Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            CAROL COLLINS,   
 
            f/k/a CAROL WILLIS,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 916241/954364
 
            DEPARTMENT OF HUMAN SERVICES,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                    ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Claimant states the following issues on 
 
            appeal:
 
            A.  Whether the deputy erred in failing to consider whether 
 
            Carol's disorder is a non-scheduled injury entitling her to 
 
            an award of industrial disability benefits when the medical 
 
            and lay testimony conclusively established that the symptoms 
 
            and pathology associated with her disorder are not confined 
 
            to either of her left or right hands or arms but rather 
 
            include the left shoulder and areas of the anatomy 
 
            immediately proximal to the shoulder, the sympathetic 
 
            nervous system and the emotional system;
 
            B.  Whether the deputy erred in failing to award permanent 
 
            total disability benefits pursuant to section 85.34(2)(s) 
 
            and (3) for the disablement associated with her repetitive 
 
            motion disorder when the medical evidence conclusively 
 
            established Carol is totally functionally disabled because 
 
            of the disorder affecting her hands;
 
            C.  Whether it is legally erroneous to view Carol's disorder 
 
            as arising out of separate accidents and to then compensate 
 
            her pursuant to Section 85.34(2)(1) where the medical 
 
            evidence conclusively established that (1) the disorder 
 
            arose out of the same exposure and (2) she suffers from 
 
            ailments, the affect of which extends beyond the scheduled 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            loss;
 
            D.  Whether, the deputy having found Carol's disorder to be 
 
            an occupational disease as defined by Section 85A.8 erred as 
 
            a matter of law in awarding compensation under Section 
 
            85.34(2)(1) instead of under Section 85A.4;
 
            E.  Whether the deputy erred in not awarding healing period 
 
            benefits for the interim of January 18, to March 14, 1990.
 
            
 
                                 FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed December 19, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed December 19, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained an occupational disease as a result of her 
 
            employment with defendant, and therefore would entitle 
 
            claimant to industrial disability benefits pursuant to Iowa 
 
            Code chapter 85A.
 
            
 
                 Section 85A.8 of the Iowa Code defines occupational 
 
            disease.  The section states that:
 
            
 
                    Occupational diseases shall be only those 
 
                 diseases which arise out of and in the course of 
 
                 the employee's employment.  Such diseases shall 
 
                 have a direct causal connection with the 
 
                 employment and must have followed as a natural 
 
                 incident thereto from injurious exposure 
 
                 occasioned by the nature of the employment.  Such 
 
                 disease must be incidental to the character of the 
 
                 business, occupation or process in which the 
 
                 employee was employed and not independent of the 
 
                 employment.  Such disease need not have been 
 
                 foreseen or expected but after its contraction it 
 
                 must appear to have had its origin in a risk 
 
                 connected with the employment and to have resulted 
 
                 from that source as an incident and rational 
 
                 consequence.  A disease which follows from a 
 
                 hazard to which an employee has or would have been 
 
                 equally exposed outside of said occupation is not 
 
                 compensable as an occupational disease.
 
            
 
                 *****
 
            
 
                 With respect to compensation for occupational disease, 
 
            section 85A.14 provides that:
 
            
 
                    No compensation shall be payable under this 
 
                 chapter for any condition of physical or mental 
 
                 ill-being, disability, disablement, or death for 
 
                 which compensation is recoverable on account of 
 
                 injury under the workers' compensation law.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 *****
 
            
 
                 *****The record clearly demonstrates that claimant has 
 
            been diagnosed with bilateral carpal tunnel syndrome.  
 
            Claimant testified she had no problems with her hands and 
 
            wrists prior to her employment with the State in May of 
 
            1987.  She alleged no specific trauma or injury.  She 
 
            testified her symptoms gradually worsened.  Claimant 
 
            testified she was required to perform data entry duties.  
 
            Dr. Breedlove, the treating physician, related the carpal 
 
            tunnel syndrome to claimant's keying duties.
 
            
 
                 [The issue of whether carpal tunnel syndrome caused by 
 
            repetitive motion constitutes an occupational disease or a 
 
            traumatic injury was addressed in Noble v. Lamoni Products, 
 
            Appeal Decision, May 7, 1992.  That case discussed the 
 
            differences between an occupational disease under chapter 
 
            85A and an injury under chapter 85.
 
            
 
                 The reasoning and analysis stated in Noble is 
 
            incorporated herein.  Claimant's carpal tunnel syndrome is 
 
            an overuse syndrome and constitutes an injury under Iowa 
 
            Code chapter 85 and not an occupational disease under Iowa 
 
            Code chapter 85A.]
 
            
 
                 Claimant has ***** demonstrated that her injury arose 
 
            out of and in the course of her employment.  Defendant does 
 
            not dispute the arising out of and in the course of 
 
            employment factor.
 
            
 
                 *****
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Breedlove causally related claimant's bilateral 
 
            carpal tunnel syndrome to harmful conditions in the 
 
            employment arena.  The treating orthopedic surgeon 
 
            testified:
 
            
 
                 A.  Yes.  I think that she has a -- developed 
 
                 bilateral carpal tunnel syndrome as a result of 
 
                 overuse with her keying at her work place.  The 
 
                 left one occurred initially, and she was back to 
 
                 work.  She seemed to do reasonably well, and then 
 
                 it recurred, and she developed the reflex 
 
                 sympathetic dystrophy.  When she came back 
 
                 postoperatively from her left and started to 
 
                 develop her right, she had been back to work and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
 njury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 [Claimant's injury is to the wrist.  Claimant's 
 
            impairment from her work injury is confined to the arm, and 
 
            does not extend into the body as a whole.  The medical 
 
            evidence does not establish that claimant's reflex 
 
            sympathetic dystrophy has resulted in impairment of a body 
 
            function extending beyond the scheduled member.  Although 
 
            claimant may have reported pain extending beyond the arm, 
 
            pain is not impairment.  The greater weight of medical 
 
            evidence indicates that the impairment is limited to the 
 
            arm.  Claimant's injury is a scheduled member injury and is 
 
            to be compensated functionally.]
 
            
 
                 Claimant is compensated under section 85.34(l).  ***** 
 
            The benefits under section 85.34 contemplate compensation 
 
            for any effect on the claimant's earning capacity caused by 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            psychological problems stemming from an injury to a 
 
            scheduled member.  Pilcher v. Penick & Ford, File No. 618597 
 
            (App. Decn., October 21, 1987).  While psychological 
 
            problems affect a loss of earning capacity, the scheduled 
 
            loss system which has been created by the legislature is 
 
            presumed to include compensation for reduced capacity to 
 
            labor and to earn.  Schell v. Cent. Eng'g Co., 232 Iowa 421, 
 
            4 N.W.2d 399 (1942).  In other words, the psychological 
 
            aspect is built into the scheduled member loss system.
 
            
 
                 With respect to file number 916241, claimant is 
 
            entitled to a 20 percent permanent partial disability to the 
 
            left hand.  The commencement date for the benefits is 
 
            January 12, 1990, the date on which Dr. Breedlove determined 
 
            claimant had a permanent impairment to the left hand.  At 
 
            that point, claimant had reached maximum medical 
 
            improvement.
 
            
 
                 With respect to file number 954364, claimant is 
 
            entitled to a 20 percent permanent partial disability as of 
 
            June 18, 1991, when Dr. Breedlove opined there would be no 
 
            additional improvements to claimant's right hand.
 
            
 
                 As far as the issues of healing period benefits are 
 
            concerned, claimant is entitled to benefits pursuant to 
 
            section 85.34(1).  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 recovery.  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 Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 
            
 
                 For file number 916241, claimant is entitled to healing 
 
            period benefits for the following dates:
 
            
 
                 05-10-89 through 06-22-89             6.429 weeks
 
                 09-22-89                               .143 weeks
 
                 10-04-89 through 10-06-89              .429 weeks
 
                 10-19-89 through 10-20-89              .286 weeks
 
                 10-24-89 through 01-11-90            11.429 weeks
 
                 Total healing period                 18.714 weeks
 
            
 
                 For file number 954364, claimant is entitled to healing 
 
            period benefits from:
 
            
 
                 02-01-90 through 06-18-91            71.857 weeks
 
            
 
                 For file number 916241, claimant is entitled to 11 
 
            weeks of temporary partial disability benefits in the sum of 
 
            $1,142.94.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27.  The 
 
            section provides that the employer shall furnish reasonable 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies for all conditions 
 
            compensable under the workers' compensation law.  The 
 
            employer shall also allow reasonable and necessary 
 
            transportation expenses incurred for those services.  The 
 
            employer has the right to choose the provider of care, 
 
            except where the employer has denied liability for the 
 
            injury.  Section 85.27.; Holbert v. Townsend Engineering 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner 78 (Review-reopen 1975).  Claimant has the 
 
            burden of proving that the fees charged for such services 
 
            are reasonable.  Anderson v. High Rise Constr. Specialists, 
 
            Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 The authorized treating physician recommended a pain 
 
            management program for claimant.  [Exhibit 1(a), page 26].  
 
            Defendant refused to authorize the program, despite the 
 
            treating physician's recommendation.  Defendant is liable 
 
            for expenses incurred because of defendant's refusal to 
 
            follow the recommendations of the treating physician.  
 
            Defendant will reimburse the sick and accident insurance 
 
            carrier, as well as claimant, for any charges which were 
 
            paid.
 
            
 
                 The final issue to address is whether defendant is 
 
            entitled to a credit for benefits paid pursuant to section 
 
            85.38(2).  As indicated by exhibit 11(c), commencing March 
 
            9, 1990, claimant received $60.00 each month representing a 
 
            minimum income benefit.  The $955.41 figure is the 
 
            claimant's net receipt of this $60.00 monthly payment for a 
 
            period of 16 months.
 
            
 
                 This minimum amount took into consideration claimant's 
 
            receipt of $802.79 each month in workers' compensation 
 
            benefits ($185.26 x 4.33 weeks).  Thus, it is clear that 
 
            this benefit is paid regardless of the fact that claimant is 
 
            receiving workers' compensation benefits.
 
            Section 85.38(2) provides that the credit provided for by 
 
            statute does not apply to payments made under any group plan 
 
            which would have been payable even though there was an 
 
            injury under this chapter or an occupational disease under 
 
            chapter 85A.  Therefore, the State is not entitled to a 
 
            credit as the benefits received by claimant are paid 
 
            regardless of whether the condition is work related.  See 
 
            Hebensperger v. Motorola Communications and Electronics, 
 
            Inc., II Iowa Industrial Commissioner Report 187, 189 (App. 
 
            Decn. 1981).
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 With respect to file number 916241, defendant shall pay 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            unto claimant weekly benefits for thirty-eight (38) weeks of 
 
            permanent partial disability benefits commencing on January 
 
            12, 1990, at the stipulated rate of one hundred eighty-five 
 
            and 26/100 dollars ($185.26) per week.
 
