Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KAREN BOTTS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 914250
 
            IOWA LUTHERAN HOSPITAL,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU MUTUAL INSURANCE  :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Karen 
 
            Botts, claimant, against Iowa Lutheran Hospital, employer, 
 
            and Farm Bureau Mutual Insurance Company, insurance carrier.  
 
            Claimant files her petition based on a work related injury 
 
            which occurred on April 1, 1989.
 
            
 
                 A hearing was held on February 21, 1991 at Des Moines, 
 
            Iowa.  The record consists of testimony from the claimant 
 
            and Patricia McCollum, a vocational rehabilitation expert; 
 
            and, joint exhibits 1, 3-11, 13 and 14.
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, the sole issue to be determined is 
 
            the extent of claimant's industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence offered and received, and having presided at the 
 
            hearing, finds the following facts:
 
            
 
                 At the time of the hearing, claimant was 29 years old.  
 
            She is married, and has two (2) dependent children.  
 
            Claimant is 5 feet 8 inches in height, and weighs 272 
 
            pounds.  
 
            
 
                 Claimant graduated from East High School, Des Moines, 
 
            Iowa in 1980.  She worked at Lutheran Hospital on a 
 
            part-time basis during high school, and secured full-time 
 
            employment after graduation.  After several years, claimant 
 
            attended one year of technical school at the Iowa Lakes 
 
            Community College in Emmetsburg, Iowa.  She earned a diploma 
 
            as a licensed practical nurse (LPN).  In so doing, claimant 
 

 
            
 
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            took courses in English; math; growth, development and 
 
            speech; nursing care; and, pharmacology.  A clinical 
 
            component was also a requirement of the program. 
 
            
 
                 Claimant has also taken general studies at Des Moines 
 
            Area Community College as pre-requisites for an associate 
 
            degree in nursing program.
 
            
 
                 Claimant has a very stable work history.  As noted 
 
            above, she started working for Lutheran Hospital in Des 
 
            Moines, Iowa in 1979 on a part-time basis while she was 
 
            attending high school.  After graduation, claimant began to 
 
            work for the hospital on a full-time basis, and her duties 
 
            included food preparation; washing dishes; and, working on 
 
            the tray line to prepare patient meals.  She described the 
 
            position as requiring standing; bending; twisting; and, 
 
            lifting of between 10-75 pounds.
 
            
 
                 Upon completion of her LPN degree, claimant went to 
 
            work for the Childrens' Rehabilitation Center in Johnston, 
 
            Iowa.  This facility is a group home for severely disabled 
 
            and retarded individuals.  Claimant described different 
 
            levels of care provided at the center, including skilled 
 
            cared for the severely handicapped patients, and an 
 
            intermediate care component, which consisted of the higher 
 
            functioning group of individuals who could not live in a 
 
            home environment, but who did not need to be supervised on 
 
            24-hour a day basis.
 
            
 
                 Claimant worked in the skilled care area of the center.  
 
            Her duties included providing nursing services.  Claimant 
 
            did not incur any injuries while working in her position 
 
            with the center.
 
            
 
                 In April of 1986, claimant began to work for Luther 
 
            Park Health Center, a nursing home, located in Des Moines, 
 
            Iowa.  She worked as a charge nurse in both the intermediate 
 
            and skilled care areas.  As such, claimant supervised and 
 
            directed care given to the residents.  Claimant offered that 
 
            this position required the same amount of physical work as 
 
            her previous job, as she participated in actual management 
 
            of the patients.  Again, claimant sustained no injuries 
 
            while working for this employer.
 
            
 
                 In November of 1987, claimant returned to Lutheran 
 
            Hospital as a staff nurse.  She was responsible for 
 
            providing total care to between four to six patients.  Her 
 
            duties included bathing and feeding the patients; helping 
 
            the patients get into and out of bed; administering 
 
            medications; and, fulfilling other orders as directed in 
 
            order to care for the patients.
 
            
 
                 Claimant worked on the medical surgery neurology floor, 
 
            which houses mostly geriatric patients who require acute 
 
            care.  She described the work as requiring more "hands on 
 
            work", and she was required to lift heavy patients on a 
 
            regular basis.  The hospital employed nurse aides who were 
 
            assigned to the floor, and who were available for helping 
 
            the nurses when necessary.
 
            
 

 
            
 
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                 Claimant described her work as physically demanding.
 
            
 
                 On April 1, 1989, claimant and an orderly were helping 
 
            a patient back to bed.  The patient slipped, and claimant 
 
            had to lift the patient onto the bed.  She stated that she 
 
            felt as if everything in her low back "pulled."
 
            
 
                 Claimant continued working, and finished her shift.  
 
            She told both the orderly and the charge nurse on duty, Sue 
 
            Blife, that she had hurt her back while helping the patient 
 
            back into the bed.  Claimant stated that she felt some 
 
            discomfort, but did not seek any medical treatment.  
 
            Claimant returned to work the next day, and the following 
 
            day was unable to get out of bed.  She called her 
 
            supervisor, Connie Ziller, and was referred to the emergency 
 
            room at Lutheran Hospital.  Claimant received treatment from 
 
            Larry Baker, D.O.  His examination noted muscular and 
 
            ligamentus tenderness in the lumbar area of claimant's back, 
 
            bilaterally.  He prescribed physical therapy on a daily 
 
            basis, as well as Motrin and Tylenol 3.  Claimant was taken 
 
            off of work.  (Joint Exhibit 1, Page 75)
 
            
 
                 Claimant returned to Dr. Baker on April 10, 1989, and 
 
            was told to continue her physical therapy.  (Jt. Ex. 1, P. 
 
            76)  Although claimant was to return to work on April 10, 
 
            1989, the evidence suggests that claimant did not return to 
 
            work until May 2, 1989.  Claimant felt better after the 
 
            physical therapy, but her return to work made her condition 
 
            worse.  Subsequently, claimant began to receive medical 
 
            attention from Gerald Loos, M.D., who continued physical 
 
            therapy and took claimant off of work.  He also ordered a CT 
 
            scan of the lumbar spine, which showed minimal diffuse 
 
            bulging at the disc at L3-4, and a marked diffuse bulging of 
 
            the disc at L4-5.  He noted a moderate degree of central 
 
            canalicular spinal stenosis at the L4-5 level.  (Jt. Ex. 1, 
 
            P. 79)
 
            
 
                 Dr. Loos referred claimant to William Boulden, M.D.  
 
            Dr. Boulden prescribed physical therapy with Thomas 
 
            Wheatley, LPT, which consisted of a stabilization and 
 
            isometric program.  Next, claimant participated in a work 
 
            hardening program under the direction of Thomas Bower, LPT.  
 
            Both programs were instituted for physical conditioning in 
 
            an effort to raise claimant's functional capacity.  (Jt. Ex. 
 
            1, Pages 22-41)
 
            
 
                 Claimant defined the program as effective, as it 
 
            increased both her lifting and moving abilities.   In August 
 
            of 1989, claimant was returned to work by Dr. Boulden.  He 
 
            recommended that she not return to nursing, or at least a 
 
            nursing position which would require extensive lifting, such 
 
            as her position at Lutheran Hospital.  He also restricted 
 
            claimant's activities, and curtailed bending, twisting or 
 
            lifting activities.  (Jt. Ex. 1, P. 23; 29; 30).  On October 
 
            16, 1989, Dr. Boulden rendered the following opinion 
 
            regarding her permanent impairment:
 
            
 
                 At the present time, Karen has a 10% disability of 
 
                 her back.
 
            
 

 
            
 
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                 I feel that the amount of disability that is 
 
                 related to her work-related injury is 5.0% of the 
 
                 10%.  In other words, I feel that 5.0% is 
 
                 pre-existing, 5.0% was made more symptomatic 
 
                 because of the work-related injury.
 
