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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FLOYD J. ELLIOTT,             :
 
                                          :
 
                 Claimant,                :     File Nos. 923668
 
                                          :               936510
 
            vs.                           :               912957
 
                                          :
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 8, 1991, in Des 
 
            Moines, Iowa.  These are proceedings in arbitration wherein 
 
            the claimant seeks compensation for permanent partial 
 
            disability benefits as a result of injuries occurring on May 
 
            6, 1988, September 5, 1988 and November 11, 1988.  The 
 
            record in the proceedings consists of the testimony of 
 
            claimant and Lorraine Hackett; and joint exhibits 1 through 
 
            10.
 
            
 
                                      issues
 
            
 
                 The issues for resolution as to the November 11, 1988 
 
            injury are:
 
            
 
                 1.  Whether claimant's alleged permanent disability is 
 
            causally connected to his November 11, 1988 injury;
 
            
 
                 2.  The extent of claimant's permanent disability; and,
 
            
 
                 3.  Whether claimant is entitled to 85.27 benefits, 
 
            namely, as to the Mercy Hospital bill and Dr. Jones' $144 
 
            bill, which has not been received by the parties, the issue 
 
            being as to authorization.
 
            
 
                 The issues for resolution as to the May 6, 1988 and 
 
            September 5, 1988 injuries are:
 
            
 
                 1.  Whether claimant's alleged permanent disability is 
 
            causally connected to his May 6, 1988 injury; and,
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits.  As to 
 
            the nature, the question is whether the injury is to the 
 
            body as a whole or a left hand scheduled member.
 
            
 
                 The parties agree that the May 6, 1988 and September 5, 
 

 
            
 
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            1988 injuries are one and the same and that the parties 
 
            proceeded on the basis of a May 6, 1988 injury and that the 
 
            September 5, 1988 allegations are, in fact, encompassed 
 
            within the May 6, 1988 injury.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified both in person and through his 
 
            deposition taken on August 23, 1990.  Claimant is a 
 
            37-year-old who left high school in the twelfth grade but 
 
            shortly thereafter obtained his GED.  Claimant has had no 
 
            other formal education.
 
            
 
                 Claimant described his work history up to his 
 
            employment with defendant employer beginning in February 
 
            1988.  This history involved working as a bottle sorter, 
 
            stocker and grocery deliverer, painting houses, working as a 
 
            mechanic on trucks, driving trucks for the city of Windsor 
 
            Heights, gas station mechanic, operating his own insulation 
 
            business, repairing and cleaning air conditioners.  Claimant 
 
            indicated his mechanic ability was self taught and by 
 
            observing his father as his father worked on machinery.  He 
 
            said the current autos with computers are beyond his 
 
            knowledge to repair (Joint Exhibit 7, page 5).  This exhibit 
 
            sets out in more detail claimant's work history generally 
 
            referred to above.
 
            
 
                 Claimant describe his jobs and their nature while 
 
            working for defendant employer (Jt. Ex. 10, pp. 14, 15).
 
            
 
                 Claimant said he started having shoulder problems and 
 
            left hand pain up his arms into his shoulder on May 6, 1988.  
 
            He was given medicine and then a shot and put on light duty.  
 
            He said his pain became worse and also started in his right 
 
            shoulder.  Claimant said he worked right up to a month 
 
            before his surgery.  Claimant had carpal tunnel left hand 
 
            surgery on September 7, 1988.  He was off two days and 
 
            returned to work with a half cast on his hand.  His job at 
 
            that time was to pull rejected tires.
 
            
 
                 On November 11, 1988, claimant was pulling tread off a 
 
            tire with a hook which pulled through the rubber causing 
 
            claimant to fall back and hit his low back on a guardrail.  
 
            He reported this on November 11, 1988 to defendant employer 
 
            (Jt. Ex. 1, p. 75A).  Claimant hurt but continued to work.  
 
            Claimant said one of the company doctors told him there was 
 
            nothing wrong with him while another said there was a 
 
            problem (Jt. Ex. 10, p. 24).  Claimant said defendant 
 
            employer finally transferred him approximately one month 
 
            later to the fork lift position.  Claimant received therapy, 
 
            ice packs and ultrasound.  Claimant worked until the end of 
 
            June 1988, but he said the pain in his left leg was so 
 
            severe that he fell twice as his leg would go to sleep.
 