            
 
                 With respect to file number 916241, defendant shall pay 
 
            unto claimant healing period benefits for eighteen point 
 
            seven one four (18.714) weeks at the stipulated rate of one 
 
            hundred eighty-five and 26/100 dollars ($185.26) per week 
 
            payable commencing May 10, 1989.
 
            
 
                 With respect to file number 916241, defendant shall pay 
 
            unto claimant temporary partial disability benefits in the 
 
            total sum of one thousand one hundred forty-two and 94/100 
 
            dollars ($1,142.94).
 
            
 
                 With respect to file number 954364, defendant shall pay 
 
            unto claimant weekly benefits for thirty-eight (38) weeks of 
 
            permanent partial disability benefits commencing on June 19, 
 
            1991, at the stipulated rate of one hundred eighty-five and 
 
            26/100 dollars ($185.26) per week.
 
            
 
                 With respect to file number 954364, defendant shall pay 
 
            unto claimant healing period benefits for seventy-one point 
 
            eight five seven (71.857) weeks at the stipulated rate of 
 
            one hundred eighty-five and 26/100 dollars ($185.26) per 
 
            week payable commencing February 1, 1990.
 
            
 
                 With respect to file number 954364, defendant is liable 
 
            for unpaid medical expenses which are causally related to 
 
            claimant's hands.
 
            
 
                 Defendant shall take credit for one hundred thirteen 
 
            point eight five seven (113.857) weeks of benefits 
 
            previously paid at the one hundred eighty-five and 26/100 
 
            dollars ($185.26) per week rate.
 
            
 
                 Defendant shall take credit for temporary partial 
 
            disability benefits in the sum of one thousand one hundred 
 
            forty-two and 94/100 dollars ($1,142.94).
 
            Claimant shall pay the costs of the appeal including the 
 
            transcription of the hearing.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
                 With respect to file number 954364, defendant is 
 
            ordered to file a first report of injury within thirty (30) 
 
            days of the filing of this decision.
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Ste 201
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.40; 1803.1; 2203
 
                                               Filed March 17, 1993
 
                                               Byron K. Orton
 
                                               MAM
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
                        
 
            CAROL COLLINS,   
 
            f/k/a CAROL WILLIS,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                           File Nos. 916241/954364
 
            DEPARTMENT OF HUMAN SERVICES,   
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            1108.40; 1803.1; 2203
 
            
 
            Claimant was able to prove by a preponderance of the 
 
            evidence that she sustained bilateral carpal tunnel 
 
            syndrome. Claimant was compensated as two scheduled members 
 
            pursuant to section 85A.14 and section 85.34(1).
 
            Reaffirmed holding of Noble v. Lamoni Products, Appeal 
 
            Decision, May 7, 1992, that bilateral carpal tunnel syndrome 
 
            caused by repetitive motion constitutes a traumatic injury 
 
            and not an occupational disease.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PENNY ZUBROD,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 916260
 
            FERKINS MOTEL,                :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AMERICAN FAMILY INSURANCE,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Penny 
 
            Zubrod against Ferkins Motel based upon a stipulated injury 
 
            of April 23, 1989.  The only issue to be determined is the 
 
            extent of permanent partial disability, if any, affecting 
 
            the claimant's left foot.  Claimant also sought to recover 
 
            expenses under the provisions of section 85.27, but was 
 
            prohibited from doing so due to her failure to comply with 
 
            the hearing assignment order.
 
            
 
                 The rate of compensation was stipulated to be $49.58 
 
            per week, but review of the controlling 1988 benefit 
 
            schedule shows the correct rate to be $61.97.  In the 
 
            original printing of the 1988 schedule, the first 12 pages 
 
            were incorrect and replacement pages were issued.  Claimant 
 
            is married with five exemptions and had weekly earnings of 
 
            $67.00.  The rate is $61.97 as shown in the corrected 
 
            benefit schedule, not $49.58 as originally, erroneously 
 
            published.
 
            
 
                 The case was heard at Waterloo, Iowa, on September 9, 
 
            1991.  The record in the case consists of testimony from 
 
            Penny Zubrod, Dee Anna Neitzke and Norma Amble.  The record 
 
            also contains joint exhibits 1, 2, 3, 4, 5, 6, 7, 9 and 10 
 
            and defendants' exhibits 5, 6, 7 and 8.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 On April 23, 1989, Penny Zubrod caught the heel of her 
 
            left foot in a door at the Ferkins Motel where she was 
 
            employed as a maid.  She fractured the anterior portion of 
 
            the calcaneus in her left heel, but the fracture was not 
 
            displaced (exhibit 5, page 1).  Penny had continuing 
 
            complaints and a prolonged period of recovery.  She was 
 
            eventually released to return to work on or about August 1, 
 
            1989 (exhibit 3, page 7).
 
            
 
                 Penny resumed working at the Ferkins Motel as a 
 
            part-time maid for approximately two weeks and then left the 
 
            position.  Subsequently, she has worked in a cheese factory 
 
            and farmed.
 
            
 
                 Penny continues to have pain and discomfort in her left 
 
            foot.  She expressed limitation in her ability to perform 
 
            prolonged standing and stated that her foot swells if she 
 
            performs prolonged standing.  She sought medical treatment 
 
            for her foot in June and July of 1990, but obtained no 
 
            relief (exhibit 3, pages 1, 4 and 5).  At that time, nerve 
 
            conduction velocity and EMG studies were interpreted as 
 
            being normal (exhibit 6).  In his last report, the treating 
 
            orthopaedic surgeon, R. M. Johnston, D.O., provided a 
 
            diagnosis of plantar fascitis (exhibit 3, page 1).  Dee Anna 
 
            Neitzke and Norma Amble, claimant's former employer and 
 
            supervisor, respectively, at the Ferkins Motel, testified 
 
            that, following her return to work, Penny was able to 
 
            perform her job duties, did not complain and did not appear 
 
            to limp.
 
            
 
                 No physician has expressed any opinion which is in the 
 
            record of this case regarding whether or not Penny has any 
 
            permanent impairment as a result of the fracture of her heel 
 
            bone.
 
            
 
                 There is disputed testimony in the record regarding the 
 
            reason Penny left employment at Ferkins Motel and whether or 
 
            not she phoned in and reported that she would not be coming 
 
            to work.  There is likewise disputed evidence in the record 
 
            regarding the reason Penny has not obtained any further, 
 
            timely treatment for her left foot.  Penny's stated 
 
            understanding of the direction from Dr. Johnston was that it 
 
            would get better with time.  She further expressed 
 
            dissatisfaction with Dr. Johnston.  It is specifically found 
 
            that Penny did not resign from the Ferkins Motel due to 
 
            being unable to perform the work, although it is likewise 
 
            found that performing the work did cause her considerable 
 
            pain and discomfort and thereby was a substantial factor in 
 
            causing her to leave that employment.  No determination can 
 
            be made regarding whether or not Penny phoned the employer 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            over the weekend.  Penny appeared to be a fully credible 
 
            witness as did Norma Amble and Dee Anna Neitzke.  Whether or 
 
            not she phoned in has little, if any, bearing on the 
 
            disputed issues of the case.
 
            
 
                 Since there is no rating of impairment, or an 
 
            expression of opinion denying the existence of any permanent 
 
            impairment, the issue of permanent disability cannot be 
 
            easily resolved.  It is important to note that when Penny 
 
            was last seen by Dr. Johnston in July of 1990, he did 
 
            recognize the existence of an ongoing condition which he 
 
            termed as plantar fascitis.  He likewise recommended that 
 
            she wear soft-soled shoes.  These things are indications of 
 
            a continuing problem with Penny's foot.  The prolonged 
 
            recovery likewise is consistent with the existence of a 
 
            continuing problem with the foot.  Agency experience 
 
            likewise demonstrates that a fractured calcaneus is an 
 
            injury which not uncommonly produces significant symptoms 
 
            long after all medical treatment and objectively 
 
            determinable healing has been completed.  Such a condition 
 
            has been known to produce chronic symptoms.  The claimant's 
 
            testimony of her continuing symptoms is quite consistent 
 
            with agency experience regarding injuries of the type which 
 
            she sustained.  Under these circumstances, the state of the 
 
            record warrants a finding of a small degree of permanent 
 
            loss of use of this claimant's left foot.  The degree of 
 
            loss is found to be five percent of the foot.
 
            
 
                                conclusions of law
 
            
 
                 It was stipulated that the claimant sustained injury 
 
            which arose out of and in the course of employment.  The 
 
            extent of her entitlement to compensation during her period 
 
            of recovery was established by stipulation.  The only issue 
 
            was the extent of permanent partial disability, if any, 
 
            which was proximately caused by that injury.
 
            
 
                 Claimant was paid 15 weeks of healing period 
 
            compensation at the incorrect rate of $49.58.  Due to the 
 
            need to correct the rate, she is entitled to the difference 
 
            of $12.39 for each of those 15 weeks.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 23, 
 
            1989 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record is silent with regard to an express opinion 
 
            from a medical practitioner regarding the cause of the 
 
            claimant's continuing complaints regarding her left foot.  
 
            In view of the nature of the injury which she sustained and 
 
            the history of injury contained in the medical records, 
 
            which history is uncontradicted and unquestioned by the 
 
            physicians, it is determined that the April 23, 1989 injury 
 
            which produced the fracture of the claimant's left heel is a 
 
            proximate cause of the continuing symptoms affecting her 
 
            left foot and the disability which exists.
 
            
 
                 The loss referred to in section 85.34(2)(n) actually 
 
            means loss of use.  Moses v. Nat'l Union Coal Mining Co., 
 
            194 Iowa 819, 184 N.W. 746 (1921).  Where the injury is 
 
            limited to a scheduled member, the loss is measured 
 
            functionally.  Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983).  The use of standard guides pursuant to 343 IAC 
 
            2.4 is not, however, the exclusive method of measuring the 
 
            actual loss of use.  Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
            834 (Iowa 1986); Soukup v. Shores Co., 222 Iowa 272, 268 
 
            N.W. 598 (1936).  When ratings of impairment from physicians 
 
            are either absent or defective, agency expertise may be 
 
            relied upon to determine scheduled member disability.  Shank 
 
            v. Mercy Hosp. Medical Center., file number 719627 (App. 
 
            Decn., August 28, 1989); Crawford v. Tama Meat Packing 
 
            Corp., file number 803960 (App. Decn., August 16, 1989);  
 
            Calderon v. IBP, file number 940699 (Arb. Decn., July 3, 
 
            1991); Lemanton v. D. C. S. Sanitation Management, Inc., 
 
            file number 910597 (Arb. Decn., August 3, 1990).  Penny 
 
            Zubrod's ability to use her foot for the things a foot is 
 
            commonly used is impaired by the swelling, discomfort, 
 
            inability to perform prolonged standing and other symptoms 
 
            which she described at hearing.  It has been found that she 
 
            has lost five percent of the use of her left foot.  Under 
 
            the provisions of section 85.34(2)(n), she is entitled to 
 
            recover 7.5 weeks of compensation for permanent partial 
 
            disability of her left foot.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Penny 
 
            Zubrod seven point five (7.5) weeks of compensation for 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            permanent partial disability at the corrected rate of 
 
            sixty-one and 97/100 dollars ($61.97) per week payable 
 
            commencing August 6, 1987.
 