            
 
            (Jt. Ex. 1, P. 22)
 
            
 
                 And, the following restrictions were recommended by Mr. 
 
            Bower and Dr. Boulden:
 
            
 
                 In our last functional that was performed August 
 
                 21, 1989, following completion of the work 
 
                 hardening program, Karen was lifting 55 pounds 
 
                 maximally from the floor to waist position.  Knee 
 
                 to chest was measured at 40 pounds and overhead 
 
                 lift was 43 pounds.  She was able to carry 52 
 
                 pounds, push 35 pounds and pull 68 pounds.
 
            
 
                 We felt this placed her in a medium work 
 
                 classification as defined as infrequently lifting 
 
                 50 pounds with infrequently defined as every two 
 
                 hours, and frequently lifting 25 pounds, with 
 
                 frequently being defined as every 5-20 minutes.  
 
                 Also frequent carrying of objects weighing 25 
 
                 pounds would be expected as well.
 
            
 
            (Jt. Ex. 1, P. 31)
 
            
 
                 Claimant did not return to work at Lutheran Hospital 
 
            after her release from Dr. Boulden, as the hospital had sent 
 
            her a letter in July of 1989 stating it could no longer hold 
 
            open her position because it was unclear as to when claimant 
 
            could return to work.  (Jt. Ex. 5, P. 150)
 
            
 
                 Claimant began her job search, and quickly found 
 
            employment with the Iowa Veterans Home in Marshalltown, 
 
            Iowa.  She worked in the skilled unit, and her duties 
 
            included passing out medications to patients, and, preparing 
 
            patients for bed, which included washing their faces, and 
 
            brushing their teeth.  These patients were ambulatory, and 
 
            claimant described the position as more supervisory than 
 
            laborer.  Claimant earned $10.06 per hour.
 
            
 
                 Claimant left the Iowa Veterans Home in October of 
 
            1989, after working for the facility for two months.  She 
 
            stated that she left because the position required a 50 mile 
 
            drive from Des Moines, and she was unhappy with the type of 
 
            work assignments she was given.
 
            
 
                 Claimant continued to look for suitable employment in 
 
            the nursing field, and between October of 1989 and December 
 
            of 1989, claimant sought help from the state vocational 
 
            rehabilitation center, and joined a job club which assisted 
 
            her in finding job opportunities to fit within her 
 
            disabilities.  Claimant contacted 48 employers during this 
 
            time period.  Additionally, she contacted Iowa Lutheran 
 
            Hospital once or twice a week for potential jobs within the 
 
            hospital.  She interviewed for two (2) positions: a 
 
            psychiatric technician, and an admitting clerk position.  
 

 
            
 
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            She did not receive either job, and it was claimant's 
 
            understanding that the hospital thought claimant might be 
 
            hurt if she had to restrain one of the patients in her 
 
            position as a psychiatric technician, and she did not have 
 
            the necessary skills to fulfill the admitting clerk duties.
 
            
 
                 Claimant's back condition and restrictions hindered her 
 
            success in securing employment.  She was turned down by the 
 
            following employers: Mercy Hospital, for a nursing position, 
 
            a day care position, and a pediatrics position; Polk City 
 
            Manor, for a nursing home position; and, Nurse Force, Inc., 
 
            for a position as a home care attendant.
 
            
 
                 Eventually, claimant secured employment at Dietz Clinic 
 
            in Des Moines, Iowa.  Dietz Clinic is a doctor's offices 
 
            associated with the University of Osteopathic Medicine, and 
 
            it is considered a family practice clinic.  Claimant began 
 
            to work for this employer on December 19, 1989.  Claimant is 
 
            responsible for taking patients to the examining rooms; 
 
            taking vitals; drawing blood and other laboratory 
 
            procedures; and, assisting the doctors with examinations.  
 
            Claimant indicated that she was not required to perform any 
 
            lifting in order to fulfill her job requirements.  In her 
 
            prior position with Iowa Lutheran Hospital, she was required 
 
            to lift approximately 85 percent of the time.
 
            
 
                 Claimant's physical condition began to deteriorate as 
 
            she was having increased pain in her back and right leg, and 
 
            difficulty in functioning at her job.  Claimant returned to 
 
            Dr. Boulden in December of 1990.  He encouraged claimant to 
 
            lose weight, but he was unable to provide any further 
 
            treatment.
 
            
 
                 Claimant sought treatment from her family physician, 
 
            David McInnes, M.D., who referred her to Douglas Koontz, 
 
            M.D., for a second opinion.  (Jt. Ex. 1, P. 45)
 
            
 
                 Claimant saw Dr. Koontz on February 21, 1990.  He 
 
            ordered x-rays; an MRI; performed a neurological 
 
            examination; and, ordered a epidural injection at Mercy 
 
            Hospital.  He also recommended surgery, and performed a 
 
            lumbar laminectomy at the L4-5 level on April 17, 1990.  
 
            (Jt. Ex. 1, PP. 6-8)
 
            
 
                 Dr. Koontz released claimant to return to work on July 
 
            9, 1990.  His final assessment is dated July 3, 1990:
 
            
 
                    I saw Ms. Botts back in the office today about 
 
                 2 1/2 months or so post-op from her L4/5 
 
                 decompressive laminectomy and microdisectomy.  She 
 
                 is doing much better and basically states she is 
 
                 getting along quite nicely.  She still has some 
 
                 stiffness in her lower back, primarily in the 
 
                 mornings, but this seems to resolve as she's been 
 
                 up and around.  Occasionally she gets muscle 
 
                 spasms in the back still.  She states that her 
 
                 legs feel good and she is up and around doing 
 
                 quite a bit around the house at this point.  She 
 
                 still takes the Naprosyn twice a day.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    At this point in time, I feel Ms. Botts can 
 
                 return to her job and she would like to do so as 
 
                 of 07-09-90. . . . I do feel she has a permanent 
 
                 partial impairment rating as a result of her back 
 
                 injury and surgery.  She had combination problem 
 
                 of lumbar stenosis as well as disc rupture and, 
 
                 based on the AMA guides, I feel her impairment 
 
                 rating is 16% to the whole person (this is based 
 
                 on a combined value of 9% due to stenosis and 8% 
 
                 due to disc rupture with removal).
 
            
 
            (Jt. Ex. 1, P. 3)
 
            
 
                 Claimant returned to her job with Dietz Clinic on July 
 
            9, 1990.
 
            
 
                 Claimant testified that she still requires occasional 
 
            medication and medical treatment for her low back presently.  
 
            In February of 1991, claimant underwent pinpoint steroid 
 
            injections on three (3) occasions.  (Jt. Ex. 1, P. 1)  
 
            Claimant also stated that she has restricted some of her 
 
            activities, and finds it difficult to put her shoes on; 
 
            sweeping and vacuuming; carry groceries; standing for long 
 
            periods of time; sitting for long periods of time; riding in 
 
            a car for trips requiring one (1) hour or more; and, 
 
            sleeping.
 
            
 
                 Claimant has expressed an interest in receiving an 
 
            associate degree in nursing from DMACC.  However, she has 
 
            been unable to complete these schooling due to financial 
 
            reasons, and she feels she can not complete clinical aspect 
 
            of the program.  Apparently the clinical component would 
 
            require claimant to perform duties similar to the one she 
 
            was performing at the time of her injuries in hospitals and 
 
            nursing homes.  Specifically, she would be required to 
 
            assist patients in the shower and bathtub, as well as help 
 
            people in and out of bed.  It was noted that claimant had 
 
            completed her application for the associate nursing program, 
 
            but had not enrolled in the program.  Claimant had not 
 
            finished the core classes necessary to enable her to enroll 
 
            in the associate nursing program, and had maintained a 2.077 
 
            grade point average. 
 
