Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GINGER SPIKE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913731
 
            AALFS MANUFACTURING,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 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.
 
            
 
                                      issues
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  The issues claimant raised on 
 
            appeal are:
 
            
 
                 1. Not allowing T.T.D. after April 3, 1990;
 
            
 
                 2. Not allowing payment of Claimant's necessary 
 
                    medical expenses after Defendants' denial of 
 
                    liability; and
 
            
 
                 3. Awarding a five percent (5%) of the body rating 
 
                    allegedly based on "agency expertise" not the 
 
                    higher evaluation of the two experts, who 
 
                    actually rated Claimant's injuries.
 
            
 
                 The issues raised on cross-appeal by defendants 
 
                    are:
 
            
 
                     I.  Did the deputy industrial commissioner err 
 
                 in finding claimant established by a preponderance 
 
                 of the evidence an injury arising out of and in 
 
                 the course of her employment?
 
            
 
                    II.  If the deputy industrial commissioner 
 
                 correctly found an injury arising out and in the 
 
                 course of claimant's employment, did he err in 
 
                 finding a causal connection between that injury 
 
                 and claimant's disability?
 
            
 
                                 findings of fact
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed July 1, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 Claimant, Ginger Spike, started work for employer on 
 
            July 17, 1979.  Her position with employer is best described 
 
            as assembly line work in a clothing manufacturing company.  
 
            Claimant's duties in 1989 consisted of the assembly of 
 
            zippers to cloth by means of a sewing machine.  Claimant 
 
            would perform this task some 60 times every 10 minutes.  
 
            Simple mathematics indicates that claimant would assemble 
 
            2880 zippers in an 8-hour day.
 
            
 
                 It is found that claimant's work for employer required 
 
            the highly repetitive use of her upper extremities.
 
            
 
                 Claimant, in February 1989, began experiencing pain in 
 
            both upper extremities which she associated with her work 
 
            for employer.  Claimant alleged that on March 9, 1989, she 
 
            sustained a cumulative trauma injury to her upper 
 
            extremities.  She testified that in March her left wrist and 
 
            arm became very sore. She also had discomfort in her right 
 
            arm, but it wasn't as severe as the left.  Claimant 
 
            continued to work until March 27, 1989, when she was 
 
            restricted from work by Richard Budensiek, D.O.  The 
 
            diagnosis was extensor tendinitis (exhibit 9).  To date of 
 
            hearing, claimant has not returned to work.  She is 
 
            presently receiving social security disability due to 
 
            continued hand problems.
 
            
 
                 The first issue is whether claimant sustained an injury 
 
            which arose out of and in the course of employment on March 
 
            9, 1989.  Claimant has the burden of proof with respect to 
 
            this issue.
 
            
 
                 Claimant has clearly established that she was in the 
 
            course of employment at the time the alleged injury 
 
            occurred.  The more difficult issue is whether the hand 
 
            condition "arose out of" the employment.  In other words, is 
 
            the upper extremity symptomatology caused by repetitive work 
 
            for the employer?
 
            
 
                 Claimant was examined and treated by an unusually large 
 
            number of doctors subsequent to her injury.  It is not 
 
            uncommon for such professionals to differ in their 
 
            diagnoses.  However, the doctors treated and examined 
 
            claimant during different periods of time.  Therefore, some 
 
            justification for the disparity may exist.
 
            
 
                 The analysis of whether claimant's upper extremity 
 
            injuries were caused by work for employer must focus on the 
 
            alleged injury date of March 9, 1989.
 
            
 
                 Richard Budensiek, D.O., generally opined that claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was suffering from work-related epicondylitis and tendinitis 
 
            in March, April and May of 1989.  Later in his treatment he 
 
            diagnosed reflex sympathetic dystrophy.  However, he backed 
 
            away from the latter diagnosis after a normal bone scan (ex. 
 
            22).  During the entire period Dr. Budensiek believed the 
 
            upper extremity complaints to be work related.  He referred 
 
            claimant to orthopedist Kevin Liudahl, M.D., on March 4, 
 
            1989 (ex. 18).  
 
            
 
                 Dr. Liudahl believed that claimant had tendinitis and 
 
            synovitis secondary to overuse, and continued to restrict 
 
            claimant from work (ex. 19).  Dr. Liudahl referred claimant 
 
            to B. Krysztofiak, M.D., for nerve conduction studies which 
 
            came back as normal.  The reason for admission was noted as 
 
            pain in both wrists due to work-related injury  (ex. 23).  
 
            Dr. Liudahl also referred claimant to David A. Clough, M.D., 
 
            a hand specialist on May 26, 1989.
 
            
 
                 Dr. Clough believed claimant to have work-related 
 
            bilateral extensor myositis as of June 6, 1989 (ex. 26).
 
            
 
                 It should be noted that claimant was sent to physical 
 
            therapy for treatment of her upper extremity complaints.  
 
            During those visits the therapist noted tremors.  Claimant 
 
            stated that the tremors appeared about six weeks after she 
 
            went off work.  Claimant had experienced similar tremors in 
 
            the left arm in 1984 as a result of Bell's Palsy.  The 
 
            appearance of tremors has no significant impact upon this 
 
            case during this period as no doctor associated the onset of 
 
            the upper extremity pain to the tremors.  L.H. Herrera, 
 
            M.D., concluded that there may be no relation (ex. 36).  It 
 
            is noted that the tremors started some six weeks after the 
 
            onset of the upper extremity pain.  Furthermore, the upper 
 
            extremity complaints continued on after the tremors 
 
            disappeared.  It is found that the tremors are unrelated to 
 
            the injury at issue.
 
            
 
                 Continuing on with the medical history it is noted that 
 
            after several referrals to experts and physical therapy, 
 
            claimant continued to be treated by Dr. Liudahl, who as 
 
            before, stated that the injury was work related (exs. 30 & 
 
            33).
 
            
 
                 On October 24, 1989, Dr. Budensiek referred claimant to 
 
            Dr. Herrera.  On November 6, 1989, Dr. Herrera's impression 
 
            was tendinitis and postural tremors (exs. 35 & 36).  
 
            Admission notes indicate a work-related tendinitis and loss 
 
            of strength (exs. 37 & 39).
 
            
 
                 On April 4, 1990, Dr. Herrera, for the first time, 
 
            brought forth the possibility that the present tremor 
 
            symptomatology may not be work related (ex. 42).  He 
 
            speculated that the aching in her arms may be an attempt by 
 
            claimant to reduce her tremors, which in turn, causes a 
 
            constant strain (ex. 43).
 
            
 
                 A thorough review of the medical evidence offered which 
 
            documents treatment between March 9, 1989 and April 4, 1990, 
 
            reveals that the vast majority of treating doctors believed 
 
            the upper extremity complaints to be work related.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 It wasn't until April 4, 1990, that Dr. Herrera brought 
 
            forth an opinion that the upper extremity pain occurring in 
 
            April of 1990 may be caused by the idiopathic tremors.  Dr. 
 
            Herrera was not so bold as to state that the upper extremity 
 
            complaints, which began on March 9, 1989, were caused by 
 
            tremors.  Nor does the medical evidence support the 
 
            application of his opinion on causation in the retrospect.
 
            
 
                 Dr. Herrera's opinion is not rejected.  It is simply 
 
            evaluated according to the chronological sequence of events.  
 
            First, he casts doubt on the causal connection of claimant's 
 
            pain to the work injury as it existed on April 4, 1990.  
 
            Second, he makes clear the fact that the tremors are not 
 
            work related.  Finally, he makes no statement as to the 
 
            work-related or nonwork-related nature of claimant's 
 
            affliction prior to April 4, 1990.  The opinion of John 
 
            Kuhnlein, D.O., M.P.H., on causal connection is also not 
 
            relevant to this period as he evaluated claimant's condition 
 
            as it existed on October 18, 1990 (ex. 57, pages 34 & 35).  
 
            The same holds true for the doctors who examined claimant 
 
            subsequent to April 4, 1990.
 
            
 
                 Having considered all the evidence presented, it is 
 
            found that claimant's work for employer caused a repetitive 
 
            trauma injury on March 9, 1989.  It is found that claimant 
 
            sustained an injury to the right and left upper extremities 
 
            on March 9, 1989, which arose out of and in the course of 
 
            employment.
 
            
 
                 The next issue concerns the causal connection and 
 
            extent of permanent partial disability. 
 
            
 
                 Claimant asserts that she sustained permanent 
 
            disability as a result of the March 9, 1989, injury.  Pat 
 
            Luse, D.C., was hired by claimant's attorney for the purpose 
 
            of evaluating impairment and causal connection.  Dr. Luse 
 
            testified live at hearing and appeared very credible.  It is 
 
            noted that he has 300 hours of advanced training in rating 
 
            and evaluating impairment.  On the other hand, it appears 
 
            the Dr. Luse did not have a complete set of medical records 
 
            at his disposal when performing his one evaluation and this 
 
            detracts from the credibility of his opinions.  Dr. Luse 
 
            opined that claimant sustained 11 percent permanent partial 
 
            impairment to the body as a whole as a result of the 
 
            cumulative trauma injury incurred when working for employer 
 
            (ex. 52).
 
            
 
                 Defendants' employed Dr. Kuhnlein for the express 
 
            purpose of evaluating the causal connection and permanent 
 
            impairment.  He opined that claimant's complaints were not 
 
            related to work and instead were caused by an 
 
            undifferentiated connective tissue disease of unknown 
 
            etiology (ex. 57, p. 21).  Dr. Kuhnlein stated that by the 
 
            time he examined claimant on October 18, 1990, the work 
 
            performed for employer would no longer have been an 
 
            aggravation (ex. 57, p. 34).  He believed that overuse 
 
            should have resolved in 15 months and he was unsure of the 
 
            relationship of the tremors to the condition.  Dr. Kuhnlein 
 
            referred claimant to Nils Erikson, M.D., for a second 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            opinion.
 
            
 
                 On December 11, 1990, Dr. Erikson stated that claimant 
 
            has a 30 percent impairment due to pain that interferes with 
 
            the activity of daily living.  He also stated that patients 
 
            with chronic muscular pain of fibromyalgia commonly report 
 
            an increase of symptoms with repetitive activities (ex. 49).  
 
            This statement is interpreted as an opinion that repetitive 
 
            motion work similar to that performed by claimant at Aalfs 
 
            can cause an aggravation (exs. 49 & 57, p. 37).
 
            
 
                 Dr. Kuhnlein's opinion on causation is ***** given less 
 
            weight.  First, he has been practicing medicine since 1986, 
 
            while Dr. Luse has practiced some eleven years.
 
            
 
                 Second, he placed a significant amount of weight on the 
 
            antinuclear antibody study which was high enough to be out 
 
            of the ordinary (ex. 57, p. 18).  According to Dr. Luse, 
 
            this could be a false positive due to the taking of a wide 
 
            variety of medications.  Dr. Luse also stated that the test 
 
            is not conclusive for connective tissue disorder.  Even Dr. 
 
            Kuhnlein admitted that a "variety" of other tests are needed 
 
            to differentiate the disease.
 
            
 
                 Third, Dr. Kuhnlein placed significant weight upon the 
 
            fact that claimant's condition did not resolve after 15 
 
            months.  The fact that the pain did not resolve indicates 
 
            that the damage caused by the repetitive work may very well 
 
            be permanent.  The doctor's assumption that a repetitive 
 
            trauma injury will always completely resolve is rejected.  
 
            
 
                 Fourth, claimant has a history of tendinitis problems 
 
            in the past which at one point had forced a job change.  It 
 
            is logical to conclude that handling over 2800 zippers per 
 
            day may cause a repetitive trauma injury such as tendinitis.
 
            
 
                 Finally, Dr. Kuhnlein's opinion on aggravation of an 
 
            underlying connective tissue disease can be read to be in 
 
            conflict with the opinion of Dr. Erikson.  Dr. Kuhnlein 
 
            implied deferred to Dr. Erikson's expertise as a 
 
            rheumatologist (ex. 46).  
 
            
 
                 It is found that claimant sustained permanent partial 
 
            disability as a result of the March 9, 1989, injury as 
 
            evidenced by Dr. Luse's opinion and the persistent 
 
            complaints exhibited by claimant.
 
            
 
                 *****
 
            
 
                 Dr. Luse rated the impairment at 11 percent to the body 
 
            as a whole while Dr. Kuhnlein found no impairment related to 
 
            claimant's work injury.  Dr. Erikson rated the impairment at 
 
            30 percent, but made no causal connection and failed to 
 
            specify if the rating was to the body as a whole or the 
 
            upper extremities.  For those reasons, Dr. Erikson's rating 
 
            ***** [will be given less weight].
 
            
 
                 [Dr. Erickson based his rating of impairment on 
 
            claimant's pain.  Pain is not compensable unless it results 
 
            in disability.  Dr. Erickson spoke of pain that interfered 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            with claimant's daily living activities, as opposed to 
 
            claimant's work activities.  Since it appears part of Dr. 
 
            Erickson's rating is based on noncompensable factors, 
 
            greater weight will be given to the rating by Dr. Luse.  Dr. 
 
            Luse also had greater contact with claimant and was the 
 
            treating physician.]
 
            
 
                 *****
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period benefits.
 
            
 
                 Claimant's first full day of lost work due to the 
 
            injury was March 28, 1989. ***** [Dr. Herrera's opinion on 
 
            causation rendered on April 3, 1990, did not alter 
 
            claimant's status as medically unable to return to work.  
 
            However, a rating of permanent impairment carries with it a 
 
            finding that further significant medical improvement is not 
 
            anticipated.  Claimant received a rating of permanency on 
 
            April 1, 1991.  Under Iowa Code section 85.34(1), claimant's 
 
            healing period ended on April 1, 1991.]  Claimant has proven 
 
            entitlement to healing period benefits beginning March 28, 
 
            1989 through April 1, 1991.  *****
 
            
 
                 *****
 
            
 
                 The next issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.  *****
 
            
 
                 It is found that the treatment incurred with Vernon 
 
            Helt, M.D., claimant's family doctor, prior to April 4, 
 
            1990, was not authorized by employer and, as such, is not 
 
            compensable.  It is found that all other medical care 
 
            received for treatment of the upper extremity complaints 
 
            ***** was causally connected and is compensable.
 
            
 
                 *****
 
            
 
                 The next issue concerns entitlement to Iowa Code 
 
            section 85.39 benefits.
 
            
 
                 It is found the claimant has established liability and 
 
            that a rating obtained by employer was believed to be too 
 
            low (ex. 46).  Claimant is entitled to reimbursement for the 
 
            cost, including mileage, of Dr. Luse's March 25, 1991, 
 
            independent medical examination.
 
            
 
                 Claimant also offered a bill from Dr. Nils Erikson in 
 
            the amount of $306 (ex. 62).  The examinations conducted by 
 
            Dr. Erikson were the direct result of a referral made by 
 
            employer's examining physician, Dr. Kuhnlein.
 
            
 
                 The examination conducted by Dr. Kuhnlein is found to 
 
            be an Iowa Code section 85.39 examination requested by 
 
            employer and is compensable as such.  The referral to Dr. 
 