            
 
                 IT IS FURTHER ORDERED that defendants pay claimant 
 
            additional healing period compensation for fifteen (15) 
 
            weeks at the rate of twelve and 39/100 dollars ($12.39) per 
 
            week payable commencing April 23, 1989.
 
            
 
                 IT IS FURTHER ORDERED the entire amount awarded is past 
 
            due and owing and shall be paid to claimant in a lump sum 
 
            together with interest computed from the date each payment 
 
            came due pursuant to section 85.30.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Kevin E. Schoeberl
 
            Attorney at Law
 
            112 North Elm Street
 
            P.O. Box 280
 
            Cresco, Iowa  52136
 
            
 
            Mr. Charles E. Cutler
 
            Ms. Janice M. Herfkens
 
            Attorneys at Law
 
            729 Insurance Exchange Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.40; 5-1803
 
                           Filed October 21, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            PENNY ZUBROD,	      :
 
                      		      :
 
                 Claimant,  	      :
 
		                      :
 
 		            vs.       :
 
                		      :         File No. 916260
 
            FERKINS MOTEL,            :
 
		                      :      A R B I T R A T I O N
 
                 Employer,	      :
 
		                      :         D E C I S I O N
 
		            and       :
 
                		      :
 
            AMERICAN FAMILY INSURANCE,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            
 
            5-1402.40; 5-1803
 
            Where record contained no physician's ratings of impairment, 
 
            or lack thereof, agency expertise relied upon to recognize 
 
            that claimant's injury is one which not uncommonly causes 
 
            residual symptoms and limitations.  Claimant awarded five 
 
            percent permanent partial disability of foot following 
 
            fractured calcaneus (heel bone).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LAURENCE L. WOOD,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 916474
 
            LINDQUIST FORD, INC.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on May 27, 1992, at 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury that 
 
            occurred on March 18, 1988.  The record in the proceedings 
 
            consists of the testimony of the claimant, Roger Ormsby, 
 
            Mary Monica Walters, and Timothy Mettee; claimant's exhibits 
 
            1 through 12; and, defendants' exhibits A and B.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged disability is causally 
 
            connected to his March 18, 1988 work injury;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and claimant's entitlement to disability 
 
            benefits;
 
            
 
                 3.  Whether claimant is an odd-lot candidate.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 53-year-old high school graduate.  
 
            Claimant has no post-high school education other than he was 
 
            sent to a day or two day course while working for the auto 
 
            dealer to learn more about working on current models of 
 
            automobiles.
 
            
 
                 Claimant related his past work history which basically 
 
            involved manual-type labor; installing and cutting glass; 
 
            and a mechanic specializing in front end alignment, chassis 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            work, power steering and brakes.  Claimant related the 
 
            various employers for whom he had worked and the various 
 
            duties up to the time he began working for defendant 
 
            employer in 1968.  He has been with this employer until his 
 
            injury on March 18, 1988.  Claimant's duties with defendant 
 
            employer were basically the same as with other employers 
 
            involving mechanical work such as alignments, rebuilding 
 
            chassis, front end alignments and brake work.  Claimant re
 
            lated that this type of work did require some lifting, 
 
            squatting, twisting, bending, pushing and pulling depending 
 
            on the particular job and the type of vehicle he was working 
 
            on.  Claimant indicated that the lifting weights vary from a 
 
            few pounds up to 100 plus, depending on the particular 
 
            equipment he was using or the particular auto part he was 
 
            replacing, installing, or the vehicle he was working on.  
 
            Claimant indicated that as of 1987 or 1988, he was certified 
 
            as a front end and brake specialist and the employer did 
 
            send him to a local Ford school for one day or two days of 
 
            schooling so that he could learn about new features of the 
 
            new models.  Claimant indicated he is not currently 
 
            certified by Ford.
 
            
 
                 Claimant related no injuries or physical problems prior 
 
            to his March 18, 1988 work injury.
 
            
 
                 Claimant related that on March 18, 1988, while working 
 
            on a truck, an axle fell off the hoist as he was trying to 
 
            install a radius rod into the vehicle receptacle holder.  He 
 
            estimated the axle which fell down on his legs weighed 
 
            approximately 120 pounds.  Claimant indicated he felt a pop 
 
            in his back.  He wriggled himself out from under the truck.  
 
            He indicated at that time no real pain, took a short rest 
 
            and eventually finished working on the truck.  He related 
 
            that as the day went on he became sore.  The next day, a 
 
            Friday, claimant returned to work and was given a lighter 
 
            duty job.
 
            
 
                 Claimant acknowledged that he went bowling as a member 
 
            of a bowling league in the evening of the date of his 
 
            injury.  He indicated that he was only able to bowl two out 
 
            of the three games because he was in pain and it was getting 
 
            worse.
 
            
 
                 Claimant related that Sunday morning, the third day 
 
            after his injury, he was unable to get out of bed without 
 
            considerable effort.  The parties stipulated that claimant 
 
            was off work from March 18, 1989 through July 7, 1989 (68 
 
            weeks), and if causal connection is found, this would be 
 
            claimant's healing period.  Claimant testified that he 
 
            returned to work the following Monday for one-half day and 
 
            then eventually went to the doctor.
 
            
 
                 Claimant related his medical appointments with the 
 
            doctors and certain medical evidence.  He related he went 
 
            through therapy procedures twice.  Claimant stated he had a 
 
            deep compression laminectomy on May 8, 1988, and emphasized 
 
            that he had no other injuries or other matters that caused 
 
            him to have his surgery other than his March 18, 1988 
 
            injury.  Claimant testified that he was sent to Dr. J. 
 
            Weinstein, in Iowa City, by defendants for a second opinion.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant related he was given a complete bank of tests and 
 
            it was recommended he have a second surgery.  He related the 
 
            risk he was told that would occur with a second surgery and 
 
            that he could not be guaranteed there would be no other 
 
            nerve problems as a result of the surgery.  Claimant said it 
 
            was related to him that the surgery would not help his back 
 
            but would only reduce the pain, if successful, and would 
 
            take one year to heal.  Claimant elected not to have this 
 
            surgery because of the severe risks involved.  It appears 
 
            from the record that no one faulted the claimant from making 
 
            this decision.  Claimant testified that no doctor has 
 
            released him to go back to his job.
 
            
 
                 He acknowledged that a rehabilitation specialist, 
 
            Monica Walters, from Intracorp, tried to find him work and, 
 
            in fact, a job was created with defendant employer to set up 
 
            a service assistant position.  Claimant indicated that no 
 
            such position existed when he was working for defendant 
 
            employer before his injury.  He understood that currently 
 
            there is still that job opening with defendant employer.  
 
            Claimant understood this job entails road testing cars and 
 
            helping the other mechanics diagnose car problems.  He 
 
            indicated this job still requires bending occasionally and 
 
            getting underneath cars, squatting, kneeling, rotating the 
 
            body, looking under the hoods, etc.  He said this created 
 
            job still violated the August 1989 restrictions of his 
 
            orthopedic specialist, Arlo B. Brakel.  He indicated Dr. 
 
            Brakel never did release him from those 1989 restrictions of 
 
            no bending, twisting, etc.  Claimant acknowledged that Dr. 
 
            Weinstein, of the University of Iowa, spine and Diagnostic 
 
            Clinic, did say he could do the service assistant job, but 
 
            claimant contends that the job description given Dr. 
 
            Weinstein was not really the true description of the job or 
 
            at least still violated the restrictions of Dr. Brakel.  He 
 
            indicated defendant employer never offered him another job 
 
            other than the service assistant.  He indicated he was to 
 
            begin work three hours per day at this job.
 
            
 
                 Claimant testified that he did attempt to do this 
 
            service assistant job and worked six days in June of 1990, 
 
            but indicated he was unable to do this job and said it 
 
            violated his restrictions.  He indicated that on the last 
 
            day of the six day period he worked he was using a wrench 
 
            and helped install a power steering as a mechanic that was 
 
            to do this was unable to because of a lack of experience.  
 
            Claimant indicated he is unable to perform any of the jobs 
 
            he has done since he graduated from high school because of 
 
            his March 18, 1988 injury and resulting alleged dis
 
            abilities.  He indicated he is not able to do an eight hour 
 
            job and has trouble standing and sitting for prolonged 
 
            periods of time.  Claimant said he has not tried to find any 
 
            work since March 18, 1988, as there is not a job he can do.  
 
            Claimant applied for social security and began receiving it 
 
            in or around September 1989, in the amount of $865 per 
 
            month.  Claimant acknowledged that he enjoys fishing and 
 
            indicated that he has fished quite a bit since January 1989.  
 
            He indicated he either goes out in a boat on the Mississippi 
 
            or fishes from a dock that has a railing.  He indicated he 
 
            is in a boat sometimes from four to six hours.  He related 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            that depending on the boat in which he is fishing, he is 
 
            able to lie down on the floor of the bass boat if his back 
 
            starts to hurt.  Claimant acknowledged that he has worked on 
 
            his 1981 Fairmount automobile, changing the oil, greasing, 
 
            installing brakes, and also replaced a starter.  He no 
 
            longer has that car but has purchased a 1992 Escort.
 
            
 
                 Claimant indicated he last saw Dr. Brakel in 1989 or 
 
            1990.
 
            
 
                 Claimant indicated that he did not appreciate what the 
 
            rehabilitation specialist, Monica Walters, was trying to do 
 
            in trying to bring him back to Lindquist Ford and setting up 
 
            a modified job.  He said he told her that also.
 
            
 
                 Roger Ormsby, service director for defendant employer, 
 
            has worked for defendant employer for 32 years and was 
 
            claimant's supervisor at the time of his injury.  He has 
 
            known claimant the entire time claimant has worked for 
 
            defendant employer.  He affirmed claimant's type of work and 
 
            duties with defendant employer.  He acknowledged that at the 
 
            time of claimant's 1988 injury, there was no position of 
 
            service assistant but that such a job was created to help 
 
            claimant return to his employment.  He indicated claimant's 
 
            duties would involve diagnosing cars and helping the service 
 
            department with the diagnosis after claimant road tested the 
 
            cars.  He indicated claimant was only to do those things he 
 
            was capable of doing.  Mr. Ormsby indicated it was not their 
 
            intent when they created the job that claimant would have to 
 
            look under the cars.  He indicated that the normal 
 
            technician would be the one doing that work.  He understood 
 
            claimant was only test driving the cars.  He said that he 
 
            and the employer knew claimant was injured and that they did 
 
            not want to do anything further to cause claimant to be 
 
            injured.  He said claimant was a very good employee and 
 
            never knew him to be dishonest or to lie.  He believed 
 
            claimant when he said he was having problems with his back.
 