            
 
                          analysis and conclusion of law
 
            
 
                 The sole issue to be addressed in the case is the 
 
            extent of claimant's industrial disability.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
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            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Claimant's medical condition prior to the injury is 
 
            unremarkable.  She had never experienced any medical 
 
            problems with her back, although the evidence suggests that 
 
            she had a preexisting congenital back disease, spinal 
 
            stenosis.  
 
            
 
                 Immediately after the injury, claimant felt pain, 
 
            although she continued to work and finished her shift for 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the day.  Claimant worked the next day, but the following 
 
            day experienced pain that relegated her to unable to get out 
 
            of bed and unable to work.  She presented to the emergency 
 
            room at Lutheran Hospital, and was off work for 
 
            approximately three (3) weeks.  Attempts at conservative 
 
            treatment helped claimant only a temporary basis, and she 
 
            eventually underwent a lumbar laminectomy at the L4-5 level.
 
            
 
                 Presently, claimant still complains of periodic sharp 
 
            pains in her lower back, but is able to function well within 
 
            her medical restrictions.
 
            
 
                 As noted, claimant sustained a low back injury which 
 
            mandated surgical intervention.  She endured a healing 
 
            period of approximately nine (9) months.
 
            
 
                 Claimant's work history reveals that she has always 
 
            involved in the health care profession, and she has had the 
 
            opportunity to not only gain experience but also education 
 
            in her chosen field.  Claimant is a licensed practical 
 
            nurse, and, prior to the injury had aspirations to become a 
 
            registered nurse.  Claimant's prior work experience has been 
 
            concentrated in skilled and intermediate care facilities 
 
            which house both the severely retarded young adults, and 
 
            geriatrics.  This area of the health care profession 
 
            mandates heavy lifting, as well as bending, stooping and 
 
            twisting.
 
            
 
                 Presently, claimant is working in a doctor's office, 
 
            and although she does have some hands-on duties with 
 
            patients in the area of preparing for the examination, the 
 
            work is certainly lighter than that work which she had 
 
            performed prior to the injury.  By claimant's own admission, 
 
            she enjoys the work, but it was clear that she would like to 
 
            return to the types of positions she held prior to the 
 
            injury.  It is unfortunate that the defendant employer was 
 
            unable to find suitable employment to offer the claimant.
 
            
 
                 Claimant's potential for rehabilitation is good; she is 
 
            young and has many years left to be a part of the work 
 
            force.  Claimant is highly motivated as shown by the number 
 
            of employers she contacted when she was released to return 
 
            to work by Dr. Boulden.
 
            
 
                 Claimant has attended classes at Des Moines Area 
 
            Community College, and has sustained between a 2.0 and 2.5 
 
            grade point average.  Emotionally, claimant appeared to be 
 
            very stable, and the evidence shows she has a positive 
 
            attitude towards the rehabilitation process.
 
            
 
                 Her physical status has improved dramatically since the 
 
            operation, and has noted earlier she is able to function at 
 
            her job within her restrictions.  Claimant is overweight, 
 
            and has been suggested by all physicians that she lose 
 
            weight in order to further accommodate her physical status.
 
            
 
                 Claimant has received two (2) functional impairment 
 
            ratings as a result of the injury.  Dr. Boulden indicated 
 
            that she had a ten (10) percent disability of her back; he 
 
            assessed five (5) percent to a preexisting condition, and 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the remaining five (5) percent was due to the work-related 
 
            injury.  Additionally, he agreed with Tom Bowers assessment 
 
            that claimant was restricted to infrequently lifting 50 
 
            pounds and frequently lifting 25 pounds.  This placed her in 
 
            the medium work classification.
 
            
 
                 Dr. Koontz, the physician who performed the surgery, 
 
            assessed claimant's overall physical impairment at a 16 
 
            percent impairment to the body as a whole.  He assessed nine 
 
            (9) percent to the congenital stenosis, and a remaining 
 
            eight (8) percent due to the disc rupture and removal.
 
            
 
                 At the time of the hearing, claimant was earning $7.92 
 
            per hour in her present job at the Dietz Clinic.  At the 
 
            time of the injury, she was earning $7.50 per hour.
 
            
 
                 After consideration of all of the factors that 
 
            determine an industrial disability, it is found that 
 
            claimant has sustained a 35 percent loss of earning 
 
            capacity.  In so finding, it is noted that claimant is 
 
            absolutely precluded from pursuing work that she performed 
 
            prior to the injury.  She has a significant functional 
 
            impairment rating, and although a portion of each rating 
 
            given to her was assessed to a preexisting congenital 
 
            condition, there is no evidence that suggests she 
 
            encountered any problems with the preexisting condition.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability payments totaling one hundred seventy-five (175) 
 
            weeks at the stipulated rate of two hundred nineteen and 
 
            70/199 dollars ($219.70) beginning October 16, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall received credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
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            Page  11
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Channing L Dutton
 
            Attorney at Law
 
            West Towers Office 
 
            1200 35th St Ste 500
 
            West Des Moines Iowa 50265
 
            
 
            Mr Gale E Juhl
 
            Ms Angela Althoff Swanson
 
            Attorneys at Law
 
            5400 University Avenue
 
            West Des Moines Iowa 50265
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed May 15, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KAREN BOTTS,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 914250
 
            IOWA LUTHERAN HOSPITAL,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FARM BUREAU MUTUAL INSURANCE  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant is a 29-year-old woman, high school graduate, with 
 
            an LPN degree.  She worked as a staff nurse at Iowa Lutheran 
 
            and sustained an injury to her low back.  She underwent a 
 
            lumbar laminectomy, and received two impairment ratings: 10 
 
            percent and 16 percent.  Each rating addressed claimant's 
 
            preexisting congenital condition.
 
            Work restrictions included not more than 50-lb. lifting, and 
 
            limited bending, twisting and stooping.
 
            Claimant was highly motivated, and secured employment with a 
 
            doctor's clinic at an hourly wage higher than that which she 
 
            made at the time she was injured.  She is precluded from 
 
            returning to skilled nursing employment, and the employer 
 
            was unable to find suitable work for her.
 
            Claimant awarded 35 percent industrial disability.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DUAYNE F. HAESSLER,           :
 
                                       :        File No. 914265
 
              Claimant,                :
 
                                       :     A R B I T R A T I O N
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         ALUMINUM COMPANY OF AMERICA,  :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Duayne F. Haessler, against his self-insured employer, 
 
         Aluminum Company of America, defendant.  The case was heard on 
 
         February 20, 1992, at the Davenport Urban Center.  The record 
 
         consists of the testimony of claimant.  The record also consists 
 
         of the testimony of James Huffman, machinist; Fred Mussmann, unit 
 
         supervisor in the machine shop; Kevin O'Brien, senior personnel 
 
         administrator with labor and benefits; and Margaret Kundel, R.N., 
 
         plant nurse.  The record also consists of exhibits A-1 through 
 
         A-4, C-1 and C-2, as well as defendant's exhibits 1-7 (includes 
 
         pages 1-69).  It is also noted that many of the medical records 
 
         were difficult to follow, as the respective dates were often cut 
 
         from the photostatic copies.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether there is a 
 
         causal relationship between the injury and any permanent disabil
 
         ity; 2) whether claimant is entitled to healing period benefits; 
 
         3) whether defendant is entitled to a full credit for all sick 
 
         and accident benefits paid to claimant; and 4) whether claimant 
 
         is entitled to penalty benefits.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant commenced his employment with defendant on April 2, 
 
         1984.  He was hired as a machinist and his duties varied.  In 
 
         busy seasons, claimant worked in excess of 40 hours per week.  
 