            
 
                 Thomas A. Carlstrom, M.D., performed a lumbar 
 
            laminectomy L5-S1 on claimant on July 21, 1989 (Jt. Ex. 1, 
 
            p. 44).  Claimant was off eight weeks.
 

 
            
 
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                 Claimant said his left leg got better but his back did 
 
            not.  The pain eventually shifted to his right side.  
 
            Claimant indicated his job with defendant employer upon his 
 
            return to work was driving a jeep fork lift and he could not 
 
            keep up with the work.
 
            
 
                 Claimant worked until October 24, 1989, at which time 
 
            he was terminated for having falsified his application.
 
            
 
                 Claimant went to work for Harkin Glass Company as a 
 
            driver in January 1990 to May 1990.  He said his pain was so 
 
            bad all the time and was becoming worse, so he quit.  He did 
 
            not file for workers' compensation against that company.  
 
            Claimant then worked driving a semi to Fort Dodge and back 
 
            delivering mail once or twice a week.  This required no 
 
            loading or unloading.  Claimant said he could not do this 
 
            anymore due to his condition.  Claimant found no other work 
 
            so he went back to defendant employer to see about a job in 
 
            November 1990.
 
            
 
                 Claimant said Dr. Carlstrom did another MRI and more 
 
            therapy was prescribed in November 1990 until the end of 
 
            January 1991, when he was released from therapy.  Claimant 
 
            indicated it was recommended he sign up for swimming and 
 
            whirlpool three times a week for six weeks.  Claimant 
 
            emphasized the insurance company would not pay for this.
 
            
 
                 Dr. Carlstrom was called to Saudi Arabia so claimant 
 
            couldn't see him again.  Claimant said the insurance would 
 
            not pay for another doctor so claimant attempted to find his 
 
            own doctor.  Claimant said he tried to find several doctors 
 
            but no one wanted to dispute Dr. Carlstrom.  Claimant 
 
            eventually called Robert Jones, M.D., who called back two 
 
            weeks later and agreed to see claimant.  He said Dr. Jones 
 
            recommended another MRI and after his second visit 
 
            recommended claimant go to a pain clinic or Sister Kenney 
 
            Hospital, in Minneapolis.
 
            
 
                 Claimant was asked about his prior injuries or 
 
            accidents.  He related a 1973 hernia when he got kicked, but 
 
            he had no surgery.  In 1974, he was struck in the head and 
 
            appeared to have had a workers' compensation settlement but 
 
            he remembers nothing about this incident.  He said it 
 
            appears his signature is on the paper.  In January 1979, 
 
            claimant was off work five weeks due to pain in his lower 
 
            back caused by a tow truck accident.  He described his 1979 
 
            injury in his deposition as a hip injury involving a socket.  
 
            He said he had back problems for one and one-half years 
 
            thereafter.
 
            
 
                 Claimant was asked about the Firestone medical records 
 
            and history that he filled out and in which he answered "no" 
 
            to all the medical questions (Jt. Ex. 1, pp. 65, 66).  
 
            Claimant said he denied any prior problems in order to get a 
 
            job.  He said he felt good and was having no problem or back 
 
            pain at that time.  He said Firestone did a physical and 
 
            took x-rays and found no problems.
 
            
 
                 On cross-examination, claimant acknowledged he also had 
 

 
            
 
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            a 1977 auto accident causing neck and right shoulder injury, 
 
            which he doesn't recall, and a 1978 minor right elbow 
 
            injury.  Claimant's records reflect that he hurt his right 
 
            elbow on January 7, 1989, at work (Jt. Ex. 1, pp. 176, 185, 
 
            217 and 223).  It appears to the undersigned that there is 
 
            no evidence in the record of any residual permanent 
 
            impairment or lingering problems from these injuries.
 
            
 
                 Claimant was asked about a herniated disc determination 
 
            of a  Douglas W. Brenton, M.D., in a 1987 low back problem 
 
            in which a CT scan on March 11, 1987 showed a herniated disc 
 
            at L5-S1 (Jt. Ex. 1, pp. 21-24).  Claimant eventually 
 
            remembered the event but not the herniation. Although at 
 
            times it seemed unbelievable that claimant would forget 
 
            certain injuries, the undersigned does note that claimant 
 
            had retrograde amnesia, as noted in the January 1979 medical 
 
            record (Jt. Ex. 1, p. 219).
 