            
 
                 Mary Monica Walters, a rehabilitation specialist with 
 
            Intracorp, testified as to her dealings with the claimant.  
 
            She indicated her duties were to assist in claimant's 
 
            medical management and to return him to work.
 
            
 
                 Ms. Walters indicated she was having difficulty with 
 
            claimant being interested in vocational testing and 
 
            placement.  She said for several weeks she had a hard time 
 
            trying to contact claimant who apparently was in Texas 
 
            visiting his grandchildren.  She indicated she finally 
 
            contacted him on December 20, 1989.  
 
            
 
                 Ms. Walters indicated she met claimant at his home in 
 
            December 1989, and told him she was there to help him if he 
 
            needed more medical and to help return him to some form of 
 
            employment.  She related that claimant told her she was 
 
            invading his personal life and was unhappy that someone was 
 
            working with him.  She said she took the medical information 
 
            and claimant's restrictions and came up with a computer list 
 
            of various jobs within a 30 mile radius that claimant could 
 
            do within his restrictions.  She had given claimant this 
 
            information.  She said that claimant did not follow-up as to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            any employment search.
 
            
 
                 Ms. Walters testified that in January 1990, she met 
 
            with Tim Mettee of defendant employer as to some form of 
 
            work they could provide for claimant utilizing his skills 
 
            other than actual mechanical work.  She emphasized that the 
 
            employer's attitude was very good and was cooperative.  She 
 
            indicated that a job was put together and offered to 
 
            claimant in the Spring of 1990.  She said she checked with 
 
            Dr. Weinstein as to the job description and claimant was 
 
            re-evaluated.  She indicated Dr. Weinstein said claimant was 
 
            able to do that particular job.  She then indicated that she 
 
            met with defendant employer, Mr. Ormsby, and the claimant.  
 
            She indicated claimant's attitude toward returning to work 
 
            was somewhat reserved and claimant said he would have to 
 
            talk to an attorney before deciding.  She emphasized that 
 
            claimant was not enthusiastic about returning to work.
 
            
 
                 Ms. Walters emphasized the importance of motivation as 
 
            the desire to work or return to work must come from within.  
 
            She felt claimant's motivation was lacking.  She indicated 
 
            that claimant told her that financially he had no reason to 
 
            return to work.  She indicated claimant was receiving social 
 
            security plus all the back pay which enabled him to get 
 
            along.  She also indicated claimant had a fear of reinjuring 
 
            himself.  Ms. Walters obviously discounted this fear of 
 
            injury.  She indicated Dr. Weinstein related that the job 
 
            created for claimant would not cause any reinjury.
 
            
 
                 Ms. Walters opined that claimant is able to return to 
 
            gainful employment and that claimant could return to the 
 
            defendant employer and do the job that was offered to him of 
 
            service assistant.  She indicated claimant could also do 
 
            other jobs in other places that were on her list.
 
            
 
                 Defendants' exhibit A, page 56, is the job description 
 
            that Dr. Weinstein was using when he related that claimant 
 
            was able to return to that type of work.  Ms. Walters 
 
            acknowledged that there is nothing in the record that 
 
            indicates claimant can go back to full-time work.  She did 
 
            indicate the intent was that claimant begin by going back to 
 
            work three or four hours per day to see how he could do and 
 
            then depending on the results, the hours could be increased 
 
            or if necessary, reduced.
 
            
 
                 Timothy Mettee, the office manager for defendant 
 
            employer, has been employed with defendant employer eighteen 
 
            years and has known claimant during that entire time.  He 
 
            testified that defendant employer offered claimant a job as 
 
            a service assistant and that claimant returned to work in 
 
            May of 1990 for a few days.  Mettee acknowledged that 
 
            defendant employer created this special position with the 
 
            help of Mr. Ormsby and Ms. Walters.  He indicated that 
 
            claimant was a good employee and that if he could come back 
 
            and work it would be beneficial to both the defendant 
 
            employer's automobile dealership and claimant.  He 
 
            emphasized that claimant is very knowledgeable about cars 
 
            and could tell others how to do certain things.  He 
 
            indicated that claimant could help the mechanics and help in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            doing things more efficiently as he knew the shortcuts.  
 
            Mettee indicated that he thought if claimant could be around 
 
            others, claimant, himself, would feel better and would put 
 
            forth more effort to help himself.  Mettee emphasized that 
 
            defendant employer was very flexible as to claimant's hours 
 
            and the job description.  He further indicated that 
 
            defendant employer would do nothing that would hurt or cause 
 
            any harm to claimant.  He understood claimant was able to 
 
            work four to six hours and defendant employer thought that 
 
            if claimant came back to working three hours at first and 
 
            get used to it, he could work more.  He also indicated that 
 
            if claimant could not do three hours of work, that was also 
 
            okay.
 
            
 
                 Mettee testified that he had met with claimant prior to 
 
            May 1990, and that claimant was not motivated toward 
 
            working.  He indicated he was disappointed as defendant 
 
            tried to help claimant and claimant appeared to not want to 
 
            be helped.  Mettee acknowledged that there is no guarantee 
 
            to anyone as to working and that he did not know what to 
 
            expect from claimant.  He said that defendant employer was 
 
            willing to go in all directions in order to help claimant as 
 
            claimant had too many years with defendant employer to just 
 
            toss that experience away.  He indicated claimant would be 
 
            paid $5 per hour and at the time of the injury, claimant was 
 
            making $10 per hour full-time.
 
            
 
                 Arlo B. Brakel, M.D., a neurologist, wrote a report on 
 
            August 14, 1989, in which he indicated the patient underwent 
 
            a dorsal decompression at levels L2 through L5 with 
 
            bilateral nerve root foraminotomy for the L3, L4 and L5 
 
            nerve roots on May 18, 1988 (Claimant's Exhibit 1, pages 1-
 
            2).  The doctor further wrote that claimant is unable to do 
 
            any climbing of stairs or ladders and should not work on 
 
            uneven surfaces or be required to do any bending, lifting, 
 
            twisting or assume other than essentially upright, erect, 
 
            standing or sitting positions.  The doctor opined that 
 
            according to the AMA Guides to the Evaluation of Permanent 
 
            Impairment, third edition, claimant has a disability rating 
 
            of between 45 to 48 percent.  The undersigned believes the 
 
            doctor means impairment.  Approximately five weeks earlier, 
 
            using the same functional capacity evaluation report and 
 
            impairment figures, the doctor opined a 48 to 50 percent 
 
            disability (impairment) (Jt. Ex. 1, p. 4).
 
            
 
                 In a report dated August 30, 1991, Mickey G. Burt, 
 
            D.C., opined that claimant had a 53 percent body as a whole 
 
            impairment based on the AMA Guides to the Evaluation of 
 
            Permanent Impairment, second edition (Jt. Ex. 2, p. 22).  
 
            Claimant's exhibit 4, page 26, sets out the actual May 18, 
 
            1988 operation claimant had for a decompressive lumbar 
 
            laminectomy, L2-L5 with bilateral nerve root foraminotomy 
 
            for nerve roots L3,4 and L5.  Joint exhibit 6, page 17, is a 
 
            job site analysis done by Alicia Owens, the case manager for 
 
            the Back In Balance program, and Beth Fisher, a licensed 
 
            physical therapist.  They are with the Bettendorf Physical 
 
            Therapy Center.  This exhibit indicates that these 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            individuals went out to the job site and went through the 
 
            type of work that claimant would be doing or was doing at 
 
            the time of his injury.  The report shows that it was 
 
            evident to both individuals that the patient's job he was 
 
            performing at the time of the injury necessitated twisting, 
 
            side bending, forward flexion/extension, and that most 
 
            lumbar spine movements are much less than optimal posture 
 
            necessitating also much less than optimal body mechanics.  
 
            They also indicated there is no such thing as light duty or 
 
            scheduling of certain tasks for certain mechanics to do to 
 
            avoid some of the heavier work.
 
            
 
                 Claimant had a functional capacity evaluation on 
 
            November 15, 1988 (Cl. Ex. 6, p. 22) and a functional 
 
            capacity evaluation on June 28, 1989 (Cl. Ex. 7, p. 1).  On 
 
            the June 1989 test, there is a comment made that "this 
 
            patient has only 1/3 to 1/2 his normal lumbar flexibility." 
 
            (Cl. Ex. 7, p. 2)
 
            
 
                 Claimant's exhibit 10, page 1, reflects that on 
 
            September 12, 1991, Dr. Weinstein and Ted Wernimont, M.S.W., 
 
            who are connected with the Spine Diagnostic and Treatment 
 
            Center, at the Department of Orthopedic Surgery at the 
 
            University of Iowa, felt claimant's current restrictions at 
 
            that time pursuant to a functional capacity test included a 
 
            25 pound one time weight limit or repetitive lifting of 
 
            approximately 12 pounds.  He also indicated they reviewed 
 
            the job description that was sent to them regarding the job 
 
            with defendant employer that was created for the claimant.  
 
            Mr. Wernimont and Dr. Weinstein indicated that if the only 
 
            activities in the job description are those involved in the 
 
            situation, they certainly appear to be within Mr. Wood's 
 
            capabilities at this time.  Mr. Wernimont's letter of 
 
            September 9, 1991, (Cl. Ex. 10, p. 2) sets out in several 
 
            places the reflection of claimant's attitude in this case.  
 
            The letter seems to sum up the situation with Mr. Wernimont, 
 
            stating on page 3 of said exhibit that "I simply do not see 
 
            this gentleman as cooperating with major rehabilitative 
 
            efforts, as he sees it as a situation in which he will 
 
            further injure his back and also be compromised 
 
            financially."
 
            
 
                 Claimant's exhibit 10, page 4, is a September 9, 1991, 
 
            letter by Tom Lanes, M.S., C.R.C., a vocational 
 
            rehabilitation consultant with the Spine Diagnostic and 
 
            Treatment Center.  It reflects similar comments or concerns 
 
            as Mr. Wernimont.  This letter also reflects claimant's 
 
            attitude and Mr. Lanes wrote:  "This makes it impossible to 
 
            make vocational recommendations, as this gentleman remains 
 
            adamant relative to the fact that he does not feel he can 
 
            work in any situation."
 
            
 
                 In an April 23, 1990 letter, Dr. Weinstein and Hutha 
 
            Sayre, R.N., clinical director, with the Spine Diagnostic 
 
            and Treatment Center, also reflect claimant's attitude in 
 
            this workers' compensation situation and in their summary 
 
            they indicated in part: "we do feel that the job description 
 
            which was given us, is within your capabilities if you 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            should choose to return to work.  We would like to stress 
 
            that we feel it is important for you to work through your 
 
            fear of reinjury, as we do not feel that you will be harming 
 
            your back by increasing your activity level." (Cl. Ex. 10, 
 
            p. 7)
 
            
 
                 An April 10, 1990 report of Tom Lanes reflects 
 
            claimant's attitude.  In his vocational recommendations, Mr. 
 