            Erikson is also part of employer's section 85.39 examination 
 
            and all such expenses are compensable including mileage and 
 
            follow-up testing.  All medical and mileage expenses 
 
            incurred with respect to the examinations by Dr. Kuhnlein 
 
            and Dr. Erikson are compensable pursuant to Iowa Code 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            section 85.39.
 
            
 
                                conclusions of law
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed July 1, 1991 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 9, 
 
            1989, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that she sustained a cumulative trauma injury to the right 
 
            and left upper extremities on March 9, 1989, arising out of 
 
            and in the course of employment with employer.
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 Iowa Code section 85.34(2)(s) states in part:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 *****
 
            
 
                 Claimant has established entitlement to healing period 
 
            benefits starting March 28, 1989, through April 1, 1991.  
 
            Causal connection has been established based upon the 
 
            opinions of the treating physicians who cared for claimant 
 
            during that specific period.
 
            
 
                 Claimant suffered a loss of use of both her arms and 
 
            thus is entitled to be compensated under Iowa Code 85.34(s).  
 
            The rating of impairment by Dr. Luse of 11 percent results 
 
            in compensation for 55 weeks.
 
            
 
                 *****
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            The employer, for all injuries compensable under chapter 85 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            or chapter 85A, shall furnish reasonable surgical, medical, 
 
            dental, osteopathic, chiropractic, podiatric, physical 
 
            rehabilitation, nursing, ambulance and hospital services and 
 
            supplies therefore, and shall allow reasonable necessary 
 
            transportation expenses incurred for such services.  The 
 
            employer has the right to choose the provider of care.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 If the employer denies the compensability of an injury 
 
            under the act, it cannot assert that the employee's medical 
 
            treatment was unauthorized.  Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78, 80 (review decision 1975).
 
            
 
                 Claimant has established entitlement to Iowa Code 
 
            section 85.27 benefits for ***** [all medical bills 
 
            submitted except those of Dr. Helt.]
 
            
 
                 *****
 
            
 
                 Iowa Code section 85.39 allows for independent medical 
 
            examinations at an employee's or employer's request.
 
            
 
                 Claimant has established entitlement to reimbursement 
 
            for the March 25, 1991, medical examination with Dr. Luse.  
 
            Travel expenses are also to be reimbursed.
 
            
 
                 Claimant has also proven that the examinations 
 
            conducted by Dr. Kuhnlein and Dr. Erikson are employer 
 
            requested independent examinations pursuant to Iowa Code 
 
            section 85.39.  Claimant is entitled to payment for the 
 
            examinations and reimbursement for the associated costs of 
 
            travel.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants are to pay claimant healing period 
 
            benefits at the rate of one hundred seventeen and 78/100 
 
            dollars ($117.78) per week for the period March 28, 1989 
 
            through April 1, 1991.
 
            
 
                 That defendants are to pay claimant fifty-five (55) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred seventeen and 78/100 dollars ($117.78) per 
 
            week commencing April 4, 1990.
 
            
 
                 That defendants are to pay claimant's Iowa Code section 
 
            85.27 and Iowa Code section 85.39 medical and travel 
 
            expenses as outlined in the opinion.
 
            
 
                 That defendants are to be given credit for benefits 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            previously paid.
 
            
 
                 That it is further ordered that all accrued benefits 
 
            are to be paid in a lump sum.
 
            
 
                 That it is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 That claimant and defendants shall share equally the 
 
            costs of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            
 
                 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 January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803; 2600; 1802
 
            Filed January 29, 1993
 
            Byron K. Orton
 
            MDM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GINGER SPIKE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 913731
 
            AALFS MANUFACTURING,          :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803, 2600
 
            Deputy's award of permanent partial disability increased on 
 
            appeal where evidence showed rating of 11 percent and 30 
 
            percent of upper extremities (deputy cited agency expertise 
 
            and awarded five percent).  There was no reason to reject 
 
            either of the two ratings of impairment in the record.
 
            
 
            1802
 
            Deputy's determination of end of healing period extended 
 
            where evidence showed claimant did not reach maximum healing 
 
            until later date, and where it appeared deputy based end of 
 
            healing period on date of issuance of one doctor's opinion 
 
            the condition was not causally connected to the injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GINGER SPIKE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  913731
 
            AALFS MANUFACTURING,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Ginger 
 
            Spike as a result of injuries to her right and left upper 
 
            extremities which occurred on March 9, 1989.  Defendants 
 
            denied compensability for the injury, but paid some weekly 
 
            benefits and medical expenses.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on June 19, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 57, claimant's exhibits 
 
            58 through 68 and testimony from claimant and Pat Luse, D.C.
 
            
 
                 Claimant's exhibit number 69 was accepted as an offer 
 
            of proof.  It was excluded due to claimant's failure to 
 
            timely serve the document pursuant to paragraph seven of the 
 
            hearing assignment order.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on March 9, 
 
            1989, arising out of and in the course of employment;
 
            
 
                 2.  The causal connection and extent of entitlement to 
 
            permanent partial disability benefits;
 
            
 
                 3.  The causal connection and extent of entitlement to 
 
            temporary total or healing period benefits;
 
            
 
                 4.  The commencement date for payment of permanent 
 
            partial disability;
 
            
 
                 5.  Claimant's entitlement to Iowa Code section 85.27 
 
            benefits and causal connection; and
 
            
 
                 6.  Claimant's entitlement to Iowa Code section 85.39 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Ginger Spike, started work for employer on 
 
            July 17, 1979.  Her position with employer is best described 
 
            as assembly line work in a clothing manufacturing company.  
 
            Claimant's duties in 1989 consisted of the assembly of 
 
            zippers to cloth by means of a sewing machine.  Claimant 
 
            would perform this task some 60 times every 10 minutes.  
 
            Simple mathematics indicates that claimant would assemble 
 
            2880 zippers in an 8-hour day.
 
            
 
                 It is found that claimant's work for employer required 
 
            the highly repetitive use of her upper extremities.
 
            
 
                 Claimant, in February 1989, began experiencing pain in 
 
            both upper extremities which she associated with her work 
 
            for employer.  Claimant alleged that on March 9, 1989, she 
 
            sustained a cumulative trauma injury to her upper 
 
            extremities.  She testified that in March her left wrist and 
 
            arm became very sore. She also had discomfort in her right 
 
            arm, but it wasn't as severe as the left.  Claimant 
 
            continued to work until March 27, 1989, when she was 
 
            restricted from work by Richard Budensiek, D.O.  The 
 
            diagnosis was extensor tendinitis (exhibit 9).  To date of 
 
            hearing, claimant has not returned to work.  She is 
 
            presently receiving social security disability due to 
 
            continued hand problems.
 
            
 
                 The first issue is whether claimant sustained an injury 
 
            which arose out of and in the course of employment on March 
 
            9, 1989.  Claimant has the burden of proof with respect to 
 
            this issue.
 
            
 
                 Claimant has clearly established that she was in the 
 
            course of employment at the time the alleged injury 
 
            occurred.  The more difficult issue is whether the hand 
 
            condition "arose out of" the employment.  In other words, is 
 
            the upper extremity symptomology caused by repetitive work 
 
            for the employer?
 
            
 
                 Claimant was examined and treated by an unusually large 
 
            number of doctors subsequent to her injury.  It is not 
 
            uncommon for such professionals to differ in their 
 
            diagnoses.  However, the doctors treated and examined 
 
            claimant during different periods of time.  Therefore, some 
 
            justification for the disparity may exist.
 
            
 
                 The analysis of whether claimant's upper extremity 
 
            injuries were caused by work for employer must focus on the 
 
            alleged injury date of March 9, 1989.
 
            
 
                 Richard Budensiek, D.O., generally opined that claimant 
 
            was suffering from work-related epicondylitis and tendinitis 
 
            in March, April and May of 1989.  Later in his treatment he 
 
            diagnosed reflex sympathetic dystrophy.  However, he backed 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            away from the latter diagnosis after a normal bone scan (ex. 
 
            22).  During the entire period Dr. Budensiek believed the 
 
            upper extremity complaints to be work related.  He referred 
 
            claimant to orthopedist Kevin Liudahl, M.D., on March 4, 
 
            1989 (ex. 18).  
 
            
 
                 Dr. Liudahl believed that claimant had tendinitis and 
 
            synovitis secondary to overuse, and continued to restrict 
 
            claimant from work (ex. 19).  Dr. Liudahl referred claimant 
 
            to B. Krysztofiak, M.D., for nerve conduction studies which 
 
            came back as normal.  The reason for admission was noted as 
 
            pain in both wrists due to work-related injury  (ex. 23).  
 
            Dr. Liudahl also referred claimant to David A. Clough, M.D., 
 
            a hand specialist on May 26, 1989.
 
            
 
                 Dr. Clough believed claimant to have work-related 
 
            bilateral extensor myositis as of June 6, 1989 (ex. 26).
 
            
 
                 It should be noted that claimant was sent to physical 
 
            therapy for treatment of her upper extremity complaints.  
 
            During those visits the therapist noted tremors.  Claimant 
 
            stated that the tremors appeared about six weeks after she 
 
            went off work.  Claimant had experienced similar tremors in 
 
            the left arm in 1984 as a result of Bell's Palsy.  The 
 
            appearance of tremors has no significant impact upon this 
 
            case during this period as no doctor associated the onset of 
 
            the upper extremity pain to the tremors.  L.H. Herrera, 
 
            M.D., concluded that there may be no relation (ex. 36).  It 
 
            is noted that the tremors started some six weeks after the 
 
            onset of the upper extremity pain.  Furthermore, the upper 
 
            extremity complaints continued on after the tremors 
 
            disappeared.  It is found that the tremors are unrelated to 
 
            the injury at issue.
 
            
 
                 Continuing on with the medical history it is noted that 
 
            after several referrals to experts and physical therapy, 
 
            claimant continued to be treated by Dr. Liudahl, who as 
 
            before, stated that the injury was work related (exs. 30 & 
 
            33).
 
            
 
                 On October 24, 1989, Dr. Budensiek referred claimant to 
 
            Dr. Herrera.  On November 6, 1989, Dr. Herrera's impression 
 
            was tendinitis and postural tremors (exs. 35 & 36).  
 
            Admission notes indicate a work-related tendinitis and loss 
 
            of strength (exs. 37 & 39).
 
            
 
                 On April 4, 1990, Dr. Herrera, for the first time, 
 
            brought forth the possibility that the present tremor 
 
            symptomology may not be work related (ex. 42).  He 
 
            speculated that the aching in her arms may be an attempt by 
 
            claimant to reduce her tremors, which in turn, causes a 
 
            constant strain (ex. 43).
 
            
 
                 A thorough review of the medical evidence offered which 
 
            documents treatment between March 9, 1989 and April 4, 1990, 
 
            reveals that the vast majority of treating doctors believed 
 
            the upper extremity complaints to be work related.
 
            
 
                 It wasn't until April 4, 1990, that Dr. Herrera brought 
 
            forth an opinion that the upper extremity pain occurring in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            April of 1990 may be caused by the idiopathic tremors.  Dr. 
 
            Herrera was not so bold as to state that the upper extremity 
 
            complaints, which began on March 9, 1989, were caused by 
 
            tremors.  Nor does the medical evidence support the 
 
            application of his opinion on causation in the retrospect.
 
            
 
                 Dr. Herrera's opinion is not rejected.  It is simply 
 
            evaluated according to the chronological sequence of events.  
 
            First, he casts doubt on the causal connection of claimant's 
 
            pain to the work injury as it existed on April 4, 1990.  
 
            Second, he makes clear the fact that the tremors are not 
 
            work related.  Finally, he makes no statement as to the 
 
            work-related or nonwork-related nature of claimant's 
 
            affliction prior to April 4, 1990.  The opinion of John 
 
            Kuhnlein, D.O., M.P.H., on causal connection is also not 
 
            relevant to this period as he evaluated claimant's condition 
 
            as it existed on October 18, 1990 (ex. 57, pages 34 & 35).  
 
            The same holds true for the doctors who examined claimant 
 
            subsequent to April 4, 1990.
 
            
 
                 Having considered all the evidence presented, it is 
 
            found that claimant's work for employer caused a repetitive 
 
            trauma injury on March 9, 1989.  It is found that claimant 
 
            sustained an injury to the right and left upper extremities 
 
            on March 9, 1989, which arose out of and in the course of 
 
            employment.
 
            
 
                 The next issue concerns the causal connection and 
 
            extent of permanent partial disability. 
 
            
 
                 Claimant asserts that she sustained permanent 
 
            disability as a result of the March 9, 1989, injury.  Pat 
 
            Luse, D.C., was hired by claimant's attorney for the purpose 
 
            of evaluating impairment and causal connection.  Dr. Luse 
 
            testified live at hearing and appeared very credible.  It is 
 
            noted that he has 300 hours of advanced training in rating 
 
            and evaluating impairment.  On the other hand, it appears 
 
            the Dr. Luse did not have a complete set of medical records 
 
            at his disposal when performing his one evaluation and this 
 
            detracts from the credibility of his opinions.  Dr. Luse 
 
            opined that claimant sustained 11 percent permanent partial 
 
            impairment to the body as a whole as a result of the 
 
            cumulative trauma injury incurred when working for employer 
 
            (ex. 52).
 
            
 
                 Defendants' employed Dr. Kuhnlein for the express 
 
            purpose of evaluating the causal connection and permanent 
 
            impairment.  He opined that claimant's complaints were not 
 
            related to work and instead were caused by an 
 
            undifferentiated connective tissue disease of unknown 
 
            etiology (ex. 57, p. 21).  Dr. Kuhnlein stated that by the 
 
            time he examined claimant on October 18, 1990, the work 
 
            performed for employer would no longer have been an 
 
            aggravation (ex. 57, p. 34).  He believed that overuse 
 
            should have resolved in 15 months and he was unsure of the 
 
            relationship of the tremors to the condition.  Dr. Kuhnlein 
 
            referred claimant to Nils Erikson, M.D., for a second 
 
            opinion.
 
            
 
                 On December 11, 1990, Dr. Erikson stated that claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            has a 30 percent impairment due to pain that interferes with 
 
            the activity of daily living.  He also stated that patients 
 
            with chronic muscular pain of fibromyalgia commonly report 
 
            an increase of symptoms with repetitive activities (ex. 49).  
 
            This statement is interpreted as an opinion that repetitive 
 
            motion work similar to that performed by claimant at Aalfs 
 
            can cause an aggravation (exs. 49 & 57, p. 37).
 
            
 
                 Dr. Kuhnlein's opinion on causation is rejected.  
 
            Several factors result in his opinion being given less 
 
            weight.  First, he has been practicing medicine since 1986, 
 
            while Dr. Luse has practiced some eleven years.
 
            
 
                 Second, he placed a significant amount of weight on the 
 
            antinuclear antibody study which was high enough to be out 
 
            of the ordinary (ex. 57, p. 18).  According to Dr. Luse, 
 
            this could be a false positive due to the taking of a wide 
 
            variety of medications.  Dr. Luse also stated that the test 
 
            is not conclusive for connective tissue disorder.  Even Dr. 
 
            Kuhnlein admitted that a "variety" of other tests are needed 
 
            to differentiate the disease.
 