            
 
                 Claimant said that when he returned to the fork lift 
 
            light duty job on September 13, 1989, he was making $11.00 
 
            per hour and anticipated continuing that job to the current 
 
            day if he had not been terminated due to his false 
 
            application.  At the time of his November 1988 injury, 
 
            claimant was making $11.00 per hour.
 
            
 
                 Claimant acknowledged that defendants had Lorraine 
 
            Hackett attempt to help him with a vocational rehabilitation 
 
            plan, which he agreed to.  He said he changed his plan 
 
            because defendants were not paying his medical bills.  He 
 
            also related his wife did not want him to go to a woman 
 
            vocational rehabilitation person.  Jack Reynolds was then 
 
            assigned to the case.
 
            
 
                 Claimant's complaints basically are sore shoulders, 
 
            left more than right, and the feeling gone in his two lower 
 
            fingers of his left hand.  Claimant acknowledged he did not 
 
            check with defendant insurance company before he went to Dr. 
 
            Jones.
 
            
 
                 Lorraine Hackett, a rehabilitation consultant, 
 
            testified her first contact with claimant was in September 
 
            1990.  She related the history, records and test results she 
 
            had.  She said claimant had an excellent mechanical aptitude 
 
            and good communication skills.  She concluded and targeted 
 
            the job areas for claimant which ranged from $7.00 up to 
 
            $10.50 per hour.  She gave claimant job leads and he was 
 
            also to seek jobs on his own.  She said claimant seemed 
 
            enthusiastic and followed up.  Her last contact with 
 
            claimant was on November 5, 1990, and she understood 
 
            claimant's wife objected to him working with a woman so his 
 
            case was transferred to Jack Reynolds.  Claimant was called 
 
            on January 4, 1991, and he said he would not cooperate until 
 
            his bills were paid.  She said the state rehabilitation 
 
            became involved but claimant did not keep his appointment.
 
            
 
                 Ms. Hackett helped claimant with his resume but she did 
 
            not recommend claimant become a mechanic due to his 
 
            restrictions nor does she recommend painting due to working 
 
            overhead or heavy lifting.  Dr. Carlstrom had told him to 
 
            avoid heights.  Ms. Hackett said claimant could do the fork 
 

 
            
 
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            lift job today and that Dr. Carlstrom also said he could 
 
            return to that job.  Jack Reynolds' report of March 1, 1991 
 
            (Jt. Ex. 3), indicates claimant did not wish to accept any 
 
            vocational rehabilitation services.  Claimant complained of 
 
            problems but it doesn't appear he was helping himself to the 
 
            extent that he could (Jt. Ex. 3, p. 79).
 
            
 
                 Joint Exhibit 4 reflects some of claimant's job search 
 
            efforts.  Joint Exhibit 6, page 13, is a letter from 
 
            defendant employer's manager of the heavy duty tire building 
 
            department regarding claimant's attendance record.  Page 15 
 
            shows claimant as one of several persons on said exhibit who 
 
            have injuries.  It indicates these people would serve 
 
            defendant employer in another capacity and add value to 
 
            their products.
 
            
 
                 Thomas A. Carlstrom, M.D., saw claimant on June 21, 
 
            1989, at which time claimant had symptoms of left L5 
 
            radiculopathy with pain in back and left leg radiating to 
 
            the lateral portion of claimant's foot.  He indicated this 
 
            was similar to claimant's symptoms six to eight months ago 
 
            and also two years ago.  The doctor indicated claimant's CT 
 
            scan in 1987 also shows a small herniated disc at L5-S1, but 
 
            on the 1989 CT scan it was larger.  A CT scan on April 1, 
 
            1983 shows the same thing as the 1987 CT scan (Jt. Ex. 1, p. 
 
            192).
 
            
 
                 On July 21, 1989, claimant had a laminectomy for a 
 
            herniated disc at L5-S1 left.  A very large herniated disc 
 
            was found at that level (Jt. Ex. 1, p. 43).
 