         Claimant also engaged in construction and remodeling projects on 
 
         the side.  He testified he finished drywall and Sheetrock, he 
 
         filled the cracks and nail holes.  Additionally, he performed 
 
         many of the electrical duties.  Whenever claimant built a new 
 
         home he testified he completed 80 percent to 90 percent of the 
 
         project by himself.  Prior to January of 1989, claimant had com
 
         pleted construction on his sixth home.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              In September and October of 1988, claimant experienced some 
 
         problems with his back.  He sought treatment from his physician, 
 
         W. F. Ramsey, M.D., who, in turn, treated claimant conserva
 
         tively.  Dr. Ramsey diagnosed claimant as having "[b]ack [p]ain 
 
         with [r]adiculot [sic]."  Claimant was restricted from lifting 50 
 
         pounds.
 
         
 
              Claimant also sought osteopathic care during the same time 
 
         from Eugene J. Mehl, D.O.  Dr. Mehl diagnosed claimant for:
 
         
 
              At the time of my exam, I found tenderness and some 
 
              rigidity in L5-Sl left side with equivocal straight leg 
 
              sign.  Duayne was placed on Robaxin and Motrin and 
 
              asked to bring in previous XRay [sic] films.  At that 
 
              time, my diagnosis was acute lumbo sacral [sic] strain 
 
              and possible disc herniation L5-Sl or L4-5.  Duayne 
 
              returned 11-27-89 and stated that the pain was getting 
 
              worse over the last 10 days - pain in his lower back 
 
              and L leg.  He had equivocal straight leg left with no 
 
              back pain at this time.  He was told to return to Dr 
 
              [sic] Whitemore [sic] for a reassessment of his condi
 
              tion.  My diagnosis at that time was to consider rup
 
              tured disc and spondylosis of L5-Sl.  I feel that this 
 
              injury has been work related and a gradual onset.
 
         
 
              On February 19, 1989, claimant, with the assistance of James 
 
         Huffman, was trying to assemble shafts into certain wheels.  The 
 
         shafts were cumbersome, although their actual weight was unknown.  
 
         Claimant had no problems holding the shafts in place.  However, 
 
         after the shafts were positioned properly, claimant had diffi
 
         culty straightening up and he was having trouble walking.  
 
         Claimant testified he felt pain across his back at the belt line 
 
         and that the pain was unlike any pain he had experienced previ
 
         ously.
 
         
 
              On the following day, claimant reported the injury to his 
 
         then supervisor, Dave Mackin.  He, in turn, sent claimant to the 
 
         company medical department.  There he was placed on medical 
 
         restrictions.  Claimant was instructed not to lift more than 35 
 
         pounds and to refrain from lifting, twisting, turning, bending, 
 
         squatting, pushing and pulling per the instructions of S. Louis 
 
         Casta, M.D., plant physician.  Defendant, for purposes of work
 
         ers' compensation deemed the injury:  "cause and effect relation
 
         ship established.  "Aggravation" of underlying Back condition 
 
         meets OSHA recordability requirements."
 
         
 
              Claimant was off work and receiving workers' compensation 
 
         benefits for the period from February 24, 1989 through March 14, 
 
         1989.  Also during that time period, claimant was examined by 
 
         William R. Whitmore, M.D., an orthopedic specialist.  The ortho
 
         pedic specialist diagnosed claimant as having bilateral spondy
 
         lolysis at L5-Sl.  Dr. Whitmore prescribed bed rest, medication 
 
         and physical therapy.  On April 7, 1989, Dr. Whitmore discharged 
 
         claimant from care as claimant was generally doing well.  Records 
 
         for defendant on that date show that:  "Has been discharged from 
 
         Dr. care.  States he's been feeling fine and feels his back 
 
         restriction could be lifted to a heavy #."
 
         
 
              Dr. Casta limited claimant to lifting 25-30 pounds and from 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         engaging in pulling and pushing and from working in a stooped 
 
         position.  The plant physician also restricted claimant to lim
 
         ited stooping, bending and squatting or twisting.
 
         
 
              Claimant appeared capable of handling his duties so long as 
 
         he worked within his restrictions.  Then in August of 1989, 
 
         claimant sought treatment from personnel in the plant medical 
 
         department because of pain in the lower left back area.  The 
 
         nurse's notes for August 2, 1989 reveal:
 
         
 
              States it started last ___.  States has had back prob
 
              lems in past.  Does not recall any injury to it 
 
              "nothing unusual."  States pulled on a jig boom yester
 
              day but doesn't feel it caused it.  Also played tennis 
 
              ball c his kids last ___.  States may have ___ it them.  
 
              States it hurt about 1/2 hrs after playing c his kids.  
 
              States has been on Motrin & Robaxin before.  Dispensed 
 
              Motrin 400 mg Tab 12 Robaxin 750 mg Tabs 15 to take gid 
 
              as directed.  Rest. reviewed per Dr. Casta.
 
         
 
              Nurse's notes for October 24, 1989, states that:
 
         
 
              Back pain 7-10 days ago started up & persisted ___ - 
 
              not severe until this AM in bed.  Muscle spasms today & 
 
              pain c movement.  His [sic] been __ active home-working 
 
              c ___ walk.  Request ___ ___.  Will dispense Robaxin & 
 
              Motrin for today & he will see Whitmore.  May become 
 
              aggravation of preexisting condition & Alcoa injury.
 
         States feels he did not do any specific thing to injur 
 
         [sic] his back.  States has been hanging drywall @ 
 
         home.  Does not recall specific incident.  States back 
 
         has been bothering him 7-10 days.  States yesterday AM 
 
         - back had been worse.  Had sharp pain L lower side.
 
         
 
              Claimant continued to experience back pain.  He visited the 
 
         company medical department over the course of several months.
 
         
 
              On December 4, 1989, claimant was seen by Dr. Whitmore.  He 
 
         ordered an MRI.  The MRI revealed a large central disk herniation 
 
         at L4-5.
 
         
 
              Dr. Whitmore performed a lumbar laminectomy L4-5 left with 
 
         excision of large extruded fragment.  Claimant was released to 
 
         return to work as of March 19, 1990.  However, claimant was 
 
         restricted to working 40 hours per week and from lifting more 
 
         than 50 pounds.
 
         
 
              Claimant returned to work on March 27, 1990, where he was 
 
         assigned his former position at his same rate of pay.  Claimant's 
 
         restrictions were removed as of July 25, 1990.  Since that 
 
         period, claimant has been able to work in excess of 40 hours per 
 
         week when overtime is available.  Claimant has also been able to 
 
         perform all duties assigned to him.
 
         
 
                                conclusions of law
 
         
 
              The party who would suffer loss if an issue were not estab
 
         lished has the burden of proving that issue by a preponderance of 
 
         the evidence.  Iowa R. of App. P. 14(f).
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and circum
 
         stances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 
 
         (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 
 
         287 (Iowa 1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 
         (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opin47 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is mate
 
         rially aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961).
 
         
 
              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).
 
         
 
              The burden of showing that disability is attributable to a 
 
         preexisting condition is placed upon the defendant.  Where evi
 
         dence to establish a proper apportionment is absent, the defen
 
         dant is responsible for the entire disability that exists.  
 
         Bearce, 465 N.W.2d 531; Sumner, 353 N.W.2d 407.
 
         
 
              There is no question that claimant has sustained a 
 
         work-related injury on February 19, 1989.  The parties have 
 
         stipulated that the injury has occurred.  However, what is at 
 
         issue is whether the February 19, 1989 injury is causally 
 
         connected to claimant's alleged condition, or whether claimant's 
 
         condition is attributable to some other cause unrelated to 
 
         claimant's work.
 