            
 
                 Third, Dr. Kuhnlein placed significant weight upon the 
 
            fact that claimant's condition did not resolve after 15 
 
            months.  The fact that the pain did not resolve indicates 
 
            that the damage caused by the repetitive work may very well 
 
            be permanent.  The doctor's assumption that a repetitive 
 
            trauma injury will always completely resolve is rejected.  
 
            
 
                 Fourth, claimant has a history of tendinitis problems 
 
            in the past which at one point had forced a job change.  It 
 
            is logical to conclude that handling over 2800 zippers per 
 
            day may cause a repetitive trauma injury such as tendinitis.
 
            
 
                 Finally, Dr. Kuhnlein's opinion on aggravation of an 
 
            underlying connective tissue disease can be read to be in 
 
            conflict with the opinion of Dr. Erikson.  Dr. Kuhnlein 
 
            impliedly deferred to Dr. Erikson's expertise as a 
 
            rheumatologist (ex. 46).  
 
            
 
                 It is found that claimant sustained permanent partial 
 
            disability as a result of the March 9, 1989, injury as 
 
            evidence by Dr. Luse's opinion and the persistent complaints 
 
            exhibited by claimant.
 
            
 
                 The extent of claimant's impairment must be addressed.
 
            
 
                 Dr. Luse rated the impairment at 11 percent to the body 
 
            as a whole while Dr. Kuhnlein found no impairment related to 
 
            claimant's work injury.  Dr. Erikson rated the impairment at 
 
            30 percent, but made no causal connection and failed to 
 
            specify if the rating was to the body as a whole or the 
 
            upper extremities.  For those reasons, Dr. Erikson's rating 
 
            is rejected as speculative.
 
            
 
                 The remaining impairment ratings are viewed with some 
 
            skepticism as they were solicited by attorneys for the 
 
            benefit of litigation.
 
            
 
                 Upon considering all the evidence and applying agency 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            expertise, it is found that claimant sustained 5 percent 
 
            permanent partial disability to the body as a whole as a 
 
            result of the March 9, 1989, injury.  See Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice, section 13.4, 
 
            page 112.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            healing period benefits.
 
            
 
                 Claimant's first full day of lost work due to the 
 
            injury was March 28, 1989.  She was restricted from work due 
 
            to work-related tendinitis through April 3, 1990.  It is 
 
            found that on April 3, 1990, the healing period ended due to 
 
            Dr. Herrera's findings that claimant's pain may be caused by 
 
            the tremors.  It is found that the tremors were an 
 
            intervening nonwork-related factor that inhibited or slowed 
 
            claimant's recovery.  Claimant's testimony that her pain 
 
            lessened after the tremors disappeared lends credibility to 
 
            his finding.
 
            
 
                 Claimant has proven entitlement to healing period 
 
            benefits beginning March 28, 1989, through April 4, 1990.  
 
            To award further healing period benefits would be unduly 
 
            speculative due to the intervening idiopathic tremors.
 
            
 
                 Having found the healing period to end on April 3, 
 
            1990, it follows that the commencement date for payment of 
 
            permanent partial disability is April 4, 1990.
 
            
 
                 The next issue concerns claimant's entitlement to Iowa 
 
            Code section 85.27 benefits.  Claimant has established 
 
            employer's liability and is entitled to such benefits 
 
            beginning March 9, 1989 through April 3, 1990.  The causal 
 
            connection to a work injury has also been established 
 
            through April 3, 1990, based upon the various medical 
 
            reports and claimant's testimony.  The authorization defense 
 
            asserted by employer is accepted as employer was not denying 
 
            liability through April 3, 1990, as evidenced by the 
 
            admissions of paragraph four of the petition, the payment of 
 
            weekly benefits and the offer of medical care.
 
            
 
                 It is found that the treatment incurred with Vernon 
 
            Helt, M.D., claimant's family doctor, prior to April 4, 
 
            1990, was not authorized by employer and, as such, is not 
 
            compensable.  It is found that all other medical care 
 
            received for treatment of the upper extremity complaints 
 
            prior to April 4, 1990, was causally connected and is 
 
            compensable.
 
            
 
                 Beginning April 4, 1990, and continuing to the date of 
 
            the examination with Dr. Luse, March 25, 1991, it is found 
 
            that claimant has failed to establish the causal connection 
 
            of the medical expenses.  Dr. Herrera's opinion that the 
 
            upper extremity pain was caused by the nonwork-related 
 
            tremors places considerable doubt as to whether the 
 
            treatment was for the work-related tendinitis or pain caused 
 
            by the idiopathic tremors.
 
            
 
                 Claimant testified at hearing that the tremors ceased 
 
            about two months prior.  However, it wasn't until the March 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            25, 1991, examination with Dr. Luse that such was documented 
 
            by a medical professional.  The date of Dr. Luse's 
 
            examination is the only date that can be positively 
 
            identified as the end of the tremors.  It is found that 
 
            claimant is entitled to reimbursement for Iowa Code section 
 
            85.27 expenses incurred subsequent to March 25, 1991, to the 
 
            extent such was incurred for the treatment of bilateral 
 
            tendinitis.
 
            
 
                 The next issue concerns entitlement to Iowa Code 
 
            section 85.39 benefits.
 
            
 
                 It is found the claimant has established liability and 
 
            that a rating obtained by employer was believed to be too 
 
            low (ex. 46).  Claimant is entitled to reimbursement for the 
 
            cost, including mileage, of Dr. Luse's March 25, 1991, 
 
            independent medical examination.
 
            
 
                 Claimant also offered a bill from Dr. Nils Erikson in 
 
            the amount of $306 (ex. 62).  The examinations conducted by 
 
            Dr. Erikson were the direct result of a referral made by 
 
            employer's examining physician, Dr. Kuhnlein.
 
            
 
                 The examination conducted by Dr. Kuhnlein is found to 
 
            be an Iowa Code section 85.39 examination requested by 
 
            employer and is compensable as such.  The referral to Dr. 
 
            Erikson is also part of employer's section 85.39 examination 
 
            and all such expenses are compensable including mileage and 
 
            follow-up testing.  All medical and mileage expenses 
 
            incurred with respect to the examinations by Dr. Kuhnlein 
 
            and Dr. Erikson are compensable pursuant to Iowa Code 
 
            section 85.39.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 9, 
 
            1989, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that she sustained a cumulative trauma injury to the right 
 
            and left upper extremities on March 9, 1989, arising out of 
 
            and in the course of employment with employer.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 Iowa Code section 85.34(2)(s) states in part:
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                    The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Dr. Luse's opinion is accepted as correct with respect 
 
            to the causal connection of the injury to permanent 
 
            disability.
 
            
 
                 Upon considering all the evidence, it is found the this 
 
            case supports an award of 5 percent permanent partial 
 
            disability to the body as a whole which entitles the 
 
            claimant to recover 25 weeks of benefits under Iowa Code 
 
            section 85.34(2)(s).
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment; or (3) has achieved 
 
            maximum medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1984).
 
            
 
                 Claimant has established entitlement to healing period 
 
            benefits starting March 28, 1989, through April 3, 1990.  
 
            Causal connection has been established based upon the 
 
            opinions of the treating physicians who cared for claimant 
 
            during that specific period.
 
            
 
                 Compensation for permanent partial disability begins on 
 
            April 4, 1990.  Iowa Code section 85.34(2).
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                  "Claimant is not entitled to reimbursement for medical 
 
            bills unless he shows that he paid them from his own funds."  
 
            See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 
 
            (Iowa App. 1983).
 
            
 
                 If the employer denies the compensability of an injury 
 
            under the act, it cannot assert that the employee's medical 
 
            treatment was unauthorized.  Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78, 80 (review decision 1975).
 
            
 
                 Claimant has established entitlement to Iowa Code 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            section 85.27 benefits for the March 9, 1989, bilateral 
 
            tendinitis during the periods starting March 9, 1989 through 
 
            April 3, 1990, and March 25, 1991, to date of hearing.  
 
            Causal connection was established based upon the opinions of 
 
            the treating doctors during the first period and upon the 
 
            opinion of Dr. Luse during the second period.
 
            
 
                 Defendants' allegation of the authorization defense is 
 
            accepted during the periods that compensability was admitted 
 
            and weekly benefits were voluntarily being paid.  Claimant 
 
            is not entitled to reimbursement for medical costs incurred 
 
            with Dr. Helt.
 
            
 
                 Iowa Code section 85.39 allows for independent medical 
 
            examinations at an employee's or employer's request.
 
            
 
                 Claimant has established entitlement to reimbursement 
 
            for the March 25, 1991, medical examination with Dr. Luse.  
 
            Travel expenses are also to be reimbursed.
 
            
 
                 Claimant has also proven that the examinations 
 
            conducted by Dr. Kuhnlein and Dr. Erikson are employer 
 
            requested independent examinations pursuant to Iowa Code 
 
            section 85.39.  Claimant is entitled to payment for the 
 
            examinations and reimbursement for the associated costs of 
 
            travel.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant healing period benefits 
 
            at the rate of one hundred seventeen and 78/100 dollars 
 
            ($117.78) per week for the period March 28, 1989 through 
 
            April 3, 1990.
 
            
 
                 Defendants are to pay claimant twenty-five (25) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred seventeen and 78/100 dollars ($117.78) per week 
 
            commencing April 4, 1990.
 
            
 
                 Defendants are to pay claimant's Iowa Code section 
 
            85.27 and Iowa Code section 85.39 medical and travel 
 
            expenses as outlined in the opinion.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Smith
 
            Attorney at Law
 
            PO Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         GINGER SPIKE,                 :
 
                                       :
 
              Claimant,                :
 
                                       :      File No. 913731
 
         vs.                           :
 
                                       :         O R D E R
 
         AALFS MANUFACTURING,          :
 
                                       :          N U N C  
 
              Employer,                :
 
                                       :           P R O
 
         and                           :
 
                                       :          T U N C
 
         AETNA CASUALTY AND SURETY,    :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         The order contained in the appeal decision filed January 29, 1993 
 
         is hereby amended by striking the second fill paragraph and 
 
         substituting the following:
 
         That defendants are to pay unto claimant fifty-five (55) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         seventeen and 78/100 dollars ($117.78) per week commencing April 
 
         2, 1991.
 
         Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P O Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         P O Box 3086
 
         Sioux City, Iowa  51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed May 31, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RUSS SEVERSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 913829 & 787192
 
            DEPARTMENT OF PUBLIC DEFENSE, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            The only issue presented for resolution is the extent of 
 
            claimant's entitlement to permanent partial disability 
 
            benefits stipulated to be an industrial disability to the 
 
            body as a whole.
 
            Claimant, age 58, eleventh grade education, manual labor 
 
            work experience, restricted to light work due to knee 
 
            transplant surgery in June 1989, awarded 30 percent 
 
            industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            DONALD SCHAKEL,       
 
                        
 
                 Claimant,                   File No. 913932
 
                        
 
            vs.                                A P P E A L
 
                        
 
            CLOW VALVE CORPORATION,          D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 24, 1992 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, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 
            118 North Market St.
 
            Oskaloosa, Iowa 52577
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1; 5-1803
 
                                               Filed April 29, 1993
 
                                               BYRON K. ORTON
 
                      
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                          
 
            DONALD SCHAKEL,       
 
                        
 
                 Claimant,                   File No. 913932
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            CLOW VALVE CORPORATION,          D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
          
 
                    
 
            1803.1
 
            
 
            Claimant injured his back at work on October 31, 1988.  
 
            Surgery was performed on December 28, 1988, and claimant was 
 
            released for light duty.  Defendant employer accommodated 
 
            restrictions and he was given light work activity without 
 
            reduction in pay.  
 
            On March 11, 1992, claimant was hospitalized after he 
 
            related to his supervisor that his job was driving him nuts.  
 
            He was diagnosed with situational depression.  He contends 
 
            that this depression is a sequela of his original work 
 
            injury.  Claimant's contentions were not supported by the 
 
            greater weight of the medical evidence.
 
            
 
            
 
            5-1803
 
            Claimant awarded 25 percent industrial disability.  Claimant 
 
            had an increase in earnings subsequent to his injury and has 
 
            a job waiting for him after completion of a pain management 
 
            program.  Claimant is 31 years old with a ninth grade 
 
            education.  He is limited to light-medium work activity.  
 
            His restrictions preclude him from performing his past work 
 
            activity, but employer has accommodated his deficiencies and 
 
            kept him steadily employed.  Nevertheless, claimant's 
 
            earning capacity is diminished because of his impairment.  
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD SCHAKEL,               :
 
                                          :
 
                 Claimant,                :      File No. 913932
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            CLOW VALVE CORPORATION,       :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Donald 
 
            Schakel, claimant, against Clow Valve, self-insured 
 
            employer, defendant, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on October 31, 1988.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on September 
 
            14, 1992, in Ottumwa, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying was 
 
            Rhonda Schakel, claimant's wife.  The documentary evidence 
 
            identified in the record consists of joint exhibits 1, C-E, 
 
            G-O, 3, 4, and claimant's exhibit A.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            September 14, 1992, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant's emotional problem is a sequela 
 
            of his October 31, 1988, work injury;
 
            
 
                 2.  Whether claimant's injury is a cause of temporary 
 
            and permanent disability and, if so, the extent thereof; and
 
            
 
                 3.  Whether claimant is entitled to certain medical 
 
            benefits under Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on January 31, 1961, and quit school 
 
            in the tenth grade.  Claimant completed a 120-hour nurse's 
 
            aide course at Indian Hills College and is certified in that 
 
            capacity.  His relevant work experience was as a gas station 
 
            attendant, laborer and nurse's aide.  In February 1988, he 
 
            commenced working for employer as a general laborer.  His 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            original job was operating a muller which mixes sand for 
 
            molds and putting valve cores together.  The work required 
 
            lifting between 25 and 30 pounds, considerable shoveling, 
 
            twisting, and repetitive movements.  He was injured on 
 
            October 31, 1988, when a fire hydrant core he was assembling 
 
            slipped and he tried to catch it.  He incurred a back injury 
 
            and underwent decompression and fusion at L5-S1 in December 
 
            1989.  Claimant returned to work with employer and performed 
 
            various light jobs until March 11, 1992, when he was 
 
            hospitalized after threatening suicide.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was seen on November 1, 1988, by Terry L. 
 
            Wolfswinkel, D.C., for examination of low back pain.  
 
            Claimant was diagnosed with acute lumbar strain complicated 
 
            by a lumbar spondylolisthesis at L4-L5.  This was later 
 
            changed to acute posttraumatic lumbar facet syndrome.  
 
            Claimant received seven chiropractic adjustments but pain 
 
            persisted.  He was referred to Bradley Adams, D.O., for 
 
            further evaluation (exhibit C).
 
            
 
                 Dr. Adams saw claimant on November 15, 1988.  X-rays 
 
            revealed a limbus vertebra at the L4 level and a suggestion 
 
            of Grade I spondylolisthesis at the L5-S1 level.  A bone 
 
            scan was completed on November 17, 1988, and showed no 
 
            increase in activity or acute fractures involving the bony 
 
            spine (ex. D).
 