            
 
                 On November 16, 1990, Dr. Carlstrom wrote a letter 
 
            which is confusing in part, as he refers to an injury in the 
 
            early part of 1989.  Looking at all the evidence and taking 
 
            Dr. Carlstrom's medical as a whole, the undersigned believes 
 
            that the injury he was referring to was, in fact, on 
 
            November 11, 1988, rather than an injury in the early part 
 
            of 1989.  There is no other evidence or record, and the 
 
            undersigned so finds.  Dr. Carlstrom referred to claimant as 
 
            having an old history of a herniated lumbar disc and that he 
 
            had some persistent symptoms throughout his history even 
 
            though he was able to work.  He then opined that approxi
 
            mately one-third of claimant's impairment should be referred 
 
            back to his prior injury.  The undersigned, as indicated 
 
            above, believes the doctor is referring to claimant's injury 
 
            prior to November 1988, and, therefore, indicated claimant 
 
            would have an approximate 8 percent impairment from what the 
 
            undersigned finds was his November 11, 1988 injury.  There 
 
            appears to be attached to this letter, and marked as Joint 
 
            Exhibit 1, pages 3 and 4, the apparent restrictions that Dr. 
 
            Carlstrom placed on claimant.  There is no evidence that 
 
            these were ever removed.  Apparently, these restrictions, in 
 
            part, are that claimant is limited to occasional lifting or 
 
            carrying of 30 pounds and frequently 20 pounds, and 
 
            restricted from heights.  He indicated claimant could not 
 
            return to his former job, but that he could return to other 
 
            work with restrictions defined herein.  It is apparent from 
 
            the record and from the rehabilitation consultant that Dr. 
 
            Carlstrom did approve of claimant returning to his lighter 
 
            duty fork lift job that he was doing at the time he was 
 

 
            
 
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            terminated.  On this same report, the doctor indicated 
 
            claimant's total impairment was 12 percent.  By reducing 
 
            that one-third, he arrived at the 8 percent referred to 
 
            above.
 
            
 
                 Claimant attended the Iowa Methodist Low Back Institute 
 
            and received physical therapy there several days between 
 
            September 20, 1990 and December 7, 1990.  Upon his release, 
 
            the institute's assessment of claimant was that they could 
 
            see little benefit to claimant from pursuing additional 
 
            physical therapy intervention and they found little 
 
            improvement in function.
 
            
 
                 A.B. Grundberg, M.D., on May 8, 1990, opined that 
 
            claimant had a 3 percent permanent impairment of his left 
 
            hand from claimant's left carpal tunnel syndrome and that 
 
            the healing period ended on November 20, 1989 (Jt. Ex. 1, 
 
            pp. 29 and 30).  Claimant's medical indicates he was having 
 
            problems with his left hand with pain in his shoulders.  Dr. 
 
            Grundberg diagnosed on September 15, 1988 that claimant had 
 
            a left carpal tunnel syndrome and bursitis in his left 
 
            shoulder (Jt. Ex. 1, p. 34).  He later determined that 
 
            claimant also had a narrowing between C6 and 7 (Jt. Ex. 1, 
 
            p. 39).
 
            
 
                 On May 6, 1988, claimant complained to defendant 
 
            employer that his right shoulder was getting sore from 
 
            building tires on the B-3 tire machine (Jt. Ex. 1, p. 73).  
 
            On May 13, 1988, claimant told defendant employer his left 
 
            shoulder was bothering him from throwing stock while 
 
            building tires on a B-3 tire machine (Jt. Ex. 1, p. 78).
 
            
 
                 There is no dispute involving any injury herein as to 
 
            the healing period.  As mentioned earlier, and as discussed 
 
            by the parties, the May 6, 1988 and September 5, 1988 
 
            alleged injuries involved one injury and the parties agreed 
 
            that the September 5, 1988 injury is encompassed within the 
 
            May 6, 1988 injury.  For that reason, there will be no 
 
            further reference to the September 5, 1988 injury, 
 
            represented by file No. 923688, until the conclusion and 
 
            order.
 