            Lanes stated:  "It is not only impossible but it would be 
 
            inappropriate for me to make vocational recommendations for 
 
            this gentleman when he is extremely firm about stating that 
 
            he believes he is 100 percent vocationally disabled and will 
 
            remain so in the future."  (Cl. Ex. 10, p. 12)  This same 
 
            letter also indicates, as has also been shown in other 
 
            letters or reports, that claimant believes that any return 
 
            to work would be the result of his workers' compensation 
 
            insurance company attempting to reduce their liability and 
 
            that that would not benefit him in any way.  Mr. Lane also 
 
            indicated that claimant feels that a return to work would 
 
            decrease the quality of his life which largely revolves 
 
            around going fishing every few days with friends.
 
            
 
                 On August 25, 1989 (Cl. Ex. 10, p. 17), Dr. Weinstein 
 
            opined that claimant had a 12 percent body as a whole 
 
            impairment as a result of his work-related injury and 
 
            subsequent laminectomy and decompression on May 18, 1988.
 
            
 
                 J. R. Lee, M.D., opined on April 23, 1992, after 
 
            reviewing claimant's history, physical findings, and x-rays 
 
            that claimant had a 15 percent body as a whole permanent 
 
            impairment according to the AMA Guides (Cl. Ex. 11, p. 3).
 
            
 
                 Defendants' exhibit A is the rehabilitation 
 
            consultant's report which is quite complete.  It is obvious 
 
            from that report claimant's attitude is that he does not 
 
            want to work and that he is fearful of reinjuring his back.  
 
            The report also indicates that the activities suggested for 
 
            the claimant by various people would not reinjure his back 
 
            and actually it appears that claimant should try to work 
 
            through his fear of reinjury.
 
            
 
                 This report also reflects that the defendant employer 
 
            continues to offer claimant a job that it is felt would be 
 
            within claimant's restrictions (Defendants' Exhibit 8, pages 
 
            9 and 10).  This report also reflects that claimant does not 
 
            believe he is getting along with the rehabilitation 
 
            consultant because they are attempting to find him work 
 
            which he feels will affect the extent of his industrial 
 
            disability.  It appears he feels that if he doesn't work or 
 
            doesn't make an attempt to work, he will be found to have a 
 
            greater industrial disability.  It is obvious that claimant 
 
            is not familiar with the workers' compensation law.  He is 
 
            correct in that his attitude will affect the extent of his 
 
            industrial disability, but apparently he does not realize 
 
            that his attitude would have a different effect than he 
 
            obviously anticipates.
 
            
 
                 Claimant's negative attitude is reflected consistently 
 
            throughout the rehabilitation consultant's report.  
 
            Motivation obviously affects one's attitude and vice versa.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            One's attitude must come from within and until that attitude 
 
            is one of attempting to help oneself, then the motivation or 
 
            ability of others to help will not be successful or will be 
 
            hampered.  It appears that claimant's position is that he is 
 
            not to do any work or try until the litigation is over.  In 
 
            the meantime, he appears to be very active in the enjoyable 
 
            leisures of life at age 53 (Def. Ex. A, pp. 9, 10, 30, 54 
 
            and 69).
 
            
 
                 The motivation of the claimant appears to be a very 
 
            major element in trying to determine the extent of 
 
            claimant's permanent disability and actual loss of earning 
 
            capacity.  There is considerable evidence that leads one to 
 
            believe that claimant is determined not to work again or 
 
            attempt to work.  Monica Walters related claimant's 
 
            unhappiness with her desire to help the claimant to be 
 
            rehabilitated.  He felt she was invading his privacy.  It 
 
            appears claimant was not interested in vocational testing 
 
            and placement.  Mr. Mettee related his disappointment in 
 
            claimant's lack of motivation or wanting to try to work even 
 
            with defendant employer bending over backwards to 
 
            accommodate claimant.  Ted Wernimont's report additionally 
 
            reflects claimant's attitude as related to him in that 
 
            claimant was absolutely convinced that he could not return 
 
            to work as a full-time mechanic.  Claimant felt that his 
 
            primary goal was to get the workers' compensation litigation 
 
            settled and get on with his life.  Mr. Wernimont felt that 
 
            claimant was not cooperative with major rehabilitation 
 
            efforts; that if he did cooperate he would further injure 
 
            his back and be compromised financially (Cl. Ex. 10, pp. 
 
            2,3).  It is obvious to the undersigned that claimant 
 
            believes if he takes a job he will not be found to be as 
 
            disabled as he desires the undersigned to find him.  
 
            Claimant seems to be enjoying his nonwork status and 
 
            indicated to the rehabilitation counselor that he is 
 
            financially able to get along without working.  Claimant has 
 
            made no attempt to find work since the March 1988 injury.
 
            
 
                 The undersigned believes the conclusions set out in 
 
            claimant's exhibit 10, pages 2 and 3, are an accurate 
 
            presentation of claimant's true feelings and is an obvious 
 
            attempt to manipulate the system rather than claimant's 
 
            feeling the system is manipulating him.  Claimant did not 
 
            give his newly created job with defendant employer a fair 
 
            chance.  The undersigned praises defendant employer in 
 
            attempting to give claimant work and create a job for him.  
 
            Usually, claimants criticize defendants when they don't 
 
            attempt to take claimant back or make a job for them.  It is 
 
            unusual to see a claimant criticizing defendants for trying 
 
            to find a 20 year veteran employee a job.  The undersigned 
 
            finds claimant is totally lacking motivation.  Claimant 
 
            fears he may reinjure himself.  If that is a reality under 
 
            the circumstances, then fishing in a boat on the Mississippi 
 
            river several hours a day should be a concern to the 
 
            claimant also.  Claimant leaves the impression he is 
 
            financially able to get along without working.  This seems 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            to be presently supported by claimant receiving social 
 
            security in the amount of $865 per month and his tax return 
 
            shows considerable interest income.  His 1991 return shows 
 
            approximately $675 per month.  The undersigned specifically 
 
            noted claimant's demeanor during this trial.
 
            
 
                 Claimant is relying on the restrictions of Dr. Brakel 
 
            in August 1989 (Cl. Ex. 1, p. 2).  He emphasizes there has 
 
            never been a change or release in these restrictions.  There 
 
            is no evidence claimant has seen Dr. Brakel in 1990, 1991 or 
 
            1992.  It is true that Dr. Brakel has not changed those 
 
            restrictions but, of course, claimant has not been back to 
 
            see if his condition or restrictions are the same now.  
 
            Claimant was sent to the University of Iowa Spinal and 
 
            Diagnostic Clinic.  Restrictions set out in Dr. Weinstein's 
 
            letter are more current.  Dr. Weinstein's reports are more 
 
            current and the undersigned believes these are more 
 
            realistic under the facts of this case.  The undersigned 
 
            also believes the job description of the job created by 
 
            defendant employer complies with Dr. Weinstein's 
 
            restrictions and as Dr. Weinstein so stated in his September 
 
            12, 1991 report (Cl. Ex. 10, p. 1).  It is also very 
 
            apparent that defendant employer was very flexible if there 
 
            was a doubt in claimant's ability to do the particular job 
 
            and left much in claimant's control.
 
            
 
                 Claimant emphasized that he is to do no bending, 
 
            twisting, turning, etc., and refers to the restrictions of 
 
            Dr. Brakel several years ago.  He uses this to convince 
 
            himself that he is not able to do the newly created job of 
 
            the defendant employer which involved testing cars because 
 
            he would have to get in and out of cars.  Claimant does not 
 
            seem to be fearful of a reinjury by fishing and getting in 
 
            and out of boats and sitting for several hours in a boat on 
 
            the Mississippi river.
 
            
 
                 The parties agree that claimant was off work March 18, 
 
            1988 through July 7, 1989.  One of the issues is the causal 
 
            connection as to claimant's healing period and any permanent 
 
            disability as it may relate to a March 18, 1988 injury.  The 
 
            parties agree that claimant did incur an injury that arose 
 
            out of and in the course of his employment.  The undersigned 
 
            feels the record is convincing that claimant did incur a 
 
            healing period, an impairment and a permanent disability 
 
            which is causally connected to a the March 18, 1988 injury.  
 
            The undersigned finds that the period claimant was off as 
 
            stipulated by the parties is, in fact, claimant's healing 
 
            period.
 
            
 
                 As to claimant's extent of permanent disability, the 
 
            undersigned finds that there is a wide range of impairments 
 
            by the various doctors, the range being approximately 12 
 
            percent up to approximately 53 percent.  The lower 
 
            impairments are the more current.  Claimant has several 
 
            restrictions but the more current ones are considerably less 
 
            restrictive than the older ones that claimant is relying 
 
            upon.  It is obvious to the undersigned that claimant was 
 
            injured at work and does have a permanent disability.  It is 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            also obvious that claimant lacks motivation.  As referred to 
 
            earlier, it appears that claimant, who is 53 years old and 
 
            single, has apparently taken this opportunity to emphasize 
 
            his problems and seems to like his "retirement" and fully 
 
            taking advantage of the leisures he enjoys.
 
            
 
                 Taking into consideration claimant's past and current 
 
            medical record; work experience extent of healing period; 
 
            intelligence; location of his injury and its severity; his 
 
            age; education; functional impairment; motivation or lack of 
 
            motivation; and, the employer's willingness to create a job 
 
            for claimant and help him become employed and hopefully work 
 
            out through his injuries or at least make a good faith 
 
            attempt, and other criteria used in determining industrial 
 
            disability, the undersigned finds that claimant has a 60 
 
            percent industrial disability.  Disability benefits would 
 
            begin July 8, 1989.
 
            
 
                 Claimant has also set out as an issue whether he is an 
 
            odd-lot candidate.  The undersigned finds there is no reason 
 
            to dwell on this issue as the record is full of evidence 
 
            concerning claimant's lack of motivation and his refusal to 
 
            make a good faith effort to try to work by beginning three 
 
            hours per week and his lack of desire, and to "allegedly" 
 
            help himself as to his industrial disability by not 
 
            cooperating or attempting to find work or performing work.  
 
            There is considerable agency precedence that a claimant is 
 
            not an odd-lot candidate if he does not seek work.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 18, 
 
            1988, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a healing period beginning March 18, 
 
            1988 through July 7, 1989, amounting to 68 weeks.
 
            
 
                 Claimant's healing period was causally connected to his 
 
            March 18, 1988 injury.
 
            
 
                 Claimant incurred industrial disability of 60 percent.  
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            This disability is causally connected to his March 18, 1988 
 
            injury.
 
            
 
                 Claimant's benefits would begin on July 8, 1989.
 
            
 
                 Claimant is not an odd-lot candidate.
 
            
 
                 Claimant did not search for work.
 
            
 
                 Claimant lacks motivation.
 
            
 
                 Claimant did not make a good faith effort to attempt to 
 
            work at a job created by defendant employer.
 
            
 
                 Defendant employer made a sincere effort to create a 
 
            job to keep claimant employed using his skills as a long-
 
            term employee  and is willing to accommodate claimant and 
 
            adjust his hours and job to accommodate his restrictions.
 
