doctor really doesn't know all the 
 
            causes of claimant's problems and what particular instance 
 
            they may relate to.  It seems like he can only talk in terms 
 
            of possibilities.  This, on top of incomplete history and 
 
            not knowing all that claimant was doing, further confuses 
 
            the record and any conclusion the doctor would try to make 
 
            concerning this case.
 
            
 
                 It appears to the undersigned a large amount of the 
 
            testimony was involving the September 9, 1991 injury and how 
 
            it was or wasn't affected by other injuries or what damages 
 
            it may have caused and when and where.  The undersigned 
 
            notes that that case, 996097, was settled around June 17, 
 
            1993.
 
            
 
                 There are various reports and doctor records that are a 
 
            part of joint exhibit 1.  The undersigned sees no need to go 
 
            into detail concerning these as the doctor testified in 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            reference to those, but there is no dispute as to certain 
 
            impairments claimant had as to certain respective injuries.  
 
            The main fighting issue right now is basically the 
 
            liability, if any, of the Second Injury Fund.  It is not as 
 
            to the extent of any individual permanent disability to 
 
            either the right or left upper or lower extremities.  One 
 
            must note that on the examination of June 3, 1991, a patient 
 
            status report reflects that claimant is able to return to 
 
            full duty on June 10, 1991, with no restrictions.  Page 80 
 
            of joint exhibit 3 is a letter of Rick D. Turner, M.D., a 
 
            psychiatrist, who wrote a letter to "To Whom It May Concern" 
 
            on November 5, 1987.  He indicated that claimant was under 
 
            his care for treatment of panic disorder and required a 
 
            utilization of medication by the name of Xanax which can 
 
            cause some disturbance of balance which can manifest itself 
 
            as unsteadiness.  He was concerned how this might affect his 
 
            ability in riding and might be noticeable to the judges in 
 
            his upcoming competition.  The doctor emphasized that it was 
 
            medically necessary that claimant remain on Xanax 
 
            continuously.  The evidence shows claimant rides horses in 
 
            competition.
 
            
 
                 In the initial vocational assessment of claimant, dated 
 
            July 9, 1993, page 82 of the report, claimant told the 
 
            vocational specialist that he stopped working in September 
 
            of 1991 due to both his increasing physical pain and his 
 
            anxiety attacks.  Page 85 of said report concludes in part 
 
            that the reports conclusions are exclusive of claimant's 
 
            diagnosed panic attack which, according to the December 23, 
 
            1992 evaluation by Michael J. Taylor, M.D., would eliminate 
 
            all competitive employment regardless of any physical 
 
            restrictions.
 
            
 
                 Dr. Taylor's report of December 23, 1992 is represented 
 
            by joint exhibit 3, pages 87-95.  It is interesting to note 
 
            that under the title "Health," the report indicates "Except 
 
            for the back problem which has existed since age 18, he 
 
            stated he has no other specific problem."  Under the 
 
            category of "Previous History of Depression," it states, in 
 
            part, that claimant couldn't stand people who "fake it" and 
 
            further that "if you know the system, you wouldn't have to 
 
            work."  Claimant did acknowledge some suicidal thinking in 
 
            the past but nothing serious.  He phrased it more in 
 
            wondering why he should get up and go to work on days.
 
            
 
                 Claimant's exhibit 4 is a social security determination 
 
            dated January 24, 1993, in which claimant was determined to 
 
            be disabled on September 9, 1991.
 
            
 
                 Joint exhibit 5 is claimant's tax returns for certain 
 
            years beginning in 1985 through 1992.  Of those respective 
 
            years his income ranged from $12,483 to a high of $24,893 in 
 
            1988 to $17,408 in 1991.  He had no income as to wages shown 
 
            for 1992.  Claimant quit work in September 1991 so this 1991 
 
            income was for approximately three-fourths of a year.  
 
            Claimant testified that in the bricklaying business you have 
 
            a certain amount of time during the year in which you are 
 
            normally out of work or laid off because of the weather 
 
            unless there is sufficient inside work to do and, also, 
 
            depending on the weather during the year.  It would almost 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            appear to the undersigned, considering it is only a part of 
 
            the year, that claimant had considerable income, if you 
 
            consider how bad he claims he really was.
 
            
 
                 The Second Injury Fund's exhibit A is claimant's 
 
            answers to interrogatories which are dated February 17, 
 
            1992.  It is interesting to note that on page A-6, claimant 
 
            can only recall one potential employer he contacted and was 
 
            trying to remember others.  Page A-7 lists numerous injuries 
 
            claimant has had beginning in 1984.  Page A-16 of Second 
 
            Injury Fund's exhibit A, in answer to interrogatory No. 12, 
 
            claimant states "I am unemployed as a result of all of my 
 
            injuries and I believe it is a combination of them, 
 
            including the First and Second injury Fund entitling me to 
 
            Second Injury Fund Benefits."
 