            
 
                 Claimant was referred by Paul Scott, M.D., to Jack W. 
 
            Brindley, M.D., for evaluation.  Dr. Brindley indicated that 
 
            he had seen claimant in the past due to significant symptoms 
 
            for spondylolisthesis.  He felt claimant needed to see a 
 
            back specialist and referred him to William Boulden, M.D. 
 
            (ex. G, p. 35).
 
            
 
                 Dr. Boulden saw claimant on November 17, 1988, and he 
 
            recommended an MRI evaluation.  The results revealed 
 
            degenerating disc at L3-L4 with a normal disc above the slip 
 
            at L5-S1.  It also showed spinal stenosis, foraminal type, 
 
            at L5-S1.  Dr. Boulden recommended surgical intervention 
 
            (ex. H, pp. 62-63).
 
            
 
                 On December 28, 1988, claimant underwent a 
 
            decompression laminectomy with transverse process facet 
 
            fusion at L5-S1 with fat pad graft (ex. H, p. 74).
 
            
 
                 On March 9, 1989, claimant was admitted to the mental 
 
            health institute in Independence, Iowa, for treatment of 
 
            marijuana abuse.  Claimant admitted he had been using drugs 
 
            since age 14 and his usage had increased during 
 
            convalescence from back surgery.  A mental status 
 
            examination revealed claimant to be alert, cooperative and 
 
            oriented.  He denied any significant depressive symptoms, 
 
            suicidal ideations or psychotic symptoms.  Claimant 
 
            participated in therapy sessions and admitted that his 
 
            motivation for treatment was to get his children back.  He 
 
            was discharged from the program on April 4, 1989 (ex. N).  
 
            
 
                 On April 27, 1989, claimant was seen by Dr. Boulden for 
 
            follow-up evaluation.  At this time, claimant complained 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            only of low back pain.  Dr. Boulden recommended a good work 
 
            conditioning program before releasing him to return to work.  
 
            X-rays taken by Dr. Boulden on May 25, 1989, showed no 
 
            evidence of any movement with flexion/extension views of the 
 
            L5 segment.  It was felt that he was getting a good solid 
 
            fusion and he was released for light duty entailing no 
 
            bending, twisting or lifting with the back and no prolonged 
 
            sitting.  By June 26, 1989, Dr. Boulden felt claimant was 
 
            ready for the final stages of work conditioning (ex. 8, pp. 
 
            55-58).
 
            
 
                 Claimant was referred to Thomas W. Bower, L.P.T., for a 
 
            physical therapy assessment on June 30, 1989.  Claimant 
 
            reported that he was having no pain difficulty and not 
 
            taking any pain medication.  Claimant appeared deconditioned 
 
            and a three-week work hardening program was recommended.  He 
 
            was re-evaluated on August 24, 1989, after participating in 
 
            Phase II of the work hardening program.  It was felt that he 
 
            could perform a light/medium category job without repetitive 
 
            bending, squatting or twisting with his back (ex. E, pp. 
 
            16-21).
 
            
 
                 On October 3, 1989, claimant presented to Dr. Brindley 
 
            with acute back pain for the past few days.  He then saw Dr. 
 
            Boulden on October 12, 1989, and x-rays were taken which 
 
            looked good.  He was advised to wear a TENS unit and 
 
            reminded not to bend or twist with his back.  Claimant's 
 
            pain reoccurred in December 1989 and Dr. Boulden ordered an 
 
            MRI examination.  This did not show any evidence of nerve 
 
            entrapment and the fusion masses appeared intact.  Motion on 
 
            flexion/extension views were not evident.  Dr. Boulden felt 
 
            that claimant's pain was an aggravation of the soft tissues 
 
            brought about by prolonged standing.  Nevertheless, because 
 
            of constant pain, Dr. Boulden put claimant on a work 
 
            conditioning program which was completed on March 5, 1990.  
 
            He was released back to work at this time with the same 
 
            restrictions as previously.  Dr. Boulden commented, "I do 
 
            not find anything that is specifically causing him need for 
 
            further surgery at this point and would not recommend 
 
            surgery at this point."  (ex. H, pp. 47-52).
 
            
 
                 Claimant sought a second opinion from Dr. James 
 
            Weinstein, reconstructive spinal surgeon, at the University 
 
            of Iowa Spine Diagnostic and Treatment Center.  He was 
 
            initially seen on February 15, 1990, and again on May 24, 
 
            1990.  X-rays were taken on both occasions.  They revealed 
 
            that the fusion between L5 and S1 was solid and the lumbar 
 
            spine above L5 negative.  Dr. Weinstein gave claimant a 
 
            permanent partial impairment rating of 10 percent of the 
 
            body as a whole (ex. I, pp. 96-102).
 
            
 
                 On September 16, 1990, claimant was involved in a moped 
 
            accident.  He was seen by Dr. Brindley on September 17, 
 
            1990, and was noted to have an effusion of the right knee.  
 
            On September 24, 1990, Dr. Brindley performed a partial 
 
            arthroscopic medial meniscectomy (ex. J, pp. 139-142).
 
            
 
                 On January 24, 1991, Dr. Boulden indicated that 
 
            claimant has a 12 percent permanent partial impairment 
 
            rating due to his back injury (ex. H, p. 45).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant then presented to the University of Iowa 
 
            Medical Center for a comprehensive functional capacity 
 
            evaluation.  At the time of this assessment, claimant was 
 
            working full time for employer repairing air tools.  He was 
 
            evaluated by a team of professionals including a clinical 
 
            psychologist, vocational rehabilitation consultant, 
 
            rehabilitation coordinator, physical therapist, and clinical 
 
            coordinator.  Claimant reported to Eugene F. Gauron, Ph.D., 
 
            clinical psychologist, that he was fully healed from his 
 
            injury and, although he experiences some pain, it does not 
 
            interfere with his daily activities.  He admitted that 
 
            occasionally, he complains of pain in order to get out of 
 
            doing things he does not want to do.  He indicated no major 
 
            stresses in his life or any areas requiring psychological 
 
            attention (ex. I, p. 89).
 
            
 
                 The spine team concluded that claimant could perform 
 
            sedentary-medium work activity with restrictions including 
 
            no lifting or prolonged standing, sitting or twisting and no 
 
            nonrepetitive lifting over 45 pounds, nor repetitive lifting 
 
            over 20 pounds.  An exercise and weight loss program was 
 
            recommended.  Claimant was given a 12 percent permanent 
 
            partial impairment rating to the body as a whole (ex. I, pp. 
 
            76-89).
 
            
 
                 On April 9, 1991, Dr. Brindley took claimant off work 
 
            due to a recurrence of back pain.  He was returned to work 
 
            on May 21, 1991, after seeing Dr. Boulden and being put on 
 
            some exercises (ex. G, pp. 30-32; 39).  
 
            
 
                 On September 11, 1991, claimant consulted with Marc E. 
 
            Hines, M.D., from Ottumwa Neurological and Psychiatric 
 
            Associates.  Claimant presented with complaints of numbness 
 
            and pain radiating down his legs and severe back pain.  A 
 
            neurological evaluation was essentially within normal limits 
 
            (ex. M, pp. 196-203).
 
            
 
                 Dr. Hines sent claimant for an MRI of the lumbosacral 
 
            spine which was performed on September 21, 1991.  The 
 
            examination revealed minimal evidence of bulging annulus at 
 
            L3-L4 and L5-S1 without evidence of herniation of nucleus 
 
            pulposus.  The L4-L5 disc was normal and no evidence of 
 
            nerve impingement was seen (ex. J, p. 138).  
 
            
 
                 Dr. Hines ordered EMG and nerve conduction studies 
 
            which were performed on September 30, 1991.  The results 
 
            showed some residual denervation (ex. M, p. 193). 
 
            
 
                 On October 30, 1991, claimant was involved in a motor 
 
            vehicle accident.  He was taken to the emergency room with 
 
            complaints of low back pain.  The next day, he was admitted 
 
            to the hospital as an inpatient.  An MRI scan of the 
 
            lumbosacral spine was taken on November 2, 1991, and was 
 
            unchanged since the examination of September 21, 1991.  He 
 
            was discharged on November 3, 1991, after conservative 
 
            treatment (ex. J, pp. 131-133).
 
            
 
                 Dr. Hines saw claimant on November 11, 1991.  He felt 
 
            that claimant's motor vehicle accident resulted in a lumbar 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            strain and exacerbated his prior condition.  He was returned 
 
            to work with a 30-pound lifting restriction (ex. M, p. 191).  
 
            On December 4, 1991, Dr. Hines rendered an impairment rating 
 
            finding claimant 100 percent disabled from his previous work 
 
            activity and from any type of competitive employment (ex. M, 
 
            pp. 186-188).  This rating was rendered despite the fact 
 
            that claimant was working full time with employer.
 
            
 
                 On February 19, 1992, claimant was seen by Douglas W. 
 
            Brenton, M.D., neurologist, for an independent medical 
 
            examination.  Claimant presented with complaints of pain in 
 
            the lower back with occasional radiation into the buttock 
 
            area.  After conducting a neurologic examination, Dr. 
 
            Brenton found no objective neurologic deficits.  He felt 
 
            that claimant could be employed in his current capacity 
 
            indefinitely (ex. K, pp. 160-164).
 
            
 
                 On March 11, 1992, claimant was admitted to Ottumwa 
 
            Regional Health Center with suicidal thoughts.  During 
 
            hospitalization, he underwent psychological evaluation by 
 
            Stephanie Harter, Ph.D., clinical psychologist.  Claimant 
 
            presented with complaints of depression for the past three 
 
            weeks.  He attributed his depression to financial and work 
 
            problems related to his injury.  He also reported problems 
 
            with anger control and conflict with his neighbors.  He was 
 
            administered the Wechsler Adult Intelligence Scale-Revised.  
 
            He obtained a full-scale IQ score of 82.  It was noted that 
 
            his attitude during testing may have lowered his test 
 
            performance.  Additional testing found him to have a 
 
            significant reading disability with skills approximately at 
 
            the fourth grade level (ex. M, pp. 174-179).
 
            
 
                 During the course of his hospitalization, claimant's 
 
            mental state was managed by Ronald R. Berges, D.O., 
 
            psychiatrist.  He felt claimant was able to be discharged on 
 
            March 23, 1992 (ex. J, pp. 120-130).
 
            
 
                 Dr. Hines referred claimant to Charles Denhart, M.D., 
 
            for a rehabilitation consultation.  Dr. Denhart saw claimant 
 
            on April 3, 1992.  On examination claimant demonstrated 
 
            pronounced pain behavior.  His gait was bilaterally antalgic 
 
            but he betrayed no motor weakness.  He was able to heel and 
 
            toe walk.  He had marked tenderness of the paraspinal 
 
            muscles in the very low back, but no sciatic notch 
 
            tenderness.  He reported minimal radiation of pain down the 
 
            lower extremities.  It was felt that he would benefit from a 
 
            pain treatment program (ex. L).
 
            
 
                 Claimant was seen alternately between Dr. Hines and Dr. 
 
            Berges.  He was referred by employer to Michael J. Taylor, 
 
            M.D., for a psychiatric evaluation on June 4, 1992.  Prior 
 
            to this evaluation, Dr. Taylor reviewed claimant's extensive 
 
            medical records.  He felt that claimant was severely 
 
            impaired by his major depressive disorder and he recommended 
 
            more aggressive treatment (ex. O).  Dr. Taylor rendered no 
 
            opinion as to the cause of claimant's depression.
 
            
 
                                CONCLUSION OF LAW
 
            
 
                 Claimant alleges disability due to a back impairment 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            and major depression.  Claimant contends that his depression 
 
            is a sequela of chronic pain derived from a work-related 
 
            back injury.  
 
            
 
                 Defendant admits that claimant sustained a back injury 
 
            on October 31, 1988, which arose out of and in the course of 
 
            employment with employer.  Defendant paid claimant healing 
 
            period benefits, temporary partial disability benefits and 
 
            75 weeks of permanent partial disability benefits.  
 
            Defendant specifically denies that claimant's depression is 
 
            a sequela of his back injury.
 
            
 
                 In 1936, the Iowa Supreme Court attempted to supply 
 
            some guidance for sorting through this type of case in 
 
            Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 
 
            480, 482 (Iowa 1936).
 
            
 
                 The question of whether the disability sustained 
 
                 by the employee shall be attributed to the first 
 
                 accident or to the later accidents depends on 
 
                 whether or not the disability sustained was caused 
 
                 by a change in the original condition, or by a 
 
                 recurrence of the original injury, or by an 
 
                 independent and subsequent cause.  If the employee 
 
                 suffers a compensable injury and thereafter 
 
                 suffers further disability which is the proximate 
 
                 result of the original injury, such further 
 
                 disability is compensable.  Where an employee 
 
                 suffers a compensable injury and thereafter 
 
                 returns to work and, as a result thereof, his 
 
                 first injury is aggravated and accelerated so that 
 
                 he is greater disabled than before, the entire 
 
                 disability may be compensated for.
 
            
 
                 More recently the court in DeShaw v. Energy 
 
            Manufacturing Co., 192 N.W.2d 777, 780 (Iowa 1971) 
 
            established this rule:
 
            
 
                 When a workman sustains an injury, later sustains 
 
                 another injury, and subsequently seeks to reopen 
 
                 an award predicted on the first injury, he must 
 
                 prove one or two things:  (a) that the disability 
 
                 for which he seeks additional compensation was 
 
                 proximately caused by the first injury, or (b) 
 
                 that the second injury (and ensuring disability) 
 
                 was proximately caused by the first injury.
 
            
 
                 The record in this case clearly indicates that claimant 
 
            sustained a back injury arising out of and in the course of 
 
            employment with employer on October 31, 1988.  He was 
 
            treated by Dr. Boulden.  Surgery was performed on December 
 
            28, 1988.  Claimant participated in a work conditioning 
 
            program and was released to light duty on May 25, 1989.  
 
            Claimant was off work and paid healing period benefits from 
 
            November 4, 1988 to May 25, 1989; October 2, 1989 to October 
 
            5, 1989; and December 6, 1989 to March 7, 1990.  Claimant 
 
            received temporary partial disability benefits from July 5, 
 
            1989 to November 12, 1989.  Claimant was also taken off work 
 
            due to back problems from May 13 to May 20, 1991.  Claimant 
 
            is entitled to receive healing period benefits for that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            period of time also. 
 
            
 
                 Claimant has no quarrel with defendant making 
 
            accommodations for his back problem and physical 
 
            restrictions.  Defendant employer placed claimant in jobs 
 
            that made allowance for his limited residual functional 
 
            capacity.  When claimant started employment at Clow, he 
 
            earned $5.47 per hour as a laborer.  In the most recent 
 
            light duty job held by claimant he earned $7.23 an hour.  
 
            Thus, claimant has not suffered a loss of earnings with 
 
            employer as a result of his work injury.
 
            
 
                 Claimant performed his assigned work duties without 
 
            incident.  On September 16, 1990, he injured his right knee 
 
            in a moped accident which was unrelated to work activity.  
 