         
 
              It is the opinion of Dr. Whitmore that claimant's condition 
 
         is related to his work injury of February 19, 1989.  In his 
 
         report of February 27, 1989, Dr. Whitmore writes:
 
         
 
              [T]he episode of 2-24-89 and the current surgery are 
 
              related.  In my opinion, they are related and a condi
 
              tion that he had then has simply gone on to a situation 
 
              that demands surgery at this time.
 
         
 
              The opinion of Dr. Whitmore is accorded great weight.  He is 
 
         a specialist in orthopedics, as well as the treating surgeon.  
 
         Dr. Whitmore has had ample opportunity to assess claimant's con
 
         dition.  He had seen claimant as early as February 24, 1989, just 
 
         five days after the work injury of February 19, 1989.  Dr. 
 
         Whitmore's opinion is corroborated by the opinion of Dr. Mehl.  
 
         No other physician has disputed the opinions regarding claimant's 
 
         back condition.  While it is true claimant had admitted that he 
 
         engaged in vigorous construction work outside of his employment, 
 
         there is no physician who has determined that claimant's condi
 
         tion is caused by anything other than the work injury on February 
 
         19, 1989.  Claimant has proven by a preponderance of the evidence 
 
         the requisite causal connection.
 
         
 
              The next issue to discuss is the issue of permanent partial 
 
         disability benefits.  Claimant alleges he has sustained an indus
 
         trial disability.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which he is fitted.  Olson, 255 
 
         Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
         Iowa 285, 110 N.W.2d 660 (1961).
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's qualifi
 
         cations intellectually, emotionally and physically; earnings 
 
         prior and subsequent to the injury; age; education; motivation; 
 
         functional impairment as a result of the injury; and inability 
 
         because of the injury to engage in employment for which the 
 
         employee is fitted.  Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in arriv
 
         ing at the determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, moti
 
         vation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985);  Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, l985).
 
         
 
              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.
 
         
 
              Dr. Whitmore has opined claimant has a functional impair
 
         ment.  In his April 9, 1990 office notes, Dr. Whitmore writes:
 
         
 
              I feel that he has a 10% permanent physical impairment 
 
              secondary to his intervertebral disc disease and in 
 
              conjunction with that, a Grade 1 spondylolysis.  I feel 
 
              his permanent physical impairment based on the lst 
 
              degree spondylolysis would be 4%.  Giving a total per
 
              manent impairment of 14%.
 
         
 
              Defendant has not demonstrated that apportionment is proper 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         in this case.
 
         
 
              Claimant is a young man who has worked steadily as a machin
 
         ist since 1975.  He has been employed by defendant for nearly 
 
         eight years.  Initially, when claimant returned to work on March 
 
         27, 1990, claimant was operating with restrictions, including no 
 
         work in excess of 40 hours per week.  Claimant vigorously lobbied 
 
         his treating physician to lift the restrictions as claimant was 
 
         most desirous of returning to overtime work.  With the exception 
 
         of the 50 pound weight restriction, the restrictions were ulti
 
         mately lifted on July 25, 1990.  Before that date claimant was 
 
         precluded from working overtime.  Claimant estimated he lost 
 
         $6,500.00 in lost overtime wages.  Whether the figure is accurate 
 
         is difficult for the undersigned to discern.  It is clear, how
 
         ever, that claimant did lose some overtime pay because of his 
 
         work injury.
 
         
 
              Currently, claimant's position is not in jeopardy because of 
 
         his low back condition.  His job is stable.  Claimant's one job 
 
         restriction is only moderate in nature.  Defendant is willing to 
 
         accommodate claimant.  At the time of the hearing, claimant tes
 
         tified he was working in his same job classification and that he 
 
         was able to perform his job duties.  Therefore, it is the deter
 
         mination of the undersigned that claimant is entitled to a 10 
 
         percent permanent partial disability commencing on March 26, 
 
         1990, at the stipulated rate of $442.40 per week.
 
         
 
              The next issue to address is the issue of healing period 
 
         benefits.
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical recov
 
         ery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
         interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              The evidence supports healing period benefits for the 
 
         following periods:  
 
         
 
                                       2-24-89
 
                                       through
 
                                       3-14-89
 
         and
 
                                       12-16-89
 
                                       through
 
                                       3-26-90
 
         
 
              The period is comprised of 17.143 weeks of healing period 
 
         benefits at the stipulated rate of $442.40 per week.  Defendant 
 
         has previously paid claimant 2.429 weeks of healing period bene
 
         fits at the stipulated rate.  Defendant is allowed a credit for 
 
         the amount paid.
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
              Defendant has also paid $4,025.97 in sick and accident dis
 
         ability benefits.  Defendant requests a credit pursuant to sec
 
         tion 85.38(2).  Defendant is allowed a credit for the net amount.  
 
         The amount of credit allowed to an employer for disability income 
 
         payments made under a group plan is the net amount which the 
 
         employee realizes after any income taxes attributable to the 
 
         group disability income payments are deducted from the total 
 
         amount of payments actually paid.  See Beller v. Iowa State 
 
         Penitentiary, File No. 799401 (Appeal Decision July 10, 1991).
 
         
 
              The final issue in this case is whether claimant is entitled 
 
         to penalty benefits pursuant to section 86.13(4).
 
         
 
              Section 86.13 permits an award of up to 50 percent of the 
 
         amount of benefits delayed or denied if a delay in commencement 
 
         or termination of benefits occurs without reasonable or probable 
 
         cause or excuse.  The standard for evaluating the reasonableness 
 
         of defendant's delay in commencement or termination is whether 
 
         the claim is fairly debatable.  Where a claim is shown to be 
 
         fairly debatable, defendants do not act unreasonably in denying 
 
         payment.  See Stanley v. Wilson Foods Corp., file number 753405 
 
         (Appeal Decision, August 23, 1990); Seydel v. Univ. of Iowa 
 
         Physical Plant, file number 818849 (Appeal Decision, November 1, 
 
         1989).
 
         
 
              With respect to the instant case, it was fairly debatable 
 
         for defendant to deny the claim from December 16, 1989 until 
 
         defendant received the report of Dr. Whitmore dated December 27, 
 
         1989.  At that point defendant had medical information supporting 
 
         a work-related injury or, in the least, an aggravation of a pre
 
         existing condition.  Defendant should have completed its investi
 
         gation by January 8, 1990 and commenced payment of weekly bene
 
         fits.  Fortunately for claimant he was at least paid his sick and 
 
         accident benefits in lieu of weekly benefits.  It is the determi
 
         nation of the undersigned that claimant is entitled to five weeks 
 
         of penalty benefits pursuant to section 85.38(4) at the rate of 
 
         $442.40.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant seventeen point 
 
         one-four-three (17.143) weeks of healing period benefits at the 
 
         stipulated rate of four hundred forty-two and 40/l00 dollars 
 
         ($442.40) per week.
 
         
 
              Defendant is to also pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         four hundred forty-two and 40/l00 dollars ($442.40) per week com
 
         mencing on March 26, 1990.
 