            
 
                 Regarding the May 6, 1988 injury, the parties are 
 
            basically arguing over whether this injury was to claimant's 
 
            body as a whole or was solely a scheduled member injury to 
 
            claimant's left hand.  Although there is reference in the 
 
            record as to claimant's shoulder bothering him, claimant has 
 
            the burden of proof to show there is a permanent 
 
            work-related injury to his shoulder which would involve his 
 
            body as a whole.  The greater weight of medical evidence 
 
            does not show any permanent impairment or injury to 
 
            claimant's shoulder or body as a whole as a result of a May 
 
            6, 1988 injury.  Although there is some reference in the 
 
            record as to claimant's right elbow, there likewise is no 
 
            evidence of any permanent impairment or injury as a result 
 
            of a May 6, 1988 injury.  There is reference that claimant 
 
            hurt his right elbow on January 7, 1989, at work (Jt. Ex. 1, 
 
            p. 76).  The undersigned finds that the claimant incurred, 
 
            as found by Dr. Grundberg, a 3 percent permanent impairment 
 
            to his left hand resulting from his carpal tunnel syndrome 
 

 
            
 
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            (Jt. Ex. 1, pp. 29 and 30).
 
            
 
                 As to the other issue concerning this injury, 
 
            defendants are questioning the causal connection of the 
 
            injury to any permanent impairment.  It would appear from 
 
            the record and statements of counsel that the causal 
 
            connection dispute is really regarding the causal connection 
 
            of any permanency to the body as a whole or any greater 
 
            permanency than the 3 percent found by Dr. Grundberg.  The 
 
            undersigned finds that there is no causal connection to 
 
            claimant's alleged body as a whole injury to a May 6, 1988 
 
            injury nor any greater permanent impairment than 3 percent 
 
            to his left hand.  The undersigned therefore finds that 
 
            there is a causal connection between claimant's 3 percent 
 
            permanent impairment to his left hand and his May 6, 1988 
 
            injury.  Therefore, claimant is entitled to 5.7 weeks of 
 
            permanent partial disability benefits (190 x 3% = 5.7 
 
            weeks).
 
            
 
                 As to claimant's November 11, 1988 injury, all the 
 
            healing period has been paid so the only dispute is whether 
 
            there is a causal connection to claimant's alleged permanent 
 
            disability and the injury and if there is any permanent 
 
            disability, the extent, thereof, if any.  Claimant has had a 
 
            history of back problems as reflected in the records of Dr. 
 
            Brenton, neurologist, dated March 13, 1987, in which he 
 
            refers to claimant's lumbar spine CT scan.  It shows a 
 
            herniated disc at L5-S1 centrally and on the left (Jt. Ex. 
 
            1, p. 22).  The department of radiology at the Iowa 
 
            Methodist Medical Center, on March 11, 1987, refers to a 
 
            "mild herniation or protrusion of disc material." (Jt. Ex. 
 
            1, p. 63)
 
            
 
                 There is no evidence that claimant was unable to work 
 
            or that his work was hampered by any herniated disc problem 
 
            prior to his November 11, 1988 injury.  Although the company 
 
            doctors initially had claimant continue on with work and 
 
            even though they attempted to accommodate claimant, the 
 
            greater weight of medical evidence and other facts in this 
 
            case show that claimant was bothered and hampered by a back 
 
            condition after his November 11, 1988 injury, and that he 
 
            had a laminectomy performed by Dr. Carlstrom in July 1989 at 
 
            L5-S1 at which time it was found that the condition was much 
 
            larger than the condition found in 1987.  There is no 
 
            indication of any surgery needed in 1987 to correct 
 
            claimant's condition.  Dr. Carlstrom opined that claimant 
 
            had a 12 percent permanent impairment of which he relates 
 
            1/3 or 4 percent to claimant's preexisting situation or 
 
            condition and 8 percent to a subsequent injury.  As referred 
 
            to earlier, Dr. Carlstrom refers to an early 1989 injury and 
 
            has no reference in any respect to a November 11, 1988 
 
            injury.   The undersigned finds that it was obvious the 
 
            doctor had to have been referring to the November 11, 1988 
 
            injury rather than an early 1989 injury to which there is no 
 
            other reference in the record by any other doctor or 
 
            testimony.  The greater weight of medical testimony shows, 
 
            and the undersigned so finds, that claimant's July 21, 1989 
 
            laminectomy was causally connected to claimant's November 
 
            11, 1988 injury and that claimant's impairment was causally 
 
            connected to said November 11, 1988 injury.  The undersigned 
 

 
            
 
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            further finds that claimant had a preexisting condition at 
 
            L5-S1 which involved a mild herniated disc protrusion which 
 
            had not prevented claimant from working and did not need 
 
            surgical intervention.  The undersigned further finds that 
 
            claimant's November 11, 1988 injury substantially and 
 
            materially exacerbated and lighted up claimant's preexisting 
 
            condition, resulting in claimant incurring the July 1989 
 
            surgery and additional 8 percent permanent impairment.  The 
 
            undersigned finds that claimant has certain lifting and 
 
            climbing restrictions all set out in Joint Exhibit 1, pages 
 
            3 and 4, and these are causally connected to claimant's 
 
            November 11, 1988 injury.
 