            
 
                 Claimant has a permanent impairment to his body as a 
 
            whole that is causally connected to his March 18, 1988 
 
            injury.
 
            
 
                 Claimant has a restriction of 25 pounds one time weight 
 
            limit or repetitive lifting of approximately 12 pounds.
 
            
 
                 Claimant is not able to perform the normal duties of a 
 
            mechanic.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of three hundred forty-one and 09/100 
 
            dollars ($341.09) for the period beginning March 18, 1988 
 
            through July 7, 1989, amounting to sixty-eight (68) weeks.
 
            
 
                 That defendants shall pay unto claimant three hundred 
 
            (300) weeks of permanent partial disability at the rate of 
 
            three hundred forty-one and 09/100 dollars ($341.09) per 
 
            week beginning July 8, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that the defendants previously paid one hundred sixty-eight 
 
            (168) weeks, of which sixty-eight (68) weeks were attributed 
 
            to healing period and one hundred (100) weeks were 
 
            attributed to permanent partial disability benefits.
 
            
 
                 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 defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Mr Michael J Motto
 
            Attorney at Law
 
            1000 First Bank Ctr
 
            Davenport IA 52801
 
            
 
            Mr Jeff M Margolin
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
 
         
 
 
 
 
 
 
 
                                            1108; 1803; 1807; 4100
 
                                            Filed June 4, 1992
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         LAURENCE L. WOOD,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 916474
 
         LINDQUIST FORD, INC.,         :
 
                                       :     A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANIES,   :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         1108; 1803
 
         
 
         Fifty-three year old claimant awarded 60% industrial disability.  
 
         Claimant was an experienced mechanic and worked for defendant 
 
         employer twenty years.  Claimant's work injury foreclosed him 
 
         from being a mechanic due to his restrictions which also resulted 
 
         form claimant's back surgery.  Medical evidence showed the 
 
         doctors opinion 12-53% permanent impairment and varied on extent 
 
         of claimant's permanent restrictions.  Causal connection found.
 
         Claimant's motivation was entirely lacking.  He considered 
 
         rehabilitation consultant as an invader of his privacy, trying to 
 
         help get him back to working.  Claimant felt if he went to work, 
 
         this would financially and industrially affect his right to a 
 
         large industrial disability award.  Claimant was enjoying fishing 
 
         in a bass boat on the Mississippi river four to six hours a day 
 
         on a regular basis.  Claimant's attitude and lack of motivation 
 
         affected the extent of his industrial disability award.
 
         
 
         1807
 
         
 
         Employer created a job for claimant to take advantage of his 
 
         skills.  He would test drive a car and report what he thought was 
 
         the mechanical problem.  Claimant was an expert in brake, front 
 
         end alignment and chassis work.  A University of Iowa orthopedic 
 
         specialist opined the job was within claimant's restrictions.  
 
         Claimant made a bad faith effort to do a job which paid 50% less 
 
         than his former job.
 
         
 
         4100
 
         
 
         Deputy determined claimant not to be an odd-lot candidate.  
 
         Claimant never looked for work since his injury.
 
         
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 GAROLD VESTWEBER,
 
 
 
       Claimant,
 
 
 
 vs.
 
                                                     File No. 916497
 
 FINANCIAL INFORMATION TRUST,
 
                                                      A P P E A L
 
      Employer,
 
                                                     D E C I S I O N
 
 and
 
 
 
 ST. PAUL INSURANCE COMPANY,
 
 
 
      Insurance Carrier,
 
 
 
 and                           
 
 
 
 SECOND INJURY FUND OF IOWA, 
 
 
 
      Defendants.
 
      
 
      
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal. The decision of the deputy filed 
 
 October 10, 1991 is affirmed and is adopted as the final agency 
 
 action in this case with the following additional analysis:
 
 
 
 For the purpose of imposing second injury fund liability, an 
 
 injury which affects a listed scheduled member is all that is 
 
 necessary. A body of the whole injury which also results in loss 
 
 of use of a listed member may trigger second injury fund benefits. 
 
 See Cook v. Iowa Meat Processing Company, Appeal Decision, May 
 
 12, 1987 and Thompson v. Marshall & Swift Inc., Appeal Decision, 
 
 August 28, 1989.
 
 
 
 In this case claimant has not proved that either of his injuries 
 
 resulted in the loss of use of a member specified in the second 
 
 injury compensation act. See Iowa Code section 85.64.
 
 
 
 Claimant shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript. Defendant insurance company 
 
 voluntarily paid for the transcript prior to the date of the 
 
 arbitration decision. Claimant shall reimburse defendant insurance 
 
 company for the cost of transcript if reimbursement is requested 
 
 by the defendant insurance company.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1402.40; 5-1402.60
 
                                                    Filed August 27, 1992
 
                                                    BYRON K. ORTON
 
                               
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 GAROLD VESTWEBER,
 
 
 
      Claimant,
 
 
 
 vs.
 
                                                 File No. 916497 
 
FINANCIAL INFORMATION 
 
TRUST,
 
                                                  A P P E A L
 
      Employer,
 
                                                D E C I S I O N
 
 and
 
 
 
 ST. PAUL INSURANCE COMPANY,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
      
 
 5-1402.40
 
 
 
 Claimant, whose evidence and activity was cut off prior to the 
 
 time of hearing, failed to meet his burden of proof in 
 
 establishing that he suffered any disability from being struck on 
 
 the back while at work.
 
 
 
 
 
 5-1402.60
 
 
 
 Claimant failed to show that the medical treatment he received was 
 
 causally related to the injury he received. Defendants not liable 
 
 for cost of medical care.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            GAROLD VESTWEBER, 	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
        		              :      File No.  916497
 
            FINANCIAL INFORMATION TRUST,:
 
                      		      :	  A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
                		      :
 
            ST. PAUL INSURANCE COMPANY,:
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            On August 4, 1989, Garold Vestweber (claimant) filed a 
 
            petition for arbitration as a result of an injury to 
 
            claimant's back occurring on December 6, 1988.  Financial 
 
            Information Trust (FIT) was identified as employer and St. 
 
            Paul Insurance Company was identified as the workers' 
 
            compensation insurer for FIT (collectively defendants).  The  
 
            Second Injury Fund of Iowa (Fund) was also named as a 
 
            defendant.  On September 26, 1991, these matters came on for 
 
            hearing in Des Moines, Iowa.  The parties appeared as 
 
            follows:  the claimant in person and pro se and FIT and St. 
 
            Paul by their counsel Charles Cutler of Des Moines, Iowa.  
 
            The Fund was represented by Assistant Attorney General 
 
            Charles Lavorato of Des Moines, Iowa.  
 
            Prior to the date of the hearing, claimant's evidence and 
 
            activity was cut off for failure to respond to discovery 
 
            requests made by the defendants.  As a consequence, claimant 
 
            presented no evidence at the time of the hearing on this 
 
            matter.  Defendants did not present any evidence at the time 
 
            of hearing.
 
            PRELIMINARY MATTERS
 
            Prior to taking testimony in this matter, the Fund made a 
 
            motion for dismissal on the pleadings.  Claimant had alleged 
 
            a first injury of December 6, 1988 and a second injury of 
 
            January 11, 1988.  It was apparent from the face of the 
 
            pleading that claimant did not allege a first injury that 
 
            triggered Fund liability for the second injury that claimant 
 
            suffered.  
 
            
 
                 Second Injury Fund liability is governed by Iowa Code 
 
            section 85.64 (1991).  This provision requires that before 
 
            Fund liability is triggered three requirements must be met 
 
            by the claimant.  First, the employee must have lost or lost 
 
            the use of a hand, arm, foot, leg or eye.  Second, the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            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 the second injury.  See Allen v. Second Injury 
 
            Fund, 34 Iowa Industrial Commissioner Biennial Report 15, 16 
 
            (Arb. 1980); Ross v. Servicemaster-Story Co, 34 Iowa 
 
            Industrial Commissioner Biennial Report 273, 275 (Arb. 
 
            1979).
 
            Claimant's alleged first injury occurred after the second 
 
            injury.  This fact alone is sufficient to dismiss the Fund 
 
            from this action.  Even if claimant's first injury were 
 
            considered to be the injury to his eye, claimant has still 
 
            not alleged a second compensable injury, since the second 
 
            injury is not to a scheduled member.  Claimant's alleged 
 
            second injury was to his back.  Claimant's pleading failed 
 
            to meet the threshold requirements of Iowa Code.   Since 
 
            claimant did not allege a compensable first injury that 
 
            would trigger Fund liability, the motion to dismiss the Fund 
 
            on the pleadings was granted.
 
            stipulations
 
            
 
                 The only stipulation the parties entered into at the 
 
            time of the hearing was that claimant was struck by a door 
 
            while he was working for FIT on January 11, 1988.
 
            Issues
 
The issues for resolution are as follows:
 
            1.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
FINDINGS OF FACT
 
            Neither party presented any evidence for the purpose of 
 
            resolving disputed questions of fact.  
 
            CONCLUSIONS OF LAW
 
            1.  Whether a causal relationship exists between claimant's 
 
            claimed injuries and the claimed disability and the nature 
 
            and extent of any entitlement to benefits, if any.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of January 11, 1988, is 
 
            causally related to the disability on which he now bases his 
 
            claim.  Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 
 
            1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 
 
            1945).  A possibility is insufficient; a probability is 
 
            necessary.  Burt v. John Deere Waterloo Tractor Works, 73 
 
            N.W.2d 732, 738 (Iowa 1955).  The question of causal 
 
            connection is essentially within the domain of expert 
 
            testimony.  Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 
 
            167,171 (Iowa 1960). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 73 N.W.2d at 738.  The opinion of the experts need 
 
            not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 
 
            (Iowa 1974).  Moreover, the expert opinion may be accepted 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            or rejected, in whole or in part, by the trier of fact.  
 
            Sondag, 220 N.W.2d at 907.  Finally, the weight to be given 
 
            to such an opinion is for the finder of fact, and that may 
 
            be affected by the completeness of the premise given the 
 
            expert and other material circumstances.  Bodish, 133 N.W.2d 
 
            at 870; Musselman, 154 N.W.2d at 133.  The Supreme Court has 
 
            also observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            In this instance, there is insufficient evidence in the 
 
            record to demonstrate that the injury suffered by claimant 
 
            caused any disability.  Since claimant has failed in his 
 
            proof on this issue, claimant shall take nothing from these 
 
            proceedings.
 
            2.  Whether claimant is entitled to medical benefits, 
 
            including a determination of causal connection to the work 
 
            injury and the causal connection of this condition to a work 
 
            injury.
 
Since defendants agreed that claimant had been struck 
 
            in the back by a door while he was at work, claimant may be 
 
            entitled to medical benefits for the effects of the injury.  
 