         
 
              Defendant is to also pay unto claimant five (5) weeks of 
 
         penalty benefits at the rate of four hundred forty-two and 40/l00 
 
         dollars ($442.40) per week.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended.
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
              Defendant shall receive credit as aforementioned for sick 
 
         and accident benefits paid to claimant pursuant to section 
 
         85.38(2) of the Iowa Code, as amended.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of March, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Building
 
         Davenport, Iowa  52801
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E 6th Street
 
         P O Box 339
 
         Davenport, Iowa  52805
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         1803; 5-4000
 
         Filed March 16, 1992
 
         MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DUAYNE F. HAESSLER,           :
 
                                       :        File No. 914265
 
              Claimant,                :
 
                                       :     A R B I T R A T I O N
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         ALUMINUM COMPANY OF AMERICA,  :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
         
 
         1803
 
         Claimant is awarded a 10 percent permanent partial disability for 
 
         a work-related back injury which he sustained on February 19, 
 
         1989.  Claimant is industrially disabled.
 
         
 
              Claimant is a young man who has worked steadily as a machin
 
         ist since 1975.  He has been employed by defendant for nearly 
 
         eight years.  Initially, when claimant returned to work on March 
 
         27, 1990, claimant was operating with restrictions, including no 
 
         work in excess of 40 hours per week.  Claimant vigorously lobbied 
 
         his treating physician to lift the restrictions as claimant was 
 
         most desirous of returning to overtime work.  With the exception 
 
         of the 50 pound weight restriction, the restrictions were ulti
 
         mately lifted on July 25, 1990.  Before that date claimant was 
 
         precluded from working overtime.  Claimant estimated he lost 
 
         $6,500.00 in lost overtime wages.  Whether the figure is accurate 
 
         is difficult for the undersigned to discern.  It is clear, how
 
         ever, that claimant did lose some overtime pay because of his 
 
         work injury.
 
         Currently, claimant's position is not in jeopardy because of his 
 
         low back condition.  His job is stable.  Claimant's one job 
 
         restriction is only moderate in nature.  Defendant is willing to 
 
         accommodate claimant.  At the time of the hearing, claimant tes
 
         tified he was working in his same job classification and that he 
 
         was able to perform his job duties.
 
         
 
         
 
         5-4000
 
         Claimant is awarded penalty benefits pursuant to section 86.13 in 
 
         the amount of five weeks.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            THOMAS D. BANNISTER,      :
 
                      		      :
 
                 Claimant,            :
 
		                      :
 
		            vs.       :
 
                		      :       File No. 914298
 
            EXECUTIVE CONCRETE        :
 
            CONSTRUCTION,  	      :
 
		                      :     A R B I T R A T I O N
 
                 Employer,	      :
 
		                      :        D E C I S I O N
 
		            and       :
 
                		      :
 
            INTEGRITY MUTUAL INSURANCE:
 
            CO.,     		      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                       		      :
 
            		    and       :
 
                      		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            statement of the case
 
            This case came on for hearing on September 6, 1991, in Mason 
 
            City, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury on August 1, 1989.  
 
            Defendant employer, Exectuive Concrete Construction, settled 
 
            and this case proceeded with the Second Injury Fund of Iowa 
 
            being the only defendant.  The record in the proceeding 
 
            consists of the testimony of claimant and Loren Aukes; joint 
 
            exhibits 1 through 14; and claimant's exhibits 16 and 17.  
 
            The exhibits 1 through 14 have been marked as claimant's 
 
            exhibits but, in fact, were agreed to be evidence as joint 
 
            exhibits.
 
            ISSUES
 
            The issues for resolution are:
 
            1.  Whether claimant's injury on August 1, 1989, arose out 
 
            of and in the course of his employment;
 
            2.  Whether there is causal connection as to claimant's 
 
            permanent disability; and
 
            3.  The nature and extent of claimant's permanent disability 
 
            and entitlement to disability benefits, and the commencement 
 
            date of any payments if there is an award.
 
            The defendants asserted the issue occupational disease, 
 
            chapter 85A.  The undersigned ruled at the beginning of the 
 
            hearing that since this was not set out as an issue on the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            prehearing report, it would not be an issue in this hearing.  
 
            Notwithstanding this, the undersigned does not adhere to the 
 
            theory that carpal tunnel injuries are an occupational 
 
            disease.  Also, costs are set out as an issue but claimant's 
 
            exhibit 15 was withdrawn which referred to any costs in 
 
            dispute.  Therefore, it would appear that costs are no 
 
            longer an issue.
 
            FINDINGS OF FACT
 
            The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            Claimant is a 37-year-old who dropped out of the eleventh 
 
            grade at mid-term, but he eventually received his GED in 
 
            1979.  Claimant related the various community colleges he 
 
            attended and the courses he took.  These courses involved 
 
            mechanics, automotive technology, etc.  Except for an army 
 
            mechanic diploma, claimant never finished these courses nor 
 
            did he receive a degree from any of the community colleges.  
 
            Claimant failed to complete the course requirements.
 
            Claimant described his work history which was interrupted by 
 
            four years in the U.S. Army.  This experience was in the 
 
            vehicle mechanical area involving light to heavy work.
 
            Claimant described his 1979 motorcycle accident in which he 
 
            injured his left arm and wrist.  This led to a permanent 
 
            impairment.
 
            Claimant described his work history and nature of his work 
 
            after his 1979 motorcycle injury.  He said his work involved 
 
            light to medium weight work.  His wages were $4 to $10 per 
 
            hour.  Some of these jobs involved mechanical work, the 
 
            heaviest involving putting in vehicle rearends and 
 
            transmissions.
 
            Claimant said he began working for defendant employer on 
 
            March 31, 1989, as a concrete finisher.  He testified he had 
 
            no tingling or problems with his hands prior to March 31, 
 
            1989, but he did have only a 25 percent of normal strength 
 
            in his left arm due to his 1979 accident.
 
            Claimant contends he used his left arm in all of these other 
 
            jobs since 1979 but not as much.  He said his leaving these 
 
            other jobs is not because of his left arm injury.  Claimant 
 
            said he has never recovered from his November 1979 left arm 
 
            injury up this date.  He cannot use his left as well as his 
 
            right.
 
            Claimant contends he got his carpal tunnel from pulling 10 
 
            to 24 inch steel pins (stakes) that were in the clay ground 
 
            holding the concrete forms.  Claimant said that after four 
 
            or five weeks, he developed numbness and pain in both wrists 
 
            but mostly in the right.
 
            Claimant contends he never had numbness in his left hand 
 
            before the spring of 1989 and that he could hardly bend his 
 
            left hand after the August 1989 injury.  Claimant indicated 
 
            that James M. Caterine, M.D., suggested surgey but claimant 
 
            did not have surgery because the insurance company denied 
 
            liability and would not pay for it.  As shown by the 
 
            records, it is apparent that claimant did not want surgeyr 
 
            and that surgery was not eventually recommended.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant said Dale M. Grunewald, D.O., took him off the job 
 
            on August 1, 1989.  From March 31, 1989 to August 1, 1989, 
 
            claimant had consistently worked.  Claimant said he had no 
 
            restrictions prior to August 1, 1989.  Claimant indicated 
 
            Thomas F. DeBartolo, M.D., released him to work in December 
 
            1989 but claimant was not to do repetitive work or use a 
 
            sledgehammer.
 
            Claimant indicated that after defendant employer and Dr. 
 
            DeBartolo told him to get work, claimant got a spray 
 
            painting job around July 22 to July 28, 1990, and worked for 
 
            another employer from July 29, 1990 to August 4, 1990.  
 
            Claimant then worked a couple of weeks for Aukes Lawn and 
 
            Pest Control Company around October 1990.  Claimant quit 
 
            these jobs mainly because he thought he was unable to do the 
 
            work or he did not want to be around chemicals.  Claimant 
 
            indicated that other than these jobs, he had no other jobs 
 
            from August 1, 1990 to December 1, 1990.
 
            Claimant is now working for a Chevrolet dealership, having 
 
            begun in April 1991, at $4.60 per hour.  Claimant's job 
 
            involves lubricating, oil changing, etc.  Claimant indicated 
 
            he had looked at mechanic jobs at all the auto dealerships 
 
            in the area and found none.
 
