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, Page 3 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 Page 4 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.