            Under Iowa Code Section 85.27(1991) an employer has the 
 
            responsibility to provide an injured worker with reasonable 
 
            medical care and has the right to select the care the worker 
 
            will receive.  However, claimant has the burden of 
 
            demonstrating that the medical services obtained were 
 
            causally related to the injury in order to have the expenses 
 
            reimbursed or paid.  Auxier v. Woodward State Hospital, 266 
 
            N.W.2d 139, 144 (1978).  Claimant also has the burden of 
 
            proving that the expenses were authorized and that the fees 
 
            for the medical services provided were fair and reasonable.  
 
            Claimant has failed to sustain his burden of proof with 
 
            regard to a showing that the medical services he has 
 
            obtained were causally related to the work injury that he 
 
            suffered.  Additionally, claimant has failed to show the 
 
            medical care he obtained was authorized or that the fees for 
 
            the medical services were fair and reasonable.  
 
            Consequently, claimant will be denied any benefits for 
 
            medical care pursuant to Iowa Code 85.27.
 
            
 
            THEREFORE, it is ordered:
 
            1.  That claimant shall take nothing from this proceeding.
 
            2.  The Second Injury of Fund of Iowa shall be dismissed as 
 
            a party to this action.
 
            3.  The medical costs that claimant has incurred will not be 
 
            charged to FIT and St. Paul.
 
            4.  The costs of this action shall be assessed against 
 
            claimant pursuant to rule 343 IAC 4.33.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          ELIZABETH A. NELSON
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Garold Vestweber
 
            916 Third St.
 
            Boone, Iowa  50036
 
            Certified and Regular Mail
 
            
 
            Mr. Charles E. Cutler
 
            Ms. Janice Herfkens
 
            Attorneys at Law
 
            729 Ins. Exch. Bldg.
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Charles Lavorato
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51402.40 51402.60
 
                      Filed October 10, 1991
 
                      Elizabeth A. Nelson
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            GAROLD VESTWEBER,	      :
 
 		                      :
 
                 Claimant, 	      :
 
 		                      :
 
 		            vs.       :
 
                 		      :      File No.  916497
 
            FINANCIAL INFORMATION TRUST,:
 
		                      :  A R B I T R A T I O N
 
                 Employer, 	      :
 
		                      :      D E C I S I O N
 
		            and       :
 
		                      :
 
            ST. PAUL INSURANCE COMPANY,:
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            51402.40
 
            Claimant, whose evidence and activity was cut off prior to 
 
            the time of hearing, failed to meet his burden of proof in 
 
            establishing that he suffered any disability from being 
 
            struck on the back while at work.
 
            
 
            51402.60
 
            Claimant failed to show that the medical treatment he 
 
            received was causally related to the injury he received.  
 
            Defendants not liable for cost of medical care.
 
            
 
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER                        
 
            ____________________________________________________________
 
            
 
            MICHAEL KIMREY,       
 
                                                  File No. 916642
 
                 Claimant,   
 
                                                   A P P E A L
 
            vs.         
 
                                                 D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed April 29, 1993 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            
 
            Defendant Second Injury Fund of Iowa correctly states on 
 
            appeal that claimant bears the burden of proof.  Iowa Rule 
 
            of Appellate Procedure 14(f), which places the burden of 
 
            proof on the claimant, was cited by the deputy and is a 
 
            correct statement of law.  There is nothing in the record or 
 
            the decision of the deputy that indicates the burden was 
 
            ever shifted from the claimant to the defendant.
 
            
 
            Nevertheless, claimant has established entitlement to 
 
            benefits from the fund.  The cause or origin of the 
 
            preexisting loss is not controlling, nor is the nature, 
 
            terms and amount of any settlement or award for damages or 
 
            disability made on account of that prior loss.  The 
 
            scheduled value of the actual prior loss is the controlling 
 
            factor.  Claimant did not waive or give up his right to 
 
            pursue benefits from the fund for his 1989 injury by 
 
            entering into a "special case settlement" under Iowa Code 
 
            section 85.35 for his 1982 injury.  Claimant is barred from 
 
            seeking further benefits for the 1982 injury under Iowa Code 
 
            section 85.35.  However, in this case, claimant is not 
 
            seeking further benefits for that injury.  The formula for 
 
            calculating fund liability subtracts the disability from the 
 
            1982 injury.  Entering into a settlement under Iowa Code 
 
            85.35 does not bar a claimant from using the injury forming 
 
            the basis for the settlement as a prior loss in a later 
 
            action against the Second Injury Fund.  All that is required 
 
            by Iowa Code section 85.64 is that the prior loss resulted 
 
            in a loss of use of one of the members listed in 85.64 to 
 
            trigger fund liability.
 
            
 
            The fund also contends that claimant's 1982 injury affected 
 
            the fingers only, and thus does not qualify as a prior loss 
 
            for purposes of Iowa Code section 85.64.  The fund relies on 
 

 
            
 
            Page   2
 
            
 
            
 
            claimant's exhibit 6, page 005, for this assertion.  
 
            However, other exhibits, such as claimant's exhibit 7, a 
 
            report from R.W. Hoffmann, M.D., dated September 10, 1984, 
 
            clearly establish that claimant's 1982 injury was a carpal 
 
            tunnel syndrome that affected the right hand in terms of 
 
            loss of grip strength, as well as resulting in numbness to 
 
            the fingers.  Claimant's 1982 injury clearly resulted in a 
 
            loss of use of the right hand as well as the fingers, and 
 
            thus constitutes a prior loss of a member enumerated in Iowa 
 
            Code section 85.64.
 
            
 
            The fund argues that both claimant's 1982 injury and his 
 
            1989 injury were bilateral injuries, and thus constitute 
 
            simultaneous injuries and do not give rise to fund 
 
            liability.  Although it is correct that a later injury to 
 
            the same member previously injured does not give rise to 
 
            fund liability, in this case claimant's 1982 injury resulted 
 
            in disability of the right hand only.  Although the left 
 
            hand was treated, two physicians rated the left hand as 
 
            suffering no disability from that injury.  Thus, there was 
 
            no prior loss of the left hand from the 1982 injury.  
 
            The 1989 injury resulted in a loss to both the right and 
 
            left hands.  Although the 1989 loss to the right hand is a 
 
            loss to the same member involved in the 1982 injury, the 
 
            1989 injury also resulted in loss to the left hand, which 
 
            did not suffer a loss of use from the 1982 injury.  Thus, 
 
            claimant's prior loss is his 1982 injury to the right hand, 
 
            and his second injury is the 1989 loss to the left hand.  
 
            Claimant is entitled to second injury fund benefits.  See 
 
            Putzier v. Wilson Foods Corporation, Appeal Decision, May 
 
            24, 1991.
 
            
 
            Finally, the fund argues that claimant's 1982 injury did not 
 
            result in disability and does not qualify as a prior loss 
 
            for purposes of Iowa Code section 85.64.  Claimant's rating 
 
            of impairment to his right hand from the 1982 injury clearly 
 
            resulted in a disability.  The fact that claimant was able 
 
            to return to work and later obtain other work does not mean 
 
            that claimant suffered no disability as a result of the 
 
            partial loss of use of his right hand.  This argument is 
 
            without merit. 
 
            
 
            Second Injury Fund shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1993.
 
            
 
            
 
            
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
 
            
 
 
 
 
 
 
 
                                              3202
 
                                              Filed October 28, 1993
 
                                              Byron K. Orton
 
            
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            MICHAEL KIMREY,       
 
                                            File No. 916642
 
                 Claimant,   
 
                                             A P P E A L
 
            vs.         
 
                                            D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            3202
 
            Claimant's injury resulted in a loss to both the right and 
 
            left hands.  Although the current loss to the right hand is 
 
            a loss to the same member involved in the 1982 injury, the 
 
            1989 injury also resulted in loss to the left hand, which 
 
            did not suffer a loss of use from the 1982 injury.  Thus, 
 
            claimant's prior loss is his 1982 injury to the right hand, 
 
            and his second injury is the 1989 loss to the left hand.  
 
            Claimant is entitled to second injury fund benefits.  See 
 
            Putzier v. Wilson Foods Corporation, Appeal Decision, May 
 
            24, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL KIMREY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916642
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :     A R B I T R A T I O N
 
                 Defendant,               :
 
                                          :       D E C I S I O N
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Michael Kimrey, against the Second Injury Fund of 
 
            Iowa, as defendant.  Claimant seeks to recover workers' 
 
            compensation benefits due to work-related injuries he 
 
            sustained in February of 1982 and March 1989.
 
            
 
                 The record in this case consists of testimony of the 
 
            claimant and Denice Kimrey, claimant's wife; claimant's 
 
            exhibits 1 through 13; and, defendant's exhibits B, E, G, I 
 
            through M.
 
            
 
                                      ISSUE
 
            
 
                 The parties presented the following issue for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to permanent partial 
 
            disability benefits for either a disability to scheduled 
 
            members pursuant to Iowa Code section 85.34(2)(s) or whether 
 
            claimant has sustained an industrial disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 At the time of the hearing, claimant, Michael Kimrey, 
 
            was 30 years of age.  Currently, he resides in Des Moines, 
 
            is married to Denice, and has a son who is eight years old.
 
            
 
                 Claimant graduated from Saydel High School in 1980 and 
 
            has entertained no further education.
 
            
 
                 During high school and much of 1981, claimant worked 
 
            for a now defunct restaurant, the Rib Joint.  In 1980 and 
 
            1981, claimant worked as a manager for the restaurant, and 
 
            as such his duties included supervising, hiring and firing 
 
            employees.  He oversaw the operations of two restaurants 
 
            which employed more than 100 employees.  Claimant was also 
 
            in charge of inventory control, work schedules and undertook 
 
            some cooking duties.  Claimant stated that although he was 
 
            paid for 52 hours per week, he actually worked between 70 
 
            and 80 hours per week.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Subsequently, claimant worked as a breakfast cook and 
 
            lunch preparer for the Rolling Prairie Inn.  He also worked 
 
            as a dishwasher at the Chicago Speakeasy, but in December of 
 
            1981, began working for Swift.  Initially, claimant worked 
 
            on the line, and while using a Wizzard knife, removed head 
 
            meat from two bones of the skull.  Claimant worked on 1,800 
 
            to 2,200 heads per day.  After three months, claimant was 
 
            moved to the gut table where his work consisted of 
 
            separating two stomachs.  Claimant then moved to a position 
 
            where he removed the temple meat and during alternate duty 
 
            removed cheeks and lips from heads with a six inch boning 
 
            knife.
 
            
 
                 In February of 1982, claimant became unable to use the 
 
            Wizzard knife.  He was treated by R.P. Hoffman, M.D.  
 
            Eventually, claimant was referred to Marvin Dubansky, M.D., 
 
            who performed bilateral carpal tunnel release in October of 
 
            1983 (Claimant's Exhibits 8 and 9).
 
            
 
                 In September of 1984, Dr. Hoffman examined claimant and 
 
            assigned impairment ratings.  Due to numbness, poor grip and 
 
            limited range of motion of the right hand, Dr. Hoffman 
 
            believed that claimant had sustained a 5 to 10 percent 
 
            impairment of the right hand.  He went on to state that if 
 
            the claimant returned to work and continued to use his right 
 
            hand, his impairment would fall into the range of 5 percent.  
 