            Claimant said his current job is also repetitive work.  He 
 
            believes he would not have his current job if the employer 
 
            knew of his restrictions of no repetitious work.  Claimant 
 
            indicated his carpal tunnel condition is getting worse but 
 
            he hasn't been back for medical care.
 
            Claimant testified the State Rehabilitation Department has 
 
            not sent him to any employers.  He said they told him to go 
 
            back to school and get some grants.  Claimant indicated he 
 
            applied too late for grants.  Claimant isn't sure whether he 
 
            wants to go back to school or not.  It is obvious claimant 
 
            is putting this off.  He indicated he is getting pressure 
 
            from his girlfriend, the mother of his child.  It appears 
 
            this pressure is for financial support.
 
            Claimant plans to continue his current job with the 
 
            Chevrolet dealership, but is thinking of going to work as a 
 
            mechanic in Minnesota for his sister's boyfriend.  He 
 
            emphasized this is still up in the air as to his plans.
 
            On cross-examination, claimant was referred to interrogatory 
 
            13, which was answered on November 13, 1989, before the 
 
            Second Injury Fund was a party to this action.  At that 
 
            time, claimant said his broken left wrist healed completely 
 
            (Joint Exhibit 13, page 15).  Claimant was questioned as to 
 
            his direct testimony that he had no symptoms as to bilateral 
 
            carpal tunnel prior to beginning work with defendant 
 
            employer.  The attorney referred claimant to joint exhibit 
 
            A, where the doctor referred to claimant's confused history.  
 
            Claimant acknowledged it is his bilateral carpal tunnel that 
 
            prevents him from working nothwithstanding his left wrist 
 
            injury.  It appears surgery is not now recommended.
 
            Claimant indicated he has put in over 100 applications for 
 
            various jobs.  Claimant did not bring any of these with him.  
 
            He said they were at home.  Claimant appears to not realize 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            he has the burden of proof.  Claimant's demeanor was 
 
            questionable when he gave his answer.
 
            Claimant said he could do the pin pulling job if he had a 
 
            pin puller.  He said he is now making per hour close to what 
 
            he was making with defendant employer but the dealership is 
 
            not seasonal work.  Claimant is making on a full-time basis 
 
            now more than what he was making with defendant employer as 
 
            seasonal work.
 
            Claimant said he never took a day off as a result of his 
 
            left wrist 1979 motorcycle injury.  Claimant contends he did 
 
            not see a doctor for his left wrist problem after 1979 
 
            because he had no insurance and no money.  He then contends 
 
            he never complained about his left hand problems because he 
 
            wouldn't have a job.  It appears claimant does not have his 
 
            story in sync.  Claimant was questioned again as to his 
 
            efforts to seek a job and was referred to joint exhibit 14 
 
            in which the doctor indicated claimant had not made a 
 
            significant effort in seeking vocational counseling and 
 
            making an effort to get into the type of work for which he 
 
            is trained and more able to tolerate.  Claimant basically 
 
            had no response.
 
            Loren Aukes, owner of Aukes Lawn and Pest Control, knows 
 
            claimant.  He indicated claimant worked for him 
 
            approximately two months in the fall of 1990 (September to 
 
            October).  Claimant was not required to fill out an 
 
            application and he did not relate any wrist or physical 
 
            problems with his arm or shoulder.  He said the 30 pound 
 
            bags of fertilizer claimant said he lifted were 50 pound 
 
            bags.  Aukes worked side by side with claimant and claimant 
 
            would throw 8 to 10 bags of the fertilizer onto the truck 
 
            and then he would lift and take them to the spreader.  Aukes 
 
            indicated the spreader holds 100 pounds and claimant would 
 
            push the spreader.  He said claimant never complained.
 
            Aukes said claimant told him he had a lawsuit against a 
 
            construction company and if it gets settled, claimant will 
 
            not have to work anymore.  Claimant indicated in his 
 
            rebuttal testimony that he did not believe he said this.  He 
 
            did not deny saying it.  He also was not saying that Aukes 
 
            lied.  Claimant then confusingly said he did not say it and 
 
            then again didn't remember saying it.  Aukes acknowledged 
 
            that claimant indicated to him that he was quitting the job 
 
            because he was scared of the chemicals.
 
            On cross-examination, Mr. Aukes, after looking at claimant's 
 
            W2's acknowledged that claimant worked for him for two weeks 
 
            rather than two months.
 
            The medical evidence shows that claimant had a bilateral 
 
            carpal tunnel syndrome.  Claimant contends this condition 
 
            all began with his employment with defendant employer.  The 
 
            facts appear to indicate that claimant had the beginning of 
 
            carpal tunnel prior to his employment, but it appears that 
 
            this condition materially and substantially ripened and was 
 
            aggravated after claimant began working for defendant 
 
            employer (Jt. Ex. 8) and the undersigned so finds.
 
            Claimant alleges a first injury on November 26, 1979, in 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            which claimant injured his left arm and incurred a 24 
 
            percent permanent impairment rating with A. J. Wolbrink, 
 
            M.D. (Jt. Ex. 17, p. 34).
 
            The greater weight and credible evidence indicates claimant 
 
            was still having problems with his left arm as of August 1, 
 
            1989 even though he was able to do the jobs.  The 
 
            undersigned finds claimant has a permanent loss of the use 
 
            of his left arm as a result of the November 26, 1979 
 
            motorcycle injury and that 24 percent permanent partial 
 
            impairment still exists (Jt. Ex. 10).
 
            Claimant testified as to his first injury and the current 
 
            effect on him.  Claimant vacillates on this point and 
 
            doesn't seem consistent.  (Also see Jt. Ex. 3, 5, 8 and 9.)  
 
            It appears early in the game surgery was recommended (Jt. 
 
            Ex. 5, 6 and 9).  It later appears that surgery was not 
 
            recommended (Jt. Ex. 8).  Claimant seemed not to desire 
 
            surgery and this may also have had some effect on the 
 
            ultimate decision as the doctors could not guarantee perfect 
 
            or better results on the condition that exists prior to any 
 
            surgery.
 
            On January 29, 1990, Thomas F. DeBartolo, M.D., indicated 
 
            claimant is not going to be able to return to the type of 
 
            work he was doing with defendant employer.  Claimant 
 
            testified he could do the work if he had a pin puller (Jt. 
 
            Ex. 8).
 
            On May 12, 1990, Dr. DeBartolo was urging claimant to 
 
            complete his efforts to either finish his schooling or look 
 
            for appropriate work (Jt. Exs. 11, 12, 13 and 14).  It 
 
            appears to the undersigned that claimant is not motivated 
 
            and has other things in his life that interfere with what he 
 
            should do.  The undersigned believes the records support the 
 
            fact that claimant most likely told Mr. Aukes, the lawn 
 
            company owner and former employer, that if he won, he would 
 
            not have to work anymore.  This decision hopefully will set 
 
            the claimant on a course of seeking stable employment and 
 
            not expect a weekly check to be mailed to him for an 
 
            indefinite period of time.
 
            On December 31, 1990, Dr. DeBartolo indicated claimant has 
 
            not made any significant effort to find work or seek 
 
            vocational counseling in an effort to get the type of work 
 
            for which claimant is trained and appears to be more able to 
 
            tolerate.  On this date, the doctor said claimant has a 
 
            significant residual impairment from his motorcycle injury 
 
            (1979) to his left wrist, but separate therefrom and in 
 
            addition thereto, he proposed a 5 percent impairment to each 
 
            of claimant's upper extremities secondary to the bilateral 
 
            carpal tunnel syndrome (Jt. Ex. 14).  It appears claimant's 
 
            restrictions are to avoid work where he would be doing a 
 
            repetitive task in less than five minute intervals 
 
            throughout the day.  It would also be important to avoid the 
 
            amount of force the patient has to use bilaterally in terms 
 
            of generating forces in the range of 50 pounds intermit
 
            tently with his hands perhaps once an hour.  A great 
 
            majority of the force should be kept below those perimeters.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The medical evidence supports a finding that claimant in
 
            curred a simultaneous bilateral carpal tunnel injury that 
 
            arose out of and in the course of claimant's employment on 
 
            August 1, 1989.  The symptoms claimant developed came about 
 
            progressively and cumulatively from the time claimant began 
 
            work with defendant employer on or about March 31, 1989.  
 