            On January 5, 1991, he fell on ice and was off work for 
 
            about a week (ex. I, p. 94).  On February 11, 1991, claimant 
 
            related to Eugene Gauron, clinical psychologist at the 
 
            University of Iowa Medical Center, that, while he has some 
 
            pain, it does not interfere with what he wants to do.  Mr. 
 
            Gauron reported that, "He is of the opinion that he is fully 
 
            healed from his injury and that this is about as good as he 
 
            is going to get." (ex. I, p. 89).  However, claimant 
 
            exacerbated his back problems on October 30, 1990, when the 
 
            car he was riding in was rearended (ex. J, pp. 131-133).  
 
            According to Dr. Hines, claimant developed increased pain 
 
            after falling down steps in early January 1992.  Dr. Hines 
 
            reported on January 8, 1992, that, "...I would suspect that 
 
            his worsening is mainly from the wrenching of the back with 
 
            further lightening up of the pain." (ex. M, p. 195).  
 
            
 
                 It is apparent that claimant was doing well and able to 
 
            physically perform light duty work until he suffered nonwork 
 
            injuries which exacerbated his symptomatology.  Claimant's 
 
            increased pain syndrome and his dissatisfaction with the 
 
            locker room attendant job led to a depressed attitude which 
 
            culminated in a suicide threat on March 12, 1992, and 
 
            subsequent hospitalization.  Claimant has not worked since 
 
            that time.  He was taken off work by Dr. Hines and Dr. 
 
            Berges.  However, he is still considered an employee of Clow 
 
            and a job is waiting for him when he is released to return 
 
            to work after completion of a pain management program.  
 
            
 
                 The matter to be resolved is whether claimant's 
 
            emotional problems are related to his work injury on October 
 
            31, 1988.  There is evidence in the record indicating that 
 
            claimant has been a life-long marijuana abuser and 
 
            occasional cocaine user.  These problems resulted in a 
 
            disjointed family and claimant temporarily lost custody of 
 
            his four children.  He participated in a drug treatment 
 
            program from March 9 through April 4, 1989, and testified 
 
            that he has been clean since that time.  Claimant 
 
            subsequently regained the custody of his children.  
 
            
 
                 Claimant testified that in March 1992, he felt 
 
            depressed working alone in the locker room.  He encountered 
 
            no other workers during the day and was without human 
 
            contact and interaction.  He admitted in his deposition that 
 
            these circumstances were "driving me nuts."  (ex. 4, p. 50).  
 
            In addition, he was frustrated and upset by remarks made to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            him by the other men in the factory.  He was depressed 
 
            enough to think about committing suicide although he never 
 
            actualized the deed.  Dr. Hines stated emphatically that, "I 
 
            am able to substantiate very readily, that his depression is 
 
            secondary to his chronic back pain and the chronic pain 
 
            syndrome he has developed."  (ex. A, p. 1).  Dr. Berges 
 
            stated that, "It has been my professional [sic] opinion, to 
 
            a reasonable degree of medical certainty, that Don suffers 
 
            from major depression due to the fact that he does have 
 
            chronic pain syndrome."  (ex. A, p. 2).  Dr. Taylor agrees 
 
            that claimant suffers from major depression but he gave no 
 
            opinion as to causation (ex. O).  Dr. Boulden agrees that 
 
            claimant has psychiatric problems but feels that they 
 
            predate his workers compensation problem (ex. H, p. 43).  
 
            
 
                 Claimant's injury occurred on October 31, 1988.  His 
 
            treating surgeon stated on July 22, 1992, that the fusion is 
 
            stable and no further medical treatment is required.  He 
 
            further contends that claimant's symptoms are more 
 
            subjective than objective.  This opinion is corroborated by 
 
            the objective medical evidence.  All testing, including 
 
            x-rays, MRI examinations, a neurological evaluation, and EMG 
 
            and nerve conduction studies, reveal that claimant has no 
 
            surgically related disease (ex. J, p. 138).
 
            
 
                 Dr. Boulden released claimant to return to work on 
 
            March 5, 1990, after he completed a work hardening program.  
 
            In March 1992, claimant had an episode of situational 
 
            depression as a result of myriad circumstances and 
 
            intervening events.  While there is a remote possibility 
 
            that this claimant's suicide threat may be causally related 
 
            to his original injury in October 1988, it is also possible 
 
            that such threat was an attention-seeking mechanism designed 
 
            to get him out of doing a job he admitted he hated.  
 
            
 
                 Claimant worked without incident at other light duty 
 
            jobs with employer since March 7, 1990.  His pain was not 
 
            unbearable nor in any way interfered with his work 
 
            activities.  This changed, according to claimant, as the 
 
            result of at least three independent, nonwork related 
 
            incidents.  Claimant was injured in a moped accident, he 
 
            fell down steps and was involved in an automobile accident.  
 
            These incidences aggravated his work injury and apparently 
 
            he experienced an intensification and aggravation of back 
 
            pain.  According to claimant, this increased pain and 
 
            disability combined with a job he hated led him to think of 
 
            committing suicide.
 
            
 
                 The undersigned concludes that the greater weight of 
 
            the evidence does not support claimant's claim that his 
 
            injury produced his temporary bout of depression.  Claimant 
 
            did not appear depressed at the hearing.  He was able to 
 
            answer all questions in a logical and concise manner and 
 
            relate appropriately to the other participants.  Therefore, 
 
            even if claimant's episode of suicidal ideation is causally 
 
            connected to his work injury.  Such behavior was a 
 
            situational reaction to perceived unpleasant circumstances 
 
            without resulting in permanent psychiatric disability.
 
            
 
                 The next issue to be determined is the extent of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            claimant's disability.  Since claimant has an impairment to 
 
            the body as a whole, an industrial disability has been 
 
            sustained.  Industrial disability was defined in Diederich 
 
            v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 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 was born on January 31, 1961.  He was 27 years 
 
            old at the time of his injury and is now 31 years old.  
 
            Claimant is young enough to seek vocational rehabilitation 
 
            assistance and to be retrained for several occupations in 
 
            the general economy.  This factor mitigates his industrial 
 
            disability.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989).  
 
            
 
                 Claimant testified that he quit school in the tenth 
 
            grade.  However, he completed a nurse's aide training 
 
            program and is certified in that area.  Claimant has held a 
 
            variety of jobs.  At the present time, he is on medical 
 
            leave from Clow and has a job waiting for him when he 
 
            returns to work.  Claimant's back injury precludes him from 
 
            performing his prior work with employer.  However, claimant 
 
            earned $5.76 an hour when he started with employer as a 
 
            laborer in February 1988.  As a locker room attendant he 
 
            earned $7.93 an hour.  His source of income at the present 
 
            time is injured spouse ADC.  This benefit provides claimant 
 
            with subsistence for himself and his family as well as 
 
            medical benefits.  As an ADC recipient, claimant has to 
 
            exhaust all areas of possible income and he applied for 
 
            social security disability benefits.  However, at the 
 
            hearing, claimant emphatically stated that he is interested 
 
            in returning to gainful employment as soon as possible.  
 
            
 
                 While claimant has not suffered a loss of earnings as a 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            result of his injury, he has become less marketable in view 
 
            of his physical restrictions.  Although Dr. Boulden 
 
            indicated that claimant's complaints of pain are purely 
 
            subjective, he concurred with the restrictions imposed by 
 
            Mr. Bower in August 1989.  Dr. Boulden has not reneged on 
 
            those restrictions.  Claimant's work experience has been 
 
            primarily as a laborer.  Being restricted to light-medium 
 
            work affects his employability and earning capacity.  
 
            Claimant is entitled to industrial disability to compensate 
 
            for this loss.  
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability and employing agency 
 
            expertise, it is determined that claimant has sustained a 25 
 
            percent industrial disability.  He is entitled to 125 weeks 
 
            of permanent partial disability benefits at the rate of 
 
            $176.02 per week commencing March 7, 1990.  These benefits 
 
            are interrupted by healing period benefits from May 13 
 
            through May 20, 1991, and continue commencing May 21, 1991.
 
            
 
                 The final issue to be determined is claimant's 
 
            entitlement to medical benefits pursuant to Iowa Code 
 
            section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Defendant argues the medical charges which claimant has 
 
            submitted for some services are not causally related to his 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            October 31, 1988, work injury, were not authorized and where 
 
            not reasonable and necessary care.
 
            
 
                 Employer has excepted liability for claimant's back 
 
            injury.  Employer denies that claimant's emotional problems 
 
            are a sequela of his back injury.  The undersigned agrees 
 
            with defendant.  Therefore, claimant is not entitled to 
 
            reimbursement for medical charges pertinent to treatment for 
 
            his emotional problems.  Defendant is liable for payment of 
 
            all medical costs related to claimant's work injury.  
 
            Claimant has not presented a list of unpaid medical expenses 
 
            and testimony was not given on this claim.  Therefore, the 
 
            undersigned has no way of knowing which medical expenses are 
 
            unpaid.  Accordingly, a specific order cannot be rendered in 
 
            this regard.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE,  IT IS ORDERED:
 
            
 
                 That defendant pay to claimant healing period benefits 
 
            from May 13 through May 20, 1991, at the rate of one hundred 
 
            seventy-six and 02/100 dollars ($176.02) per week.
 
            
 
                 That defendant pay to claimant one hundred twenty-five 
 
            (125) weeks of permanent partial disability benefits at that 
 
            rate of one hundred seventy-six and 02/100 dollars ($176.02) 
 
            per week commencing March 8, 1990, but not including May 13 
 
            through May 20, 1991.
 
            
 
                 That defendant pay for all medical and mileage expenses 
 
            incurred for treatment of his work-related back injury.  
 
            
 
                 That defendant pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30, as amended.
 
            
 
                 That defendant pay claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Lance A. Grotewold
 
            Attorney at Law
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            118 North Market Street
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. E.J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                             1803.1 51803
 
                                             Filed September 24, 1992
 
                                             Jean M. Ingrassia
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DONALD SCHAKEL,     
 
                      
 
                 Claimant,                       File No. 913932
 
                      
 
            vs.       
 
                                             A R B I T R A T I O N
 
            CLOW VALVE CORPORATION,  
 
                                                 D E C I S I O N
 
                 Employer,      
 
                 Self-Insured,        
 
                 Defendant.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Claimant injured his back at work on October 31, 1988.  
 
            Surgery was performed on December 28, 1988, and claimant was 
 
            released for light duty.  Defendant employer accommodated 
 
            restrictions and he was given light work activity without 
 
            reduction in pay.  
 
            On March 11, 1992, claimant was hospitalized after he 
 
            related to his supervisor that his job was driving him nuts.  
 
            He was diagnosed with situational depression.  He contends 
 
            that this depression is a sequela of his original work 
 
            injury.  Claimant's contentions were not supported by the 
 
            greater weight of the medical evidence.
 
            
 
            51803
 
            Claimant awarded 25 percent industrial disability.  Claimant 
 
            had an increase in earnings subsequent to his injury and has 
 
            a job waiting for him after completion of a pain management 
 
            program.  Claimant is 31 years old with a ninth grade 
 
            education.  He is limited to light-medium work activity.  
 
            His restrictions preclude him from performing his past work 
 
            activity, but employer has accommodated his deficiencies and 
 
            kept him steadily employed.  Nevertheless, claimant's 
 
            earning capacity is diminished because of his impairment.  
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
BILLIE JACK JONES, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                  File No. 914002/1049034
 
ARMSTRONG TIRE & RUBBER CO., 
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
THE TRAVELERS INSURANCE CO., 
 
 & ALLIANZ INSURANCE     
 
 COMPANY  
 
          
 
and       
 
          
 
 SECOND INJURY FUND OF IOWA   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This case came on for hearing on November 10, 1994, at Des Moines, 
 
Iowa.  These are proceedings in arbitration wherein claimant seeks 
 
compensation for permanent partial disability benefits as a result of 
 
alleged injuries occurring on November 1, 1991 as to file number 
 
1049034 and March 16, 1989 as to file number 914002.  The record in the 
 
proceeding consists of the testimony of the claimant, Georgia Jones, 
 
claimant's wife, and Joyce Kain; and the claimant's exhibits 1 and 2; 
 
and defendant insurance companies exhibits AA, BB, and CC; and Second 
 
Injury Fund Exhibit A.
 
 
 
                               ISSUES
 
 
 
The issues for resolution are:
 
 
 
As to file number 914002 and the alleged March 16, 1989 injury:  
 
 
 
1.  The extent of claimant's disability and entitlement to              
 
disability benefits; 
 
 
 
2.  Whether claimant is entitled to Second Injury Fund benefits, the 
 
extent of those benefits and commencement date; 
 
 
 
3.  The rate at which any benefits would be paid.
 
 
 
As to file number 1049034, injury date of November 1, 1991:  
 
 
 
1.  The extent of claimant's permanent disability and entitlement to 
 
disability benefits.  
 
 
 
                     FINDINGS OF FACT
 
 
 
The undersigned deputy, having heard the testimony and considered all 
 
the evidence, finds that:
 
 
 
Claimant is a 53-year-old who completed only eight and one-half years 
 
of school.  Claimant quit at that time because of his father having a 
 
heart attack and he had to go to work to help support the family 
 
because of their poor financial situation. 
 
 
 
Claimant started to work for Smith Sheet Metal, running gutters, 
 
furnace ducts, etc.  He began working for the defendant employer in 
 
Mississippi, June 1, 1967 because of better benefits.  Claimant worked 
 

 
 
 
 
 
 
 
 
 
19 1/2 years at Armstrong in Mississippi and when the plant closed he 
 
filled out transfer applications on April 4, 1986 and began working at 
 
the Des Moines plant November 1, 1986.  He said his seniority at the 
 
Nachez, Mississippi plant came with him when he transferred to Des 
 
Moines, but his right for placement and bidding in a particular job did 
 
not follow him.  It appears his health and retirement benefits that he 
 
accumulated did follow him to Des Moines.
 
 
 
Claimant acknowledged that he had left knee surgery in 1981 because of 
 
a work injury to his left knee, due to problems he was having while 
 
working at the Mississippi plant.  There was no impairment to 
 
claimant's left knee as a result of this injury.  (Joint Exhibit 1, 
 
page 16)  Also while working at the Mississippi plant, he had problems 
 
with his right lower extremity resulting in surgery on July 14, 1985, 
 
in which the surgeon, David A. Ball, M.D., opined that claimant had a 
 
15 percent permanent impairment to his right lower extremity.  The 
 
surgery involved removal of the lateral meniscus.  (Jt. Ex. 1, p. 12)  
 
Claimant emphasized that he had no restrictions as a result of the 
 
above two surgeries and that he had a steady record with no 
 
restrictions and no trouble with his legs when he came to Des Moines
 
Claimant testified that on March 16, 1989, he was working on the VIM 
 
machine, loading carcasses, when he injured his left leg.  Page 134 of 
 
claimant's exhibit 1 is some detail as to the exact nature of how his 
 
injury occurred.  Page 28 of claimant's exhibit 1 reflects the 
 
September 15, 1989 medio menisectomy surgery.  
 
 
 
Claimant then had another surgery to his left knee on November 30, 
 
1990, by Kirk Green, D.O., and Sinesio Misol, M.D.  This gave claimant 
 
some relief.  He went through a various plan involving exercises.  He 
 
was assigned lighter duty as he returned to work and tried to get back 
 
to his original work.
 