            Dr. Hoffman was of the opinion that claimant had made a 
 
            complete recovery of the left hand (Cl. Ex. 7).
 
            
 
                 Marvin Dubansky, M.D., also evaluated claimant.  He 
 
            performed examinations of both the right and left hand, and 
 
            using the AMA Guides to the Evaluation of Permanent 
 
            Impairment, believed that claimant had sustained a 6 percent 
 
            impairment of the right hand as a result of the carpal 
 
            tunnel, but no impairment to the left hand (Cl. Ex. 5).
 
            
 
                 In 1985, claimant sustained a partial amputation of the 
 
            left index finger while operating a band saw (Cl. Ex. 6, pp. 
 
            3 through 4).
 
            
 
                 In April of 1989, while working for Food 4 Less, 
 
            claimant began to experience problems with his right hand.  
 
            Claimant complained of clicking and popping over the radial 
 
            aspect of the wrist and an examination revealed that 
 
            claimant was suffering from a variant of DeQuervain's 
 
            stenosing tenosynovitis.  Claimant received a cortisone 
 
            injection to the first dorsal compartment and was referred 
 
            to Senesio Misol, M.D. (Cl. Ex. 6, p. 3).
 
            
 
                 Throughout April and May of 1989, claimant continued to 
 
            be seen by physicians at Orthopedic Associates, Des Moines, 
 
            Iowa.  He was given a cock up splint and was referred to 
 
            Douglas Reagan, M.D. (Cl. Ex. 6, pp. 1-2).
 
            
 
                 Dr. Reagan first examined claimant on June 8, 1989.  He 
 
            concluded that claimant displayed tenderness over the dorsum 
 
            of the right wrist on the radial side and at the first CMC 
 
            joint.  Claimant displayed pain with active motion of the 
 
            thumb with snapping over the first dorsal extensors.  Both 
 
            the Tinel and Phalen tests were positive in both wrists and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            produced pain in all fingers bilaterally.  Dr. Reagan's 
 
            impression was that claimant had cubital tunnel syndrome 
 
            bilaterally; carpal tunnel syndrome bilaterally; probable 
 
            ulnar nerve entrapment of the wrist; tenosynovitis of the 
 
            right little finger; and, irregularities of the CMC joint.  
 
            Dr. Reagan ordered EMGs, the results of which demonstrated a 
 
            mild cubital tunnel syndrome.  Claimant was scheduled for 
 
            cubital tunnel release surgery and injection of the first 
 
            CMC joint as well as injections of the fifth and fourth 
 
            flexor tendons sheaths on July 21, 1989 (Cl. Ex. 1, pp. 11-
 
            12).
 
            
 
                 While claimant was recuperating from the surgery, he 
 
            underwent cubital tunnel release on the right side.  He also 
 
            received injections of the third, fourth and fifth flexor 
 
            tendon sheaths, underwent an excision of a ganglion cyst 
 
            from the long extensor tendon and underwent a capsuloplasty 
 
            of the right first CMC joint (Cl. Ex. 1, p. 11).
 
            
 
                 In December of 1989, claimant was referred to the Iowa 
 
            Methodist Low Back Institute for physical therapy.  He 
 
            underwent eight weeks of physical therapy treatments and a 
 
            work hardening program for an additional four weeks.  At the 
 
            end of his tenure with the Low Back Institute, during this 
 
            time his exercises consisted of corner pushaways, dorsal 
 
            spine extension exercises, upper trapezius exercises and 
 
            lavator scapulae stretches.  Claimant also received heat 
 
            treatment and ultrasound.  However, final results reveal 
 
            that claimant's hand grips for both hands were decreased 
 
            from the prior month.  Claimant was given a regimen of home 
 
            exercises for controlling a possible thoracic outlet and 
 
            stretching exercises for his cervical spine.  He was 
 
            referred back to Dr. Reagan (Cl. Ex. 2).
 
            
 
                 Although Dr. Reagan's notes include entries from 
 
            January through March of 1990, there is no indication that 
 
            claimant returned to him upon conclusion of the physical 
 
            therapy and work hardening program at the Iowa Methodist Low 
 
            Back Institute.  Dr. Reagan's next entry is dated April 15, 
 
            1991.  On this visit, claimant continued to complain of 
 
            difficulties with his left hand with tingling up into the 
 
            side of his neck.  He continued to take Dolobid and was 
 
            advised to follow up with Dr. Reagan on a as-needed basis 
 
            (Cl. Ex. 1, p. 8).
 
            
 
                 In February of 1992, claimant was evaluated by Dr. 
 
            Reagan.  He was referred by Scott Carver, M.D.  A physical 
 
            examination showed that claimant had a positive result when 
 
            performing the Phalen's test in the right thumb, index, 
 
            long, ring and little fingers.  Further tests on the wrists 
 
            and ulnar nerves at the elbows were negative.  Due to 
 
            claimant's history and his physical examination, Dr. Reagan 
 
            was of the opinion that claimant may have a central problem 
 
            including possible multiple sclerosis and recommended an 
 
            evaluation by a neurologist (Cl. Ex. 1, pp. 5-7).
 
            
 
                 Ultimately, Dr. Kimrey was of the opinion that due to 
 
            his employment at Food 4 Less, he had sustained an 
 
            additional impairment to the right upper extremity of 3 
 
            percent and an 8 percent impairment to the left upper 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            extremity.  Physical restrictions included avoiding 
 
            repetitive activities and lifting of more than 10 pounds.  
 
            Claimant was not to work or lift overhead.  Dr. Reagan felt 
 
            that claimant should not return to work as a meat cutter 
 
            (Cl. Ex. 1, p. 1).
 
            
 
                 Claimant underwent a vocational evaluation performed by 
 
            Marquardt Consulting Services.  Mr. Marquardt's report and 
 
            notes are labeled claimant's exhibit 13 and indicate that 
 
            claimant was excluded from more than 70 percent of the job 
 
            market and remaining job opportunities would pay an average 
 
            of 43 percent less than his earnings would have been prior 
 
            to the injuries.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be decided is whether claimant is 
 
            entitled to Second Injury Fund benefits.
 
            
 
                 The Fund argues several points.  They claim that 
 
            claimant gave up his right to obtain any further benefits 
 
            under Chapter 85 due to a contested case settlement with 
 
            Swift in February of 1982.
 
            
 
                 Additionally, the Fund argues that claimant's first 
 
            injury is not a qualifying injury because the permanency 
 
            ascribed to his right arm were actually disabilities to the 
 
            fingers which did not extend into the hand or the arm.
 
            
 
                 The Fund also argues that claimant's first and second 
 
            injuries were simultaneous injuries to both hands or arms 
 
            and would not enable him to recover Fund benefits.
 
            
 
                 They also contend that there is no evidence which 
 
            supports claimant's contention that the first injury 
 
            affected his ability to find or retain work.
 
            
 
                 Finally, the Fund argues that claimant's injuries are 
 
            occupational diseases to be compensated industrial under 
 
            Iowa Code section 85A.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 In 1984, claimant underwent bilateral carpal tunnel 
 
            releases.  He sustained a permanent impairment to his right 
 
            hand.  Subsequently, claimant underwent bilateral cubital 
 
            tunnel releases and received additional impairment ratings 
 
            to the right upper extremity of 3 percent and an 8 percent 
 
            impairment rating for the left upper extremity.  Clearly, 
 
            claimant falls within the requirements for a recovery of 
 
            Second Injury Fund benefits.
 
            
 
                 As a result, an analysis of his industrial disability 
 
            is warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            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.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 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 is 30 years of age.  He graduated from high 
 
            school in 1980 and has received no further education.
 
            
 
                 Claimant's work history has been in restaurant 
 
            management and factory work.  As a restaurant manager, 
 
            claimant was responsible for day-to-day operations including 
 
            hiring and firing workers; taking inventory; cooking; 
 
            constructing work schedules; and, overall supervision of 
 
            more than 100 employees.  Claimant also performed cooking 
 
            and cleanup duties.
 
            
 
                 As a factory worker, claimant was subjected to 
 
            repetitive work which mandated high productivity levels.  
 
            Currently, claimant works as a custodian at Dowling High 
 
            School and earns $6.39 per hour.  As a restaurant manager, 
 
            his earnings were $350 per week.  During his tenure as a 
 
            meat cutter for Food 4 Less, claimant earned $7.45 per hour.  
 
            It has been recommended that claimant not return to any 
 
            position which requires him to cut meat.  Claimant also has 
 
            a very severe restriction of no lifting of more than ten 
 
            pounds.  He is also not to perform repetitive activities or 
 
            overhead work.
 
            
 
                 Claimant's restrictions certainly limit his job 
 
            opportunities.  However, nothing in his description of his 
 
            work as a restaurant manager would prevent him from seeking 
 
            this type of employment.
 
            
 
                 Claimant has been able to secure suitable employment 
 
            and he has been able to tailor his duties to match 
 
            restrictions given to him.  He can no longer perform duties 
 
            as a meat cutter, which increases his loss of earning 
 
            capacity.
 
            
 
                 Claimant is relatively young and could be retrained if 
 
            he sought additional education; he is of average 
 
            intelligence; claimant did not display a great deal of 
 
            motivation, yet he did secure steady employment; claimant 
 
            has severe lifting restrictions, which limits his ability to 
 
            perform certain tasks at his current job; he has undergone a 
 
            lengthy healing period process after several surgeries; and, 
 
            claimant has sustained actual loss of earnings of 
 
            approximately 14 percent.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, and considering that claimant will be 
 
            unable to return to the type of work he was performing at 
 
            Food 4 Less, it is determined that claimant has sustained a 
 
            25 percent industrial disability.
 
            
 
                 The Fund's liability is determined by using the 
 
            following formula:
 
            
 
                      125  weeks (industrial disability  resulting from
 
                                combined effects of all injuries)
 
            
 
                    - 9.5  weeks (impairment value of the prior losses: 
 
            5%
 
                                of 190 weeks)
 
            
 
                   - 17.5  weeks (impairment value of the second 
 
            injuries
 
                  _______        for which employer is responsible)
 
            
 
                     98    weeks
 
            
 
                 As a result, claimant is awarded 98 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay claimant ninety-eight (98) 
 
            weeks of benefits at the rate of one hundred ninety-four and 
 
            95/100 dollars ($194.95) per week beginning March 1, 1990.
 
            
 
                 That defendant shall pay accrued amounts in a lump sum,
 
            
 
                 That defendant shall pay interest on the award.
 
            
 
                 That defendant 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 by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Marvin Duckworth
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-3200
 
                                              Filed April 29, 1993
 
                                              Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL KIMREY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 916642
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :     A R B I T R A T I O N
 
                 Defendant,               :
 
                                          :       D E C I S I O N
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-3200
 
            Claimant awarded Second Injury Fund benefits.