            
 
                 Claimant was working until October 24, 1989 for 
 
            defendant employer.  At that time he was terminated for 
 
            having falsified his employment application which he filled 
 
            out before being hired in February 1988.  Although the 
 
            undersigned is disturbed by the fact that claimant 
 
            admittedly falsified his application for employment, the 
 
            undersigned is likewise disturbed by the fact that claimant 
 
            was working at his job within his restrictions and ap
 
            parently the only reason he was fired was for the discovery 
 
            of a false application.  This would appear to be a 
 
            subterfuge for trying to get rid of claimant.  Dr. Carlstrom 
 
            and the rehabilitation consultant both indicated claimant 
 
            could perform his fork lift job, which was lighter duty than 
 
            the job he was performing at the time of his injury, and 
 
            that it would appear that claimant was doing his job 
 
            satisfactorily.  The undersigned can appreciate the fact 
 
            that claimant, who appeared to have been suffering no work 
 
            effects from any prior back condition or injury, would have 
 
            been prevented from obtaining work if there had been any 
 
            indication he had had prior back problems.  Defendant 
 
            employer gave him a physical and he passed it which seemed 
 
            to affirm the fact that claimant was able to do the job and 
 
            evidence shows he was doing the job until his November 11, 
 
            1988 injury.  Employers often take the position that they 
 
            are not hesitant in hiring people with prior back conditions 
 
            and that that is not material in their hiring decision.  
 
            They often argue this point to defend their positions and 
 
            yet in this case at bar, there is no evidence that 
 
            claimant's pre-November 1988 back conditions were 
 
            interfering with his work and that upon claimant being 
 
            injured and defendant employer having knowledge of his prior 
 
            back condition, they fired him.  Although the undersigned is 
 
            not finding claimant as dishonest, the fact is that a 
 
            dishonest person can be injured.  The undersigned finds that 
 
            defendant employer fired claimant due to his condition 
 
            resulting from the November 11, 1988 injury and that their 
 
            later discovery of the fact that he lied on his report was a 
 
            subterfuge.  It would appear that defendant employer's 
 
            physical examination and claimant's passing of the physical 
 
            would support claimant's reasoning that he did not feel that 
 
            his prior back conditions should affect him in getting and 
 
            performing the job when those prior conditions were not 
 
            affecting his ability to work or perform the job that he was 
 
            seeking.  Claimant's falsification on his application was 
 

 
            
 
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            not the sole cause for defendants to refuse to continue 
 
            claimant in its employment, under the total circumstances of 
 
            this case.  Claimant has incurred a loss of income and a 
 
            loss of earning capacity as a result of his November 11, 
 
            1988 injury.
 
            
 
                 The undersigned questions the extent of claimant's 
 
            motivation in trying to seek work.  Although it is no excuse 
 
            that claimant's wife at the time objected to him working 
 
            through a female vocational consultant, the fact is that the 
 
            vocational rehabilitation service assigned him to a male 
 
            consultant.  It is understandable that claimant's motivation 
 
            has been severely hampered or dampened by his injury and the 
 
            circumstances surrounding this case.  The rehabilitation 
 
            consultant acknowledges that claimant could not return to 
 
            the job he had on November 11, 1988, nor could he perform 
 
            his painting jobs that he had performed during his earlier 
 
            work history.  Although claimant has a mechanical aptitude, 
 
            it is obvious from the evidence that he picked this up by 
 
            watching others and that with the modern day machinery and 
 
            vehicles and the computerization, claimant would be hampered 
 
            by a lack of education in that area even though he possibly 
 
            could learn it.  A letter from the manager of the heavy duty 
 
            tire building department indicates the manager believed that 
 
            claimant could make a meaningful contribution to the commer
 
            cial tire business and add value to Firestone's products.  
 
            This is evidenced by the October 20, 1988 letter which is an 
 
            interdepartment correspondence (Jt. Ex. 6, p. 13).
 