            
 
                 The Second Injury Fund's exhibit A, page 29, claimant's 
 
            answer to interrogatory No. 25, is of interest, as claimant 
 
            answered that he felt he suffered a 100 percent industrial 
 
            disability and attributed 50 percent of that to his first 
 
            injury which would mathematically leave a maximum of 50 
 
            percent left and then he attributes another 50 percent to 
 
            his second injury.  Taking said questions and answers at 
 
            face value, it would leave no industrial disability left 
 
            considering the first and second injuries for purposes of 
 
            Second Injury Fund liability.  One can't have more than 100 
 
            percent industrial disability.  Of course, this answer does 
 
            not address, as shown by other medical records, the effect 
 
            of other injuries claimant has had plus his panic disorders.
 
            
 
                 Second Injury Fund's exhibit D, page 18, reflects 
 
            interrogatory No. 15 and claimant's answer.  Although dates 
 
            and places were requested, the claimant answered that he has 
 
            had panic attack syndrome diagnosed since 1987 and he breaks 
 
            into masses of sweat and becomes disorientated.  He breathes 
 
            heavy and it takes about 24 hours to recover.  He indicated 
 
            he has been to the hospital at least 15 to 20 times at Iowa 
 
            Lutheran in Des Moines plus hospitals in two other states.  
 
            From claimant's testimony, the records and his observance at 
 
            the trial, it appears that he has had them right up and 
 
            including the hearing time and he doesn't state the number 
 
            of times he has had attacks that didn't send him to the 
 
            hospital.
 
            
 
                 Second Injury Fund's exhibit F is the records of the 
 
            Iowa Institute of Orthopaedics and Rodney E. Johnson, M.D., 
 
            in which on February 25, 1992, he indicates the conditions 
 
            causing claimant's present disability were cervical 
 
            spondylolysis, shoulder contusion and elbow contusion.  In 
 
            January of that year, the doctor believed that claimant had 
 
            reached maximum medical improvement and that it appears he 
 
            would be getting into work conditioning and then released 
 
            with restrictions in the near future.  Page F-6 of said 
 
            exhibit is the release of claimant back to work by Dr. 
 
            Johnson for February 24, 1992.
 
            
 
                 Second Injury Fund's exhibit H, page 3, is a letter 
 
            from Dennis K. Hopkins, D.O., who refers to claimant's March 
 
            12, 1993 motor vehicle accident in which claimant felt 
 
            immediate discomfort in his neck, shoulders and medial right 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            knee and these were continuing into April 1993.  Page 4 of 
 
            said exhibit shows on June 7, 1993, that claimant still had 
 
            a stiff neck and could hardly move it and that the range of 
 
            motion in his right knee was good and there was no swelling.  
 
            Page 4 of said exhibit shows he had a panic attack that 
 
            morning, April 7, 1993.
 
            
 
                 Claimant contends that he is owed money from the Second 
 
            Injury Fund because of the increased industrial disability 
 
            as a result of a first injury occurring on September 27, 
 
            1988 to his right knee or leg in which he had a 26 percent 
 
            permanent partial disability and as a result of his second 
 
            injury which occurred on November 16, 1990 to his right 
 
            hand, which resulted in a 20 percent permanent partial 
 
            disability, and that these two injuries caused him to have 
 
            an increased industrial disability, or if he had no prior 
 
            industrial disability, it caused him to have an industrial 
 
            disability.
 
            
 
                 The undersigned might note that he was not impressed 
 
            with claimant, his demeanor, his attitude and credibility 
 
            and believes it is also reflected in the evidence.  The 
 
            undersigned does not believe that claimant is motivated and 
 
            that claimant could find some work but doesn't want to.  
 
            Claimant has been in substantial litigation and now being 
 
            determined to be totally disabled by social security has 
 
            made no effort to find employment.  He has no incentives.  
 
            The undersigned questions claimant's attempt to find 
 
            employment since he quit work in September of 1991.
 
            
 
                 Claimant has had numerous injuries.  Claimant has had 
 
            several settlements of workers' compensation claims.  It is 
 
            undisputed by claimant's own testimony that he has had panic 
 
            disorders for a number of years and it is obvious from the 
 
            record and claimant's own testimony that he is still having 
 
            panic attacks and that they are immobilizing him at times.  
 
            Claimant admitted in the record and in the evidence of this 
 
            case that one of the reasons he quit was because of his 
 
            panic attacks.  Claimant had a panic attack during his 
 
            hearing even though he testified he took a double dose of 
 
            medicine before coming to court.
 