            The undersigned finds that claimant incurred a 5 percent 
 
            permanent impairment each to his right and left arms as a 
 
            result of his August 1, 1988 cumulative injury.  Since these 
 
            injuries happened simultaneously, and under the provisions 
 
            of 85.34(2)(s), these convert to 3 percent of the body as a 
 
            whole impairments to the left and the right, which under the 
 
            combined charts result in a 6 percent impairment to 
 
            claimant's body as whole, thereby entitling claimant to 30 
 
            weeks of permanent partial disablity benefits.  The 
 
            undersigned finds that claimant had on August 1, 1989, a 24 
 
            percent permenent impairment to his left arm as a result of 
 
            a 1979 injury.  A 24 percent impairment to an arm amounts to 
 
            60 weeks that would be attributable to the 1979 injury.
 
            Claimant desires additional benefits from the Second Injury 
 
            Fund and contends he has industrial disability resulting 
 
            from the first injury and second injury which should entitle 
 
            claimant to benefits over and above benefits he is entitled 
 
            to from defendant employer as a result of the August 1, 1989 
 
            injury.  Claimant is 37 years old and has had considerable 
 
            experience with community colleges even though he has failed 
 
            to continue the courses.  Evidence indicates claimant is a 
 
            suitable candidate for training or schooling.  It would 
 
            appear that claimant has considerable knowledge in the 
 
            mechanical field.
 
            Claimant has not had a good work history.  At the time of 
 
            his injury his job was seasonal.  He now has a job which 
 
            pays about as much but is not seasonal.  It seems to be more 
 
            in his field as far as mechanics.  Clainant indicated he 
 
            could, in fact, do his old job as a pin puller to take the 
 
            stakes out of the forms used for concrete work.  This seems 
 
            contrary to the doctor's restrictions and yet it is obvious 
 
            claimant knows better.  Claimant is not motivated.  The 
 
            undersigned seriously questions the extent that claimant has 
 
            searched for work.  Claimant incurred a serious impairment 
 
            from a 1979 injury and worked through it.  It appears 
 
            claimant could do the same as a result of the August 1989 
 
            injury and the disposition of this case may help him have 
 
            that incentive.  Claimant has a minor loss of earning 
 
            capacity and with effort the undersigned believes claimant 
 
            could do more than he presently contends.  The doctor's 
 
            restrictions are not as clear as they could be.  The 
 
            undersigned believes the claimant can do more than he 
 
            presently is attempting to do or feels he can do.
 
            Taking into consideration all those criteria in determining 
 
            industrial disability, the undersigned finds that claimant 
 
            has currently a 15 percent industrial disability as a result 
 
            of his first and second injuries.  This would entitle 
 
            claimant to 75 weeks of permanent partial disability 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            benefits.  After allowing a credit for the 60 weeks 
 
            resulting from claimant's first injury which resulted in a 
 
            24 percent permanent partial impairment that still exists, 
 
            and claimant's 30 weeks of permanent partial disability 
 
            benefits as a result of his simultaneous bilateral carpal 
 
            tunnel injury on August 1, 1989, both totaling 90 weeks, 
 
            claimant is entitled to no more permanent partial disability 
 
            benefits from the Second Injury Fund.
 
            The Second Injury Fund, therefore, is not liable to claimant 
 
            for any more benefits.
 
            conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that he received an injury on August 1, 1989, which 
 
            arose out of and in the course of his employment. McDowell 
 
            v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); 
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of August 1, 1989, is causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
            Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
            375, 101 N.W.2d 167 (1960). 
 
            It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            Before the second injury fund is triggered three require
 
            ments must be met.  First, the employee must have lost or 
 
            lost the use of a hand, foot, leg or eye.  Second, the 
 
            employee must sustain another loss or loss of use of another 
 
            member or organ through a compensable injury.  Third, 
 
            permanent disability must exist as to both the initial 
 
            injury and second injury.  See Allen v. The Second Injury 
 
            Fund, State of Iowa, Thirty-Fourth Biennial Report, Iowa 
 
            Industrial Commissioner 15 (1980); Ross v. Service 
 
            Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa 
 
            Indus. Comm'r 273 (1979).
 
            The fund is responsible for the difference between total 
 
            disability and disability for which the employer at the time 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            of the second injury is responsible.  Section 85.64.  Second 
 
            Injury Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 
 
            1970), Second Injury Fund v. John Deere Component Works, 
 
            Iowa Supreme Court Case No. 88-399, filed February 22, 1989.
 
            
 
                 Iowa Code section 85.34(2)(2) provides, in part:  "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."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused bvy a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            If claimant has an impairment to the body as a whole, an 
 
            industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            Claimant lost the partial use of his left arm as a result of 
 
            a November 1979 motorcycle injury which resulted in a 24 
 
            percent permanent impairment and that said permanency exists 
 
            as of August 1, 1989.
 
            Claimant incurred a simultaneous bilateal carpal tunnel 
 
            syndrome injury to his left and right arms that arose out of 
 
            and in the course of his employment through a cumulative 
 
            injury on August 1, 1989, which work injury resulted in 
 
            claimant incurring an additional 5 percent permanent partial 
 
            impairment to his left arm and a 5 percent permanent partial 
 
            impairment to his right arm.
 
            As a result of claimant's simulaneous bilateral carpal 
 
            tunnel syndrome injury on August 1, 1989, claimant incurred 
 
            a combined body as a whole injury of 6 percent, entitling 
 
            him under 85.34(2)(s) to 30 weeks of permanent partial 
 
            disability benefits.
 
            As a result of claimant's first and second injury, he in
 
            curred an industrial disability of 15 percent and that this 
 
            industrial disability was caused by claimant incurring an 
 
            additional second injury on August 1, 1989.
 
            Because claimant's first injury involving 60 weeks and his 
 
            second injury involving 30 weeks, totaling 90 weeks, is mor 
 
            than the 15 percent industrial disability (75 weeks) that 
 
            was incurred as a result of claimant's first and second 
 
            injuries, claimant is entitled to no benefits from the 
 
            Second Injury Fund.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant takes nothing further from these proceedings.
 
            That defendants shall pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert S Kinsey
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Dean A Lerner
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108
 
                      5-1803; 5-3200
 
                      Filed October 10, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            THOMAS D. BANNISTER,      :
 
                      		      :
 
                 Claimant,  	      :
 
		                      :
 
		            vs.       :
 
        		              :       File No. 914298
 
            EXECUTIVE CONCRETE 	      :
 
            CONSTRUCTION,  	      :
 
		                      :     A R B I T R A T I O N
 
                 Employer, 	      :
 
 		                      :        D E C I S I O N
 
     		            and       :
 
                     		      :
 
            INTEGRITY MUTUAL INSURANCE:
 
            CO.,      		      :
 
                      		      :
 
                 Insurance Carrier,   :
 
                      		      :
 
           		    and       :
 
                      		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1803; 5-3200
 
            Found claimant had a 15% industrial disability, but after 
 
            offsetting first injury permanent impairment and the second 
 
            injury scheduled member impairment (90 weeks total), 
 
            claimant was not entitled to anything additional from Second 
 
            Injury Fund.
 
            The employer had settled prior to the hearing.