            
 
                 Claimant is 37 years old but has limited skills and 
 
            permanent restrictions and his work history has basically 
 
            been involving labor and heavier duty work.  Taking into 
 
            consideration claimant's age, education, work experience 
 
            prior to the injury, transferable skills, his medical 
 
            history prior to the November 11, 1988 injury and subsequent 
 
            thereto, claimant's preexisting condition, the nature and 
 
            location of his injury, the extent of his healing period, 
 
            the functional impairment, the employer's refusal to 
 
            continue claimant's employment and claimant's inability to 
 
            find other suitable work after making some bona fide effort, 
 
            the undersigned finds claimant has a 30 percent industrial 
 
            disability and that this disability was causally connected 
 
            to his November 11, 1988 injury.
 
            
 
                 The remaining issue is whether claimant is entitled to 
 
            have his Mercy Hospital bill and Dr. Jones' bill paid.  It 
 
            appears the bills in dispute are the Mercy Hospital bill set 
 
            out in Joint Exhibit 2, pages 1 through 7, and Dr. Jones' 
 
            bill that has not been received yet but is anticipated to be 
 
            in the amount of $144.  It would appear that claimant was 
 
            denied any further care for any permanency regarding his 
 
            back injury of November 11, 1988, and that at the time these 
 
            bills were incurred they were denying any further liability.  
 
            They were, in fact, denying that Dr. Carlstrom's July 1989 
 
            surgery was causally connected.  The undersigned finds that 
 
            claimant was entitled to obtain this medical to help solve 
 
            his problems and although there is not any evidence that he 
 

 
            
 
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            was helped, there is likewise no evidence that this care 
 
            didn't help to determine if claimant could get additional 
 
            recovery from his complaints and condition caused by the 
 
            November 11, 1988 injury.  Dr. Carlstrom was sent to Saudia 
 
            Arabia and defendants should have made another doctor 
 
            available.  The undersigned finds that those bills should be 
 
            paid.  The undersigned further finds that all other bills 
 
            resulting from claimant's injuries that are subject to this 
 
            decision shall be paid by defendants, if not already paid.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injuries of November 
 
            11, 1988 and May 6, 1988 are 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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an em
 
            ployer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment. 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; 
 
            Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz v. 
 
            Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. 
 
            Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, educa.
 
            
 
                 Claimant's May 6, 1988 injury did not result in an 
 
            injury to his shoulders or elbow, nor did it result in a 
 
            body as a whole injury.
 
            
 
                 Claimant is entitled to 5.70 weeks of permanent partial 
 
            disability benefits as a result of his May 6, 1988 injury.
 
            
 
                 Claimant's September 5, 1988 alleged injury (file No. 
 
            923688) is, in fact, the same and is encompassed in 
 
            claimant's May 6, 1988 injury represented by file No. 
 
            936510.  Claimant recovers nothing as a result of any 
 
            separate September 5, 1988 injury.
 
            
 
                 Regarding claimant's November 11, 1988 injury (file No. 
 
            912957), it is concluded that claimant incurred a 
 
            work-related permanent impairment to his body as a whole as 
 
            a result of a work-related November 11, 1988 injury to his 
 
            low back involving the L5-S1 disc.
 
            
 
                 Claimant had a preexisting injury to his low back in 
 
            the area of L5-S1 that resulted in a preexisting permanent 
 
            impairment but that said preexisting injury was 
 
            substantially and materially aggravated and lighted up by 
 
            claimant's November 11, 1988 injury, thereby resulting in a 
 
            greater impairment than was originally existing prior to 
 
            that November 11, 1988 injury.
 
            
 
                 Claimant incurred a July 21, 1989 laminectomy L5-S1 per
 
            formed by Dr. Carlstrom, which surgery was the result of and 
 
            caused by claimant's November 11, 1988 work-related injury.
 
            
 
                 Claimant was working without problems affecting his job 
 
            prior to his November 11, 1988 injury.
 
            
 
                 Claimant was fired from his employment with defendant 
 
            employer on October 24, 1989, for the alleged reason that 
 
            claimant falsified his work application with defendant 
 
            employer. The major reason for claimant's termination was 
 
            the fact that claimant incurred an injury on November 11, 
 
            1988, which resulted in claimant being unable to perform his 
 
            prior work duties and required a lighter duty position with 
 
            defendant employer, which position claimant was performing 
 
            in a reasonable and satisfactory manner until he was fired 
 
            on October 24, 1989.
 