            
 
                 Claimant is able to do things at his place of residence 
 
            whether it be raising cattle, horses, other livestock or 
 
            tending to farm duties.  Claimant has been doing these and 
 
            the undersigned believes he is still doing them up to the 
 
            present.  The undersigned believes claimant when he made a 
 
            comment that he could work if it were not for panic attacks.
 
            
 
                 Claimant was returned to work with no restrictions on 
 
            June 10, 1992.  It appears that claimant's September 9, 1991 
 
            injury convinced him to stop working as he hasn't worked 
 
            since that time.  Social security determined him disabled as 
 
            of that time.
 
            
 
                 Dr. Reagan, on page 22 of joint exhibit 1, testified 
 
            that claimant was released to full duty from June 10, 1991 
 
            until the December date of 1991.
 
            
 
                 The evidence is clear to the undersigned that after his 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            first and second injuries alleged in this current trial, he 
 
            was doing other work even though it might not have been 
 
            through the union hall.  He seemed to think if he couldn't 
 
            do the full blown bricklayer's work even though he could do 
 
            most everything else, that he shouldn't work.  He helped a 
 
            friend for several hours a day and week at times.  When 
 
            claimant saw doctors, they didn't have the full history, 
 
            particularly as to his panic attacks.  In some instances, 
 
            claimant's problems in that respect was either not disclosed 
 
            or the extent of it was minimized.
 
            
 
                 It would appear, taking all the benefits he has 
 
            received concerning the two cases under consideration 
 
            herein, and also the September 19, 1991 case represented by 
 
            file number 996097, that claimant has received over $81,000 
 
            in benefits.  The last settlement in June of 1993 on the 
 
            September 1991 case is obvious to the undersigned involving 
 
            a body as a whole.  It was after that injury that claimant 
 
            quit.
 
            
 
                 Again, the undersigned questions claimant's 
 
            credibility.  On the date of the hearing, after there was 
 
            extensive direct and cross-examination, and when the 
 
            claimant's attorney continued some redirect examination, the 
 
            claimant began having a panic attack.  The undersigned can 
 
            believe by the nature of claimant's answers and again the 
 
            nature of his response, that this was additional stress on 
 
            the claimant as he seemed to be getting himself into a "hot 
 
            box."  In one of the cases before us, file 972014, claimant 
 
            set out in his statement of need, paragraph 6 on page 2 of 
 
            joint exhibit 7, that his reason for the commutation and 
 
            lump sum was that he planned to pursue education at Area 11 
 
            Community College to assist him in his vocational 
 
            rehabilitation and the lump sum would allow him to achieve 
 
            that endeavor.  It is obvious from claimant's testimony and 
 
            the record, that he never pursued this and didn't follow up.  
 
            Taking everything as a whole and considering claimant's 
 
            demeanor, the undersigned does not believe he ever intended 
 
            to follow up.
 
            
 
                 Claimant has the burden and claimant has failed to 
 
            carry his burden to show that he is entitled to any benefits 
 
            from the Second Injury Fund.  The undersigned finds that the 
 
            overwhelming evidence shows that claimant has a multitude of 
 
            problems, many different injuries and there is no 
 
            preponderance of the evidence to show what in fact is 
 
            causing claimant's current problems other than a combination 
 
            of many things.  The undersigned further finds that he 
 
            believes the record is clear that the panic disorder that 
 
            claimant has in and of itself is most likely the 
 
            overwhelming contributor to claimant's inability to work, 
 
            particularly as a bricklayer.  It appears the September 1991 
 
            injury precipitated claimant's beginning of seeking total 
 
            disability for social security purposes and, also, quitting 
 
            work.  Claimant has admitted that one of the reasons he quit 
 
            work was because of a panic attack but also a combination of 
 
            all the other injuries.
 
            
 
                 The undersigned finds that claimant takes nothing from 
 
            these proceedings and the Second Injury Fund is not liable 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            for any benefits.
 
            
 
                 Although the following issue is now moot as to the 
 
            Second Injury Fund, in light of the above ruling, as to the 
 
            defendant employer, the undersigned finds that claimant's 
 
            rate of compensation if benefits had been awarded would be 
 
            based on claimant's hourly wage of $15.44 or the rate would 
 
            be based on a gross wage of $491.68, which would exclude the 
 
            approximately $2.89 per hour contributions by the employer 
 
            for health and welfare, pension, masonry promotion fund, 
 
            apprenticeship program and Unicon Community Development 
 
            Fund.  The $2.89 is contributions made by the employer and 
 
            not the employee, contrary to what Mr. Doty tried to 
 
            indicate in claimant's exhibit 12. Notwithstanding his 
 
            extremely biased opinion and partially confused testimony, 
 
            those are not amounts that would be taken into consideration 
 
            in determining claimant's rate.  Claimant contends the gross 
 
            amount on which a rate should be determined would be $599 
 
            which would amount to a weekly rate of $364.80 based on four 
 
            exemptions and based on an November 16, 1990 injury.  The 
 
            claimant is contending that in the commutation settlement in 
 
            file number 972014, the weekly rate used was $364.80 for the 
 
            November 16, 1990 injury.  Claimant contends that since that 
 
            rate was used it binds the employer in the case now before 
 
            the undersigned even if it was done in error.  The 
 
            undersigned rejects that thinking and whatever the correct 
 
            rate should be notwithstanding a prior error, that should be 
 
            the rate.  The undersigned therefore finds that if in fact 
 
            there were benefits awarded here, the weekly rate would have 
 
            been $304.71.  This rate is the same rate to be used in 
 
            computing the defendant employer's prehearing settlement 
 
            with claimant.
 
            
 
                 Although the issue as to the bills which amount to a 
 
            maximum of $2,255.49 is also moot in light of the above, the 
 
            undersigned finds that claimant failed to prove that those 
 
            were as a result of either of claimant's September 1988 or 
 
            November 1990 injury.  In fact, in looking at the dates, it 
 
            would appear that they had nothing to do with either of 
 
            these injuries but had to do with claimant's other problems.  
 
            Therefore, the defendants, including the Second Injury Fund 
 
            are not responsible for payment of any of those bills.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            16, 1990, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 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).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant failed to carry his burden of proof to show 
 
            that there is a causal connection between his claimed 
 
            disability and claimant's first injury of September 27, 1988 
 
            and his second injury of November 16, 1990.
 
            
 
                 Claimant had considerable other injuries and ailments 
 
            and a combination of those ailments including claimant's 
 
            long suffering from panic attacks are in and of themselves 
 
            sufficient to cause claimant's current disability.
 
            
 
                 Claimant's history of panic attacks even up to the time 
 
            of hearing are sufficient evidence themselves to cause 
 
            claimant's total disability.
 
            
 
                 Claimant's panic attacks were not caused by or the 
 
            result of claimant's injuries, particularly the September 
 
            27, 1988 and November 16, 1990 injuries or a combination 
 
            thereof as first and second injuries.
 
            
 
                 Claimant is not motivated.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 Claimant is not a credible witness.
 
            
 
                 Claimant is able to perform some work and, in fact, is 
 
            performing certain work in connection with his acreage, 
 
            raising and showing of horses, raising and selling of 
 
            cattle, etc.
 
            
 
                 Claimant failed to prove that any of the medical bills 
 
            were related to or the result of claimant's first and second 
 
            injury or that they are the responsibility of Second Injury 
 
            Fund or the employer.
 
            
 
                 If claimant was entitled to benefits, benefits would be 
 
            based on claimant's gross income of $491.68 and the weekly 
 
            rate would be $304.71, based on four exemptions.  This 
 
            $304.70 rate is the rate at which the defendant employer 
 
            shall pay on the case settled prior to the hearing as 
 
            between the claimant and defendant employer, Schuler.
 
            
 
                 Claimant's wage for purposes of figuring any rate would 
 
            have been $15.44 per hour and not $15.44 plus $2.89, 
 
            representing fringe benefits involving health and welfare 
 
            fund, pension fund, apprentice program, masonry promotion 
 
            fund and Unicon Development fund.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant shall pay the costs of this action.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Harry W Dahl, Sr
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            Mr Thomas J Logan
 
            Ms Jane Lorentzen
 
            Attorneys at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Craig Kelinson
 
            Attorney Generals Office
 
            Tort Claims
 
            Hoover Building
 
            Des Moines IA 50319
 
 
 
 
 
 
 
 
            
 
 
 
          
 
 
 
                                            5-3200; 3002
 
                                            Filed September 23, 1993
 
                                            Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MERLE G. HOFF, JR.,           :
 
                                          :
 
                 Claimant,                :       File Nos. 898721
 
                                          :
 
            vs.                           :
 
                                          :
 
            CARL SCHULER MASONRY,         :
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY, CIGNA       :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            ------------------------------:
 
                                          :
 
            MERLE G. HOFF, JR.,           :
 
                                          :
 
                 Claimant,                :          File No. 972014
 
                                          :
 
            vs.                           :
 
                                          :
 
            FORREST AND ASSOCIATES,       :       A R B I T R A T I O N
 
                                          :
 
                 Employer,                :          D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3200
 
            Found claimant not entitled to Second Injury Fund benefits 
 
            in file number 972014.
 
            
 
            3002
 
            In file number 898721, found rate would be $304.71 based on 
 
            a wage of $15.44 per hour which would not have added to it 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            $2.89 per hour ($1.30 per hour for health and welfare fund, 
 
            $1.50 per hour pension fund, $.05 to masonry promotion fund, 
 
            $.02 to apprenticeship program, and $.02 to the Unicon 
 
            development fund) in order to arrive at the weekly rate.