 
 
In all the above surgery situations where there was healing period 
 
involved, that is not in dispute and the undersigned feels it is 
 
unnecessary to set out periods of time at which claimant was off work, 
 
but there was three healing periods from March 16, 1989 to May 6, 1991, 
 
all of which encomped a total of approximately 33 weeks.
 
Claimant testified that he had an injury to his right knee November 1, 
 
1991.  He indicated his left knee gave out and he fell to the floor, 
 
injuring his right knee.  He returned to work approximately three days 
 
after this November 1, 1991 injury.  Claimant testified that he had 
 
three surgeries to his right knee after said injury, one being March 
 
31, 1992.  (Cl. Ex. 1, p. 42)  In December of 1992 he had a staple 
 
removed.  On March 16, 1993 he had his right knee replaced and page 101 
 
of claimant's exhibit 1 reflects claimant's restrictions given as a 
 
result of the last surgery.  
 
 
 
The undersigned again is not going to set out the three healing periods 
 
that were involved in these right knee surgeries, as they are not in 
 
dispute and they have been paid.  They total approximately 30 weeks of 
 
healing period.  There is also approximately 27 1/2 weeks of temporary 
 
partial disability paid in reference to some of those surgeries.  
 
 
 
Claimant couldn't recall his hourly wage on the job he was doing as a 
 
small liner re-roller, working 40 hours a week, but indicated that as 
 
of July 15, 1994 when the strike began he had missed only one day of 
 
work since coming to Des Moines.  Claimant has not been called back to 
 
work.  Claimant said he has looked for work and tells potential 
 
employers of his restrictions.  He indicated he didn't think he could 
 
do anything.  He acknowledged he got unemployment for three months and 
 
told Job Service he was able to work.  At this time, claimant doesn't 
 
believe he can work, as his knee is wearing out and he falls down.  He 
 
said since his knee replacement in 1993 he has had a hard time climbing 
 
stairs.  He indicated that if he was called back he could not do the 
 
small liner re-roll work at the employer.  He related some of the 
 
impairments that the doctors gave him.  He said he has thought of 
 
applying for social security and that he wanted his knee to get better 
 
so he can go to work.  He hopes he is called back to work, but 
 
indicated they are taking some people out of seniority.  He stated that 
 
the holiday pay is part of his income.  
 
 
 
The cross-examiner asked a question as to certain doctor reports and 
 

 
 
 
 
 
 
 
 
 
dates of impairment in relation to the date of surgery, and it is 
 
obvious, after extensive cross-examination and the parties further 
 
analyzing the exhibits, that the June 17th letter of Dr. Ball (Cl. Ex. 
 
1, p. 20) is in error when it refers to the right lower extremity.  It 
 
is obvious it should say the left lower extremity.  
 
 
 
He contends he was making $100.00 less per week at the small liner 
 
re-roll job vs. his tire building job.  Claimant then was referred to 
 
Second Injury Funds, exhibit A, in which an answer to interrogatory 
 
indicated that when claimant returned to light duty work on May 18, 
 
1993, following a total right knee replacement, he was returned to 
 
regular work on September 15, 1993 to a negotiated job in fabric 
 
material, with permanent restrictions of no lifting over 40 pounds; 
 
avoid repetitive pushing, pulling, bending, climbing, kneeling, 
 
squatting, and lifting with the knees; and that his hourly wage was 
 
14.383 cents per hour.  The undersigned might note that later in the 
 
testimony of Joyce Kain, claimant's income before this light duty job 
 
was $15.18 an hour, which would mean a difference of 68.8 cents per 
 
hour, which on a 40 hour week would actually be $27.52 per week and not 
 
100.  Those restrictions referred to above were also referred to in Dr. 
 
Ball's May 17, 1993 report in claimant's exhibit 1, page 101.
 
 
 
On cross-examination by the Second Injury Fund, claimant acknowledged 
 
that after his 1985 surgery and after receiving treatment, he had no 
 
restrictions when he returned to work.  He also acknowledged that after 
 
his March 16, 1989 injury he returned to work with no restrictions.
 
Claimant further acknowledged that at of the time of his November 1, 
 
1991 injury, he was doing his regular job and that when he fell on said 
 
date, injuring his right knee, and after his knee replacement on April 
 
16, 1993, he returned to work at his negotiated job with his 
 
restrictions.  The medical reports indicated that claimant told Dr. 
 
Misol that he was able to do pretty much everything that was required 
 
of him in that job, working on the re-roll liner.  The doctor had been 
 
sent the on-site job analysis.  (Cl. Ex. 1, p. 107)
 
 
 
Claimant acknowledges that since July 1994 when the strike occurred, he 
 
has been on unemployment benefits and must acknowledge that he is ready 
 
and willing to work.  He then indicated that when he was transferred to 
 
Des Moines the retirement and vacation benefits followed him and that 
 
he could retire after 30 years or at age 55.  He indicated that he 
 
hoped to retire at 55 and he still owns his house in Mississippi.  He 
 
hasn't worked since the strike and indicates his knee is getting worse 
 
without working.
 
 
 
Georgia Jones, claimant's wife, testified that prior to March 16, 1989, 
 
claimant had no problems walking and could do the work around the home. 
 
 She indicates that now he can barely walk; can't fish or do repairs 
 
around the home; and it has changed his and her lifestyle.  He also has 
 
been taking medicine.
 
 
 
Joyce Kain is the current acting human resource person at Titan Tire 
 
Company, which company just recently (around July, 1994) purchased 
 
Armstrong-Pirelli Tire Company.  She began working for defendant 
 
employer in 1972 and is familiar with the wages, job placement, etc.  
 
She said claimant did not lose $100.00 per week when he changed from 
 
the VIM job to the small liner re-roll job, but in fact, the difference 
 
in pay is 68.8 cents less per hour than what he was making at the time 
 
of the strike ($14.49).  She acknowledged that claimant worked a 
 
negotiated job up to the strike.  She disagreed with the claimant and 
 
indicated that the sub pay is not considered income and therefore, 
 
should not be figured in on the rate.  She acknowledged that the 
 
company takes the required income taxes out of said sub pay payments, 
 
but does not pay nor withhold any social security from said amount.  
 
 
 
As to the wage and rate dispute, she indicated that they took out 8 
 
hours and 16 hours, which were holiday pay, on the weeks of January 1 
 
and January 8, 1989, thereby leaving each of those weeks included in 
 
the 13 weeks at 32 hours, rather than at 40 and 48 respectively.  
 
Claimant excluded those two weeks as being not normal weeks and added 
 
two 40 hour weeks dated March 5 and March 12, 1989.  Defendants also 
 
excluded sub hours for the weeks of March 5, 1989 and February 12, 
 
1989.  Ms. Kain contends that sub pay is not income.  This deputy 
 

 
 
 
 
 
 
 
 
 
indicated at the beginning of the hearing and also when the claimant 
 
was presenting his testimony that he has ruled on sub pay, as well as 
 
several other deputies in the agency, and said rulings have been 
 
consistent and have included sub pay as part of the income in figuring 
 
the rate.  The undersigned therefore indicated that, as far as he was 
 
concerned, there was no need to put any additional evidence or detail 
 
evidence on that issue because he would not rule differently than he 
 
has in the past.  Claimant indicated before resting his case that after 
 
the undersigned having said that, that he would not go into any detail 
 
concerning that.  The defendants' figures, therefore, have that sub pay 
 
amount, which is minimal in this case, also excluded from claimant's 
 
rate as far as what they are proposing.  
 
 
 
On cross-examination, Ms. Kain indicated that claimant's attendance 
 
record is very good and when asked whether one's seniority transferred 
 
from Mississippi, originally she couldn't recall and seemed to indicate 
 
they had been back and forth on that issue so she couldn't tell.  It 
 
appears that when claimant was able to come to Iowa under a transfer 
 
agreement, they had to take claimant here in Iowa if he desired to 
 
come.  She indicated  that if the restrictions are proper, that there 
 
would be approximately 50 percent of the jobs at the defendant employer 
 
that claimant could do within those restrictions; but there would be a 
 
significant number of jobs eliminated, as far as claimant is concerned, 
 
with his right lower extremity injury.  
 
 
 
Ms. Kain indicated that, as far as she knows, claimant will be 
 
recalled.  She indicated that the Titan Company is negotiating a 
 
contract and any plans.  If the claimant was working today he would be 
 
earning the same as he was at the time of the strike, namely 14.435 
 
cents per hour.  It would appear from her prior testimony though, that 
 
in fact, claimant was making 14.493 and she had indicated earlier it 
 
must be to cover the shift differential.  She didn't know if claimant 
 
was earning sub pay or not.  She indicated claimant was considered an 
 
employee of Titan and on the recall list of those who can be recalled.  
 
 
 
She emphasized the union and management are still negotiating for 
 
everyone.  It is amusing to the undersigned that this witness doesn't 
 
know more answers to some of the questions than she did, in light of 
 
the fact that she is, in this case, and this agency's experience has 
 
been, since the strike and Titan's takeover of defendant employer, the 
 
main witness in any testimony of this nature in cases before this 
 
agency on behalf of the defendant employer.  She says she knows of no 
 
medical restriction that would prevent claimant from being recalled.  
 
 
 
She claims said claimant is not considered on light duty, but on a 
 
negotiated job; but indicated claimant would not be entitled to a 
 
bonus.  Ms. Kain indicated that there is approximately two weeks left 
 
before the end of the latest agreement between Titan and the union as 
 
to a deadline for calling people back or at least, negotiating a new 
 
contract.  There is no dispute that claimant has not been recalled.  
 
 
 
Because of what the undersigned still felt was confusion in the record, 
 
or contradictions as far as claimant having a job, the undersigned 
 
asked her some questions.  Ms. Kain guaranteed that claimant would be 
 
working as a small liner re-roll in two weeks.  While the undersigned 
 
is reluctant to ask questions, it appeared that there was still an 
 
underlying question, and pursuant to additional questions and trying to 
 
determine how certain a guarantee is that claimant would be called back 
 
to work, Ms. Kain then ultimately indicated that she couldn't guarantee 
 
it and that union and management are still negotiating for everyone, 
 
and one can't guarantee anything for any employee, including the 
 
claimant.  She finally said she couldn't tell what will happen in two 
 
or three weeks.  She acknowledged that Titan is not paying attention to 
 
seniority and that there are workers in the reliner department, junior 
 
to claimant, that have been called back.  She further acknowledged that 
 
is unusual in a union contract situation, not to follow seniority.
 
Sinesio Misol, M.D., an othhopedic surgeon, testified on October 18, 
 
1994.  (Second Injury Fund's Ex. AA)  He said he last saw claimant 
 
October 3, 1994 and examined him both as to his right and left knees.  
 
He indicated he was familiar with the claimant's history, including his 
 
surgeries.  He was familiar with Dr. Green's permanency rating of 15 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
percent impairment to claimant's left lower extremity.  The doctor was 
 
unable to apportion any of that 15 percent between March 16, 1989 
 
injury and the 1981 injury.  He believed claimant's arthritis began 
 
with the 1981 injury and that in 80 percent or better of the patients 
 
that lose a cartilage through injury, surgery will develop arthritis 
 
regardless.  He, therefore, opined that if anything, any re-injury that 
 
took place aggravated the claimant's condition that was already 
 
present.  The doctor did say that a substantial portion of the 50 
 
percent is attributable to claimant's preexisting condition.  If that 
 
preexisting condition had existed it would likely have progressed to 
 
the point of needing surgery with or without further injury in 80 
 
percent of the cases and would have actually progressed to the point of 
 
requiring the tibial osteotomy.  (Def. Ex. AA, pp.7-8)
 
 
 
He was asked concerning Keith W. Riggins M.D.'s 46 percent impairment 
 
rating in claimant's left lower extremity and whether he would agree 
 
with that rating based on his examination.  The doctor indicated that 
 
based on his examination, it was his honest opinion that every examiner 
 
is going to have a different percent because - how can you be objective 
 
about something that cannot be measured, such as pain and endurance?  
 
 
 
He indicated that if you go by how the knee looks and how the knee 
 
moves (range of movement), he thinks the figure that Dr. Green, his 
 
partner, gave is fair.  But, he also indicated that if you take into 
 
consideration the possible future of claimant's knee and how his knee 
 
may be affecting claimant as a young individual, that it is supposed to 
 
be productive, then he understood Dr. Riggins' figure.  He was again 
 
asked the question and said he felt the 15 percent rating is correct; 
 
but, again indicated that this rating probably disregards pain; ability 
 
to walk so many blocks of distance; ability to put up with weather 
 
changes without discomfort; ability to go up and down the stairs at a 
 
certain speed; etc.  He said this cannot be measured.  He said if the 
 
examiner adds these items into the percent, then he seemed to indicate 
 
it would be a higher percent.
 
 
 
He said that the 15 percent rating is in accordance with the AMA Guides 
 
to Physical Impairment because the Guides don't say anything about 
 
these other situations or considerations that he has mentioned.
 
Dr. Misol then was asked concerning claimant's right lower extremity - 
 
right knee and his November 1, 1991 injury.  He says claimant did have 
 
problems with his knee before the 1991 incident.  The records indicated 
 
some arthritis present.  He also acknowledged that his orthopedic group 
 
performed their first surgery on claimant's right knee March 31, 1992, 
 
involving a coventry high osteotomy and the second surgery on March 16, 
 
1993, which was a total knee replacement.  The doctor opined in October 
 
of 1993 that claimant had a 30 percent impairment to his right lower 
 
extremity and indicated that this was "done pretty much by the book 
 
with disregard of emotional qualifications or."  (Def. Ins. Co. Ex. AA, 
 
p. 12)  It would appear to the undersigned that these additional 
 
qualifications were those that he set out when he opined the impairment 
 
to the left lower extremity and indicated that one could take into 
 
consideration other things that would have increased the impairment 
 
over and above what the Guides would otherwise say.  On 
 
cross-examination the doctor said he does not causally connect the 15 
 
percent impairment to claimant's left lower extremity in total to the 
 
March 16, 1989 injury, but does attribute a portion of the 15 percent 
 
to that injury.  He also indicated that as to the right lower extremity 
 
impairment of 30 percent, he attributes a portion of that to the 
 
November 1, 1991 injury but cannot apportion any percentages with 
 
respect to any preexisting condition or post surgical situation.  He 
 
again agreed that the Guides are only guides and that one examiner can 
 
opine a percentage different from the other and that it does not 
 
necessarily mean that one examiner is correct or incorrect.  The doctor 
 
said he hadn't read Dr. Riggins' report even though it appeared that he 
 
was sent a copy by the defendants' attorney.  The doctor then was asked 
 
to comment on that part of Dr. Riggins' report referring to the fact 
 
that claimant should be in a sedentary situation and also reference to 
 
what claimant's restrictions are in terms of physical exertion as to 
 
work he should do.  The doctor said he agreed with those two paragraphs 
 

 
 
 
 
 
 
 
 
 
and the limitations that claimant should be under, given his current 
 
physical condition with respect to both the right and left lower 
 
extremity.  (Def. Ex. AA, pp. 16-18)  The doctor then was asked whether 
 
he believes that both claimant's knees may improve.  The doctor said, 
 
"No" and also indicated that the right total knee is artificial and 
 
doesn't belong there; and its likely to wear off at the rate of one 
 
millimeter every five years or so; and that the plastic part is likely 
 
to get infected.  He didn't know the percentages but he said, "It is 
 
not a good knee to have."  (Def. Ex. AA, p. 22)  He also indicated 
 
claimant will probably need a replacement of the left knee, as he is 
 
still young, and it will probably end up becoming worse as the years go 
 
by.  The doctor indicated that claimant's November 1, 1991 incident 
 
sped up the degenerative process in claimant's right knee.
 
 
 
The medical records reflect that as to claimant's 1981 accident, in 
 
which he fell on his left knee, it is obvious from the record that 
 
claimant recovered from this left knee injury and the medio menisectomy 
 
surgery and that there was no permanent impairment assigned.  (Cl. Ex. 
 
1, pp. 15-16)  
 
 
 
In Dr. Misol's deposition (Cl. Ins. Co. Ex. AA) Dr. Misol was asked 
 
concerning impairment regarding claimant's left lower extremity and 
 
whether he could apportion the 15 percent impairment Dr. Green, his 
 
partner, made in June of 1992, regarding claimant's March 16, 1989 
 
injury and claimant's 1981 injury.  The undersigned is confused as to 
 
why a question wasn't asked concerning claimant's January 14, 1985 
 
injury, in which there was a 15 percent permanent impairment to 
 
claimant's left lower extremity, opined by Dr. Ball.  (Cl. Ex. 1, p. 
 
20)  Dr. Misol indicated that he couldn't apportion between the 1989 
 
injury of 15 percent impairment and the 1981, even though he indicated 
 
a substantial amount of that impairment would be attributed to 
 
claimant's preexisting condition which appeared to be referring to the 
 
1981 injury.  The undersigned finds that the greater weight of medical 
 
evidence shows that claimant had a 15 percent permanent impairment that 
 
existed for sure as to the 1985 injury that resulted in right knee 
 
surgery; and that the undersigned is assuming that the zero impairment 
 
opined by Dr. Ball (Cl. Ex. 1, p. 16) was, in fact, a correct 
 
impairment as to claimant's left knee and 1981 injury.  Dr. David A. 
 
Ball, M.D., was the treating doctor in both of those instances and 
 
periods of time.  There is no evidence or testimony from Dr. Green as 
 
to how he figured the 15 percent impairment to claimant's left lower 
 
extremity in 1992 and what would be preexisting.
 
 
 
The undersigned also finds that there was an error in reports 
 
concerning the 1985 injury in which there was reference to the left in 
 
Dr. Ball's records.  (Cl. Ex. 1, pp. 21-22)  It is obvious looking at 
 
the chronological sequence of things, that it could not have been the 
 
left.  That was an error and he obviously was referring to claimant's 
 
right lower extremity.  (Cl. Ex. 1, pp. 17-20)  Although there was 
 
considerable questioning in the record concerning this, it was obvious 
 
to the undersigned and statements of counsel that they realize that was 
 
an error after parties looked more closely at the records.  The 
 
undersigned is making this finding just in case there was any confusion 
 
still left in this area.
 
 
 
Claimant exhibit 1, p. 26, is the emergency record of Mercy Hospital, 
 
showing claimant's admission when he incurred his March 16, 1989 injury 
 
when his left lower leg got caught in the machine at work.  Pages 27 
 
and 28 reflect the September 1989 partial medio menisectomy to 
 
claimant's left lower extremity, with surgery performed by Dr. Kirk 
 
Green, D.O.
 
 
 
Page 29 of Claimant's Exhibit 1 is the November 30, 1990 record 
 
concerning claimant's proximal tibial valgus osteotomy to his left 
 
lower extremity performed by Dr. Green.  As reflected by page 30 of 
 
that exhibit this surgery was also referred to as a coventry osteotomy 
 
of the proximal tibia.
 
 
 
Pages 40-43 of said exhibit are the admission of claimant on March 31, 
 
1992, at Mercy Hospital for a coventry osteotomy of the right lower 
 
extremity performed by Drs. Green and Misol.
 
 
 
Pages 47-49 of said exhibit is the December 11, 1992 outpatient 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
surgery, removing the staple from claimant's right knee that had been 
 
troubling claimant with persistent pain and interfered with his ability 
 
to ambulate as well as rehabilitate his extremity.
 
 
 
Claimant exhibit 1, pages 51-52 reflect the March 16, 1993 right total 
 
knee replacement surgery performed by Dr. Misol, assisted by Dr. Green.
 
The undersigned is taking this opportunity to comment that these 
 
records are not chronological in many respects, as this last exhibit 
 
then is followed by 1989, 1990, 1991 and 1992 records and then back to 
 
1993 again.  This is not the only time in the record this happened.   
 
The medical could have been gleaned considerably more also. 
 
 
 
Claimant's exhibit 1, p. 104, is Dr. Misol's record on July 21, 1993, 
 
in which claimant was there on one of his visits following his total 
 
knee replacement in April, 1993.  At that time, claimant had 
 
restrictions.  Claimant was back at work with restrictions of lifting 
 
less than 40 pounds; limited use of the right leg; avoid pushing, 
 
pulling, climbing, kneeling, squatting, lifting and bending.  The 
 
doctor also said in his plan that claimant will never be released to 
 
full duties.  Page 108 that has been previously referred to is Dr. 
 
Misol's opinion that claimant had a 30 percent permanent partial 
 
physical impairment to his right lower extremity.  He also indicated 
 
that he felt the right total knee replacement was in satisfactory 
 
alignment with good fixation.  One might note that Dr. Misol referred 
 
to both April 16, 1993 and March 16, 1993 as the date of claimant's 
 
total knee replacement surgery.  (Cl. Ex. 1, pp. 101, 107, 109)  Page 
 
111 is apparently a part of a report concerning Dr. Patrick M. Sullivan 
 
and is dated November, 1992.  It doesn't make sense in the order of 
 
things and apparently, is part of a report.  There appears to have been 
 
more pages of this report but they are, at least, not in the record, or 
 
they could be disjointed, like some other records as far as sequence of 
 
time.  Page 112 is an undated report of Brent L. Dixon, D.O., 
 
concerning December 29, 1992 examination of claimant, in which he was 
 
requested by the defendant insurance company to do an evaluation of 
 
claimant's left lower extremity regarding his 1989 injury.  He opined 
 
claimant has a 5 percent permanent partial impairment to his left lower 
 
extremity, given the findings of a menisectomy, third edition.  The 
 
undersigned might add, he is not impressed at all with that evaluation, 
 
taking the considerable amount of medical testimony concerning the 
 
problem claimant was having with his left lower extremity.  It is also 
 
obvious he strictly used the Guides as a guide and zeroed in only on a 
 
minesectomy and did not take other things that should be taken into 
 
consideration to either supplement the Guides or supplement his 
 
evaluation.  This appears to be one example where the Guides, assuming 
 
they were used properly, are totally deficient of claimant's true 
 
impairment condition.  He is so way off from anyone else that this also 
 
alerts the undersigned as to its lack of impartiality.
 
 
 
Page 113 of claimant's exhibit 1 now jumps to May 3, 1994, report of 
 
Dr. Riggins', who evaluated claimant on May 3, 1994.  Page 6 of said 
 
report refers to the 1985 impairment and he opines a 7 percent 
 
impairment to claimant's right lower extremity due to a menisectomy as 
 
of the time of the completion of treatment from the 1985 injury.  The 
 
undersigned believes that claimant had a 15 percent impairment to his 
 
right lower extremity, as opined by Dr. Ball.  (Cl. Ex. 1, p. 20)  
 
There had been no prior impairment to claimant's right lower extremity 
 
from prior injuries.  Any additional impairment is a result of the 
 
November 1, 1991 injury. 
 
 
 
The doctor then goes on to indicate that claimant has a 68 percent 
 
impairment to his right lower extremity after subtracting the 7 percent 
 
due to the menisectomy of the 1985 injury.  Dr. Riggins, opined a 75 
 
percent permanent partial impairment to claimant's right lower 
 
extremity when the 7 percent is not deducted therefrom.  He also refers 
 
to this resulting from the December 5, 1991 injury but it is, in fact, 
 
November 1, 1991 when claimant was injured.  In that May 3, 1994 report 
 
the doctor was unable to opine an impairment to claimant's left lower 
 
extremity as he needed more information.  He further opined as to the 
 
right, that claimant should be limited to sedentary job assignments as 
 
a result of this injury to his right lower extremity.
 

 
 
 
 
 
 
 
 
 
On May 5, 1994, Dr. Riggins opined in a report, after having received 
 
the x-ray examinations he had been waiting for the day previously, and 
 
opined according to the AMA Guides, fourth edition, that claimant had 
 
46 percent permanent impairment to the left lower extremity.  He did a 
 
conversion which was improper under the law and the facts of this case 
 
as to a body as a whole.
 
 
 
An October 27, 1994 report of Dr. Riggins was done pursuant to 
 
claimant's attorney having sent him a copy of Dr. Misol's clinical 
 
notes of October 11, 1993 and Dr. Misol's deposition taken October 19, 
 
1994.  He was unable to determine how Dr. Misol determined the 
 
impairment rating as there was no specific references in Dr. Misol's 
 
clinical notes or deposition regarding the data and calculations which 
 
the Guides indicate should be utilized in rating such an impairment.  
 
The undersigned might note that he did not see any of the calculations 
 
of Dr. Misol either.  Dr. Riggins confirmed his prior impairment of 46 
 
percent to claimant's left lower extremity and indicated a 75 percent 
 
impairment to claimant's right lower extremity.  He then incorrectly 
 
said 7 percent of the impairment to the left lower extremity is 
 
considered due to the 1985 injury.  The 1985 injury was to claimant's 
 
right.  The doctor appears confused which may have resulted from Dr. 
 
Ball's earlier mistake confusing the right from the left.  Dr. Riggins 
 
opined 7 percent to claimant's right previously on the 1985 injury 
 
involving claimant's right lower extremity.
 
 
 
Page 124 is Robert F. Breedlove M.D.'s, July 21, 1994 letter, in which 
 
he was given a copy of Dr. Riggins' report of May of 1994 and felt that 
 
his figures were correct and that Dr. Riggins' 75 percent impairment to 
 
claimant's right lower extremity was a bit high.  It appears to the 
 
undersigned that Dr. Breedlove did not consider anything other than 
 
claimant's range of motion.
 
 
 
The medical records show that claimant has had extreme difficulties 
 
resulting from injuries to both his right and left lower extremities.  
 
As to claimant's left lower extremity, the undersigned finds that the 
 
greater weight of medical evidence shows that claimant has a 46 percent 
 
permanent impairment to his left lower extremity.  The undersigned 
 
believes that Dr. Riggins' impairment rating is most accurate and 
 
complete in detail.  In addition thereto, the undersigned finds that 
 
the Guides are only guides and that one must consider the loss of use 
 
and other factors, rather than just functional.  The undersigned 
 
believes that considering loss of use and functional impairment 
 
claimant does have a 46 percent impairment.  The undersigned is not 
 
sure as to whether Dr. Riggins considered any of those other items and 
 
it is immaterial whether he did, in light of the fact that the 
 
undersigned believes, taking everything into consideration, that 
 
claimant does have 46 percent impairment to his left lower extremity.
 
  
 
  The undersigned also finds that claimant had 15 percent impairment to 
 
his right lower extremity as a result of the 1985 and any prior 
 
surgeries and that even though claimant may have gone back to work and 
 
seemed to be able to do his job prior to May 16, 1989, the undersigned 
 
finds that there was an existing impairment and preexisting condition.  
 
 
 
Therefore, the undersigned finds that as a result of claimant's March 
 
16, 1989 left lower extremity injury claimant incurred a 46 percent 
 
permanent partial impairment.  The undersigned finds that Dr. Ball's 
 
impairment rating of 0 percent made on February 10, 1982 (Cl. Ex. 1, p. 
 
16) was the most accurate and he also was the treating doctor.  The 
 
undersigned also finds that Dr. Misol's 15 percent impairment of 
 
claimant's left lower extremity opined in his deposition (Def. Ex. AA, 
 
p. 14) does not consider all the factors as should be considered in 
 
determining impairment.  Dr. Misol himself indicates, when asked about 
 
higher impairments, that the 15 percent disregards probably pain, 
 
ability to walk so many blocks of distance, ability to put up with 
 
weather changes without discomfort, ability to go up and down the 
 
stairs at a certain speed, etc.  He indicated these cannot be measured, 
 
but that if you are an examiner that adds into the percent, and of 
 
course, it does increase it.  (Def. Ex. AA, p. 9)  The undersigned 
 
therefore, believes that Dr. Misol's impairment is low because it did 
 
not take into consideration those particular items which have to do 
 

 
 
 
 
 
 
 
 
 
with loss of use and claimant's inability to do certain activities and 
 
claimant's serious restrictions.
 
 
 
The claimant brought the Second Injury Fund in on file no. 914004 only, 
 
per an amendment filed December 23, 1993 and listed the date of the 
 
first loss as January 24, 1985.
 
 
 
The evidence is clear that after claimant's March 16, 1989 injury he 
 
was able to go back and was performing his work until his injury of 
 
November 1, 1991.
 
 
 
The undersigned therefore finds that as to the Second Injury Fund, the 
 
Second Injury Fund is not liable for any benefits payable to the 
 
claimant, because the undersigned finds that claimant's total 
 
disability from his first loss of January 24, 1985, 15 percent 
 
permanent impairment to his right lower extremity and claimant's 46 
 
percent permanent impairment to his left lower extremity, totalling 61 
 
percent permanent impairment to his left lower extremity now existing 
 
is the extent of claimant's permanent disability; and therefore, there 
 
would be nothing owed by the Second Injury Fund, as any credits for the 
 
two referred to injuries would leave nothing owed by the Second Injury 
 
Fund.
 
 
 
The defendant employer and Allianz Insurance Company owe the defendants 
 
101.2 weeks of permanent partial disability benefits (220 x 46 
 
percent).  As to the rate, the undersigned finds that the two weeks 
 
defendants desire to subtract from the 13 week prior to claimant's 
 
March 16, 1989 injury should be included at the 40 and 48 week 
 
respective figures regarding the January 8 and January 1, 1989 weeks.  
 
 
 
Defendants contend that the eight hour holiday pay for the week of 
 
January 8 and the 16 hours of holiday pay for the January 1, 1989 week 
 
should be excluded under the law, thereby, leaving claimant with 32 
 
weeks for each of those weeks; this would make the rate $344.98, which 
 
also excludes sub pay which will be addressed shortly hereafter.  If 
 
defendants are correct, then those two weeks would be excluded because 
 
they wouldn't be representative.  But the defendants are wrong as to 
 
the law.  The Iowa Workers' Compensation-Law and Practice, Second  
 
Edition, Lawyer and Higgs, section 12-4, indicate holiday pay is a 
 
regular payment as opposed to an irregular bonus, overtime or premium 
 
pay and there is cited therein as Stevens v. John Morrell & Co. I-1 
 
Iowa Indus. Comm'r. Dec. 236 (1984).  Claimant excluded those two 
 
dates, apparently going on the basis that holiday pay would be excluded 
 
and since those weeks are not representative, added two more weeks, 
 
which would actually be March 5 and March 12, 1989, which would be 14th 
 
and 15th week from the date of claimant's March 16, 1989 injury.  The 
 
undersigned finds, in light of what has been said above, that one would 
 
not go out 15 weeks, but would, in fact, include 48 hours for the 
 
January 1, 1989 week and 40 hours for the January 8, 1989 week, 
 
thereby, making the rate $369.57 a week based on a gross weekly income 
 
of $607.83 and including sub pay and claimant being married and 
 
therefore entitled to two exemptions.  There are no dependent children.
 
 
 
As to the sub pay issue, the undersigned has ruled on that previously, 
 
as well as other deputies within this agency, and their rulings have 
 
been including sub pay in the rate based mainly on the premise that it 
 
is pay subject to income tax even though the employer does not withhold 
 
social security taxes.  By not doing the latter is a benefit mainly to 
 
the employer, as the employer pays a greater share of any social 
 
security; it is actually a detriment to the claimant, in that it 
 
lessens his potential social security retirement.  The undersigned, as 
 
indicated earlier, stated his position on this since it was an issue 
 
and did not desire to hear again, the testimony in any detail as to sub 
 
pay.  In this particular case it means very little on the rate, anyway. 
 
 
 
 It is hard for the undersigned to believe that when someone receives 
 
payment (income) subject to withholding of federal and state taxes that 
 
that should be excluded from their pay.  Why is it called income, or 
 
why is it subject to income tax withholding if it is not income under 
 
the tax laws?  The undersigned therefore finds as to file no. 914002, 
 
claimant's March 16, 1989 injury, that claimant is owed 101.20 weeks at 
 
the rate of $369.57.  
 
 
 
As to the November 1, 1991 injury, file no. 1049034, it appears we have 
 

 
 
 
 
 
 
 
 
 
a contest of impairment ratings, which isn't unusual; but it further 
 
shows the different ways in which competent doctors can disagree, 
 
looking at a book and trying to determine the facts.  In reality, one 
 
would not think there should be that much variance, and yet, one only 
 
needs to listen and hear the various reports in this agency and various 
 
seminars to know that the Guides are subject to different 
 
interpretations by different doctors.  Their use is looked at 
 
differently among various specialist doctors and they admit that 
 
problems exist.  The mere fact that we have a Fourth Edition which, in 
 
fact, is the Fifth Edition, as there was a revised Third Edition, shows 
 
that not only is there ever changing understanding of the Guides, but 
 
there are disputes that arise among the doctors themselves.  The Guides 
 
themselves emphasize that they are only guides and are to be used only 
 
accordingly, and that they are not the last word, even though it seems, 
 
many people today use them as the last word.  It seems often to be the 
 
easy way out, as everyone can usually do math.  The doctor's biases, 
 
prejudices, and philosophies can also taint one's impairment 
 
determination.  I believe Dr. Misol, in his deposition, hit it on the 
 
nail when he indicated that how he used the Guides, which strictly were 
 
used by him, and it appears by those who had lower percentages as a 
 
functional rating, even though it also appears that Dr. Riggins used 
 
them, most likely, in that respect also and came with a substantially 
 
higher figure.  Dr. Misol, on page 9 of his deposition, had indicated 
 
when he was discussing claimant's left impairment, which discussion 
 
could also be applicable to the discussion of claimant's right lower 
 
extremity, that the percent that was being used probably disregarded 
 
pain, ability to walk so many blocks, ability to put up with weather 
 
changes without discomfort, ability to go up and down the stairs at 
 
certain speeds, etc.  Likewise, it appears, that they disregarded the 
 
activities that claimant cannot do, the effect on his daily and work 
 
activities he can't do.  The doctor with the lower impairment did not 
 
use the Fourth Edition, which now enables you to consider pain.  The 
 
Foreword of the Guide specifically indicates that permanent impairments 
 
are evaluated in terms of how they affect the patient's daily 
 
activities and that this Fourth Edition recognizes that one's 
 
occupation constitutes part of his or her daily activities.
 
 
 
Claimant has some severe restrictions and they are even more severe 
 
when it comes to a claimant who works for a tire builder.  Those 
 
restrictions are set out on claimant's exhibit 1, pages 101 and 104.  
 
Claimant is restricted from lifting more than 40 pounds; limited use of 
 
his right leg; to avoid pushing, pulling, climbing, kneeling, 
 
squatting, lifting and bending.  Dr. Misol, on page 104, indicates the 
 
claimant will never be released to full duties.  The undersigned 
 
believes that mainly refers to the work claimant was doing at the time 
 
of his injury, but doesn't necessarily mean, in the undersigned's 
 
opinion, that claimant couldn't find something to do with the defendant 
 
employer within his restrictions and therefore, do the full duties 
 
connected with that particular job that accommodates claimant.  There 
 
is no question in the undersigned mind that claimant could not go back 
 
to tire building, as such, for which he was originally hired and 
 
continued to initially do when he transferred to the Des Moines plant.  
 
 
 
We have right lower extremity impairments from 29 percent, 30 percent, 
 
up to 75 percent.  (Cl. Ex. 1, pp. 108, 117, 123-124).  The medical 
 
records indicate that claimant's leg gives out.  He has had a total 
 
knee replacement.  Claimant has not been called back to work.  The 
 
undersigned finds that taking all the medical evidence into 
 
consideration, the observance of the claimant, both as to his walking, 
 
his demeanor, forthrightness of his answers, his sincerity and the 
 
manner in which the doctors did their evaluations, the detail of the 
 
same, their understanding of the Guides, their confidence concerning 
 
the use of the Guides, the undersigned finds that claimant has a 65 
 
percent permanent partial impairment of his right lower extremity.  
 
 
 
After subtracting the 15 percent permanent impairment from claimant's 
 
1985 injury, claimant is entitled to 110 weeks of permanent partial 
 
disability benefits (50 times 220).  The parties agreed that any 
 
benefits concerning this particular injury would be at the rate of 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
$359.37.
 
 
 
As to the Second Injury Fund's liability, if any, there is no question 
 
the greater weight of medical evidence indicates that claimant is 
 
severely impaired.  The two files were consolidated.  Claimant has 
 
impairments of 15 percent from 1985 injury, 46 percent concerning his 
 
March 1989 injury and 50 percent net concerning his November 1, 1991 
 
injury (65 minus 15 equals 50 percent).  The claimant has met the three 
 
requirements in order for section 85.65 to come into action involving 
 
the Second Injury Fund liability.  Claimant is 53 years old and has 
 
only had eight and one-half years of education and has had only two 
 
jobs in his entire adult working life; in fact, claimant, from the 
 
evidence, appeared to have begun work earlier than most people do, in 
 
his early teens because of the financial condition of his family and 
 
his father's ill health requiring him to work.  Except for an 
 
interruption when the plant closed in Mississippi, claimant has worked 
 
for the defendant employer or successor for approximately 27 years, 
 
having begun June 1, 1967.  Claimant's work has basically been in the 
 
heavy duty category and has required his ability to stand, bend, squat, 
 
lift, twist and walk.  Although claimant indicated he could read and 
 
write, in observing claimant, particularly in reading certain exhibits, 
 
a person questions his ability to easily read.  
 
 
 
Claimant indicates he has looked for work but it doesn't seem that he 
 
has made a real concerted effort, and yet, its understandable, the way 
 
the claimant is being held hostage by the defendant corporation.  The 
 
union went out on strike in July of 1994 and even though Titan Tire 
 
Company has contended that claimant is still an employee, and that they 
 
have called people back, at the time of the hearing, there is only two 
 
weeks left on their underlying agreement which stayed the strike, to 
 
enable the company and union to try to negotiate a new contract.  The 
 
undersigned will not speculate.  The fact is claimant has not been 
 
called back, and with his condition, the likelihood, the undersigned 
 
believes, is nil.  Also, the defendants came into this court contending 
 
that he is guaranteed a job and is an employee.  By the time their key 
 
witness to this fact got done testifying, it is obvious that there is 
 
no guarantee for this claimant, and they are not following seniority in 
 
calling people back.  That people who were doing things claimant was 
 
doing have been called back and there is just two weeks left before the 
 
callback opportunity appears to be ending.  Claimant has a substantial 
 
loss of earning capacity.  With today's job opportunities for a person 
 
of claimant's age, the nature of his injury, his medical and work 
 
experience and history, his education, nature of injury, location of 
 
injury, severity of his injury, his impairment, his severe 
 
restrictions, and loss of income, the undersigned finds that claimant 
 
has an industrial disability of 65 percent.
 
 
 
Deducting from this industrial disability (65 x 500) of 325, weeks, the 
 
1985 permanent impairment of claimant's right upper extremity, 33 weeks 
 
and deducting 101.20 weeks as a result of claimant's 1989 injury and 
 
110 weeks as a result of claimant's 1991 injury, this leaves a net 
 
balance of 80.0 weeks that are owed by the Second Injury Fund at the 
 
rate of $359.37.
 
 
 
                     CONCLUSIONS OF LAW
 
 
 
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 the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability is 
 

 
 
 
 
 
 
 
 
 
proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability 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 then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  See 
 
Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck 
 
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner 
 
Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
Apportionment of disability between a preexisting condition and an 
 
injury is proper only when some ascertainable portion of the ultimate 
 
industrial disability existed independently before an 
 
employment-related aggravation of disability occurred.  Bearce v. FMC 
 
Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 
 
353 N.W.2d 407 (Iowa 1984).  Hence, where employment is maintained and 
 
earnings are not reduced on account of a preexisting condition, that 
 
condition may not have produced any apportionable loss of earning 
 
capacity.  Bearce, 465 N.W.2d at 531.  Likewise, to be apportionable, 
 
the preexisting disability must not be the result of another injury 
 
with the same employer for which compensation was not paid.  Tussing v. 
 
George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).
 
 
 
The burden of showing that disability is attributable to a preexisting 
 
condition is placed upon the defendant.  Where evidence to establish a 
 
proper apportionment is absent, the defendant is responsible for the 
 
entire disability that exists.  Bearce, 465 N.W.2d at 536-37; Sumner, 
 
353 N.W.2d at 410-11.
 
 
 
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 as to file no. 914002, that claimant incurred a 
 
permanent partial impairment of his left lower extremity on March 16, 
 
1989 of 46 percent.  The rate for any benefits are at the weekly rate 
 
of $369.57 and that sub pay is a part of claimant's pay and that 
 
holiday pay shall not be excluded in figuring the rate.  
 
As to file no. 1049034, claimant had a net of 50 percent permanent 
 
impairment of his right lower extremity (65% - 15%) as a result of his 
 
November 1, 1991 work injury and resulting surgeries connected 
 
therewith.
 
 
 
That the Second Injury Fund is liable for 80.8 weeks of permanent 
 
partial disability benefits as a result of claimant having 65 percent 
 
industrial disability as a result of his first and second injuries.  
 
After deducting the disability amounts for which the employer is 
 
responsible at the time of the second injury, the Second Injury Fund is 
 
liable for 80.8 weeks.
 
 
 
Claimant has severe restrictions.  Claimant is a credible witness.  
 
Claimant has a 15 percent permanent impairment to his right leg from 
 
January 1985 injury.  
 
 
 
                            ORDER
 
 
 
IT IS THEREFORE ORDERED: 
 
 
 
As to file no. 914002 defendants shall pay unto claimant one hundred 
 
one point two (101.20) weeks of permanent partial disability benefits 
 
at the rate of three hundred sixty-nine and 57/100 dollars ($369.57) 
 
beginning May 7, 1991.  
 
 
 
As to file no. 1049034, injury date of November 1, 1991, the defendants 
 
shall pay unto claimant one hundred ten (110) weeks of permanent 
 
partial disability benefits at the rate of three hundred fifty-nine and 
 
37/100 dollars ($359.37) beginning May 11, 1993.
 
 
 
As to the Second Injury Fund, they shall pay the defendants eighty 
 
point eight zero (80.80) weeks of permanent partial disability benefits 
 
at the rate of three hundred fifty-nine and 37/100 dollars ($359.37) 
 
beginning from the last payment made by the defendant in file no. 
 
1049034, which date would be approximately one hundred ten (110) weeks 
 
from May 11, 1993. 
 
 
 
 The defendants shall file a first report of injury immediately.  
 
As to all these cases, the defendants shall pay accrued weekly benefits 
 
a lump sum and shall receive credit against the award for weekly 
 
benefits previously paid.
 
  
 
  The defendant shall pay the interest on benefits awarded herein as 
 
set forth in Iowa Code section 85.30. 
 
As for Second Injury Fund, their interest runs from the date of this 
 
decision.  
 
 
 
The respective defendants shall pay the costs of these actions pursuant 
 
to rule 343 IAC 4.33. 
 
 
 
The defendants shall file an activity report upon payment of the award 
 
as required by this agency pursuant to the Division of Industrial 
 
Services rule IAC 343-3.1.  
 
 
 
Signed and filed this _____ day of December, 1994.          
 
 
 
                                ______________________________          
 
                                BERNARD J. O'MALLEY      
 
                                DEPUTY INDUSTRIAL COMMISSIONER 
 
 
 
Copies to:
 
 
 
Mr. Robert Pratt
 
Attorney at Law
 
6959 University Ave.
 
Des Moines, Iowa  50311-1540
 
 
 
Mr. Terry Monson
 
Attorney at Law
 
100 Court Ave Ste 600
 
Des Moines, Iowa  50309-2231
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Ms. Shirley Steffe
 
Assistant Attorney General
 
Department of Justice - Tort Claims
 
Hoover State Office Building
 
Des Moines, Iowa 50319
 
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 5-3000; 5-1803; 5-3200
 
                           Filed December 5, 1994
 
                           Bernard J. O'Malley
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
BILLIE JACK JONES, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                 File No. 914002/1049034
 
ARMSTRONG TIRE & RUBBER CO., 
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
THE TRAVELERS INSURANCE CO., 
 
 & ALLIANZ INSURANCE     
 
 COMPANY  
 
          
 
and       
 
          
 
 SECOND INJURY FUND OF IOWA   
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
AS TO FILE NO. 914002:
 
 
 
5-1803
 
Found claimant entitled to 101.20 weeks of permanent partial disability 
 
due to a work injury to his left lower extremity on March 16, 1981.   
 
Claimant incurred a 46 percent permanent impairment.
 
Second Injury Fund not liable to pay any benefits to claimant.
 
 
 
5-3000
 
Found sub pay and holiday pay is to be included in figuring the rate.
 
AS TO FILE NO. 1049034:
 
 
 
5-1803
 
Found claimant is entitled to 110 weeks of permanent partial disability 
 
due to a work injury to his right lower extremity on November 1, 1991.  
 
Claimant incurred a net of 50 percent impairment to this extremity.
 
 
 
5-3200
 
Found Second Injury Fund liable to pay claimant 80.8 weeks of permanent 
 
partial disability.