            
 
                 Claimant has work restrictions limiting him to certain 
 
            weight and other restrictions as a result of his November 
 
            11, 1988 work injury.
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Claimant has incurred a loss of income and loss of 
 
            earning capacity as a result of his November 11, 1988 
 
            injury.
 
            
 
                 Defendants have proved that there should be an 
 
            apportionment of disability between claimant's preexisting 
 
            condition and the 12 percent permanent impairment found by 
 
            Dr. Carlstrom.   Eight percent is the result of claimant's 
 
            November 11, 1988 injury, and that the other 4 percent was 
 
            the result of a preexisting condition.
 
            
 
                 Claimant is entitled to have his medical bills incurred 
 
            with Mercy Hospital and Dr. Jones paid by defendants, as 
 
            defendants were denying further medical care to claimant and 
 
            denied that there was any permanent disability or 
 
            impairment, and that claimant had a right to seek other 
 
            medical help to alleviate his problems.
 
            
 
                 Claimant incurred a work-related 30 percent industrial 
 
            disability as a result of his November 11, 1988 injury after 
 
            taking into consideration claimant's preexisting condition 
 
            and deducting its effect to arrive at claimant's net 
 
            industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That in regards to the May 6, 1988 injury (file No. 
 
            936510), defendants shall pay unto claimant five point 
 
            seventy (5.70) weeks of permanent partial disability 
 
            benefits at the stipulated weekly rate of two hundred 
 
            thirty-six and 83/100 dollars ($236.83), beginning on the 
 
            stipulated date of September 13, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 Regarding the November 11, 1988 injury (file No. 
 
            912957), defendants shall pay unto claimant one hundred 
 
            fifty (150) weeks of permanent partial disability benefits 
 
            at the stipulated rate of two hundred twenty-eight and 
 
            16/100 dollars ($228.16) per week, beginning on the 
 
            stipulated date of September 13, 1989.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay claimant's Mercy Hospital 
 
            bill and Dr. Jones' bill.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That as to the September 5, 1988 injury (file No. 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            923668), claimant takes nothing from that proceeding.
 
            
 
                 That defendants shall pay the costs of these actions, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity reports upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            W Des Moines IA 50265
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
            Mr Jeff M Margolin
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-2206; 5-1108; 5-2503
 
                      5-1803.1; 5-1804; 5-1806
 
                      1807
 
                      Filed May 6, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FLOYD J. ELLIOTT,             :
 
                                          :
 
                 Claimant,                :     File Nos. 923668
 
                                          :               936510
 
            vs.                           :               912957
 
                                          :
 
            FIRESTONE TIRE & RUBBER CO.,  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Found claimant entitled to 5.70 weeks of permanent partial 
 
            disability benefits as a result of a work injury on May 6, 
 
            1988 to his left hand resulting in a 3 percent permanent 
 
            impairment.  This injury found not to involve claimant's 
 
            body as a whole.
 
            Claimant took nothing from a September 5, 1988 injury.  This 
 
            alleged injury actually was encompassed in claimant's May 6, 
 
            1988 work injury.
 
            As to a November 11, 1988 injury:
 
            
 
            5-1804
 
            Claimant awarded 30 percent industrial disability.
 
            
 
            5-1108
 
            Found claimant incurred a work injury which resulted in 
 
            claimant incurring a L5-S1 laminectomy, restrictions and an 
 
            additional 8 percent permanent impairment to claimant's 
 
            preexisting 4 percent permanent back impairment.
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            1807
 
            Claimant was fired from his job eleven months after his 
 
            November 11, 1988 work injury.  Defendants contend it was 
 
            because of his work application which was falsely filled 
 
            out.  Deputy found that this was not the sole reason for 
 
            firing claimant and that claimant's work injury was the 
 
            major reason claimant was fired.
 
            
 
            5-2502
 
            Claimant allowed additional medical defendants refused to 
 
            pay.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                   
 
         ELEANOR CARON, 
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                File No. 923669
 
         FOURTH JUDICIAL DISTRICT,     
 
                                                 A P P E A L
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         STATE OF IOWA, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 7, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of July, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  9998
 
                                                  Filed July 30, 1992
 
                                                  Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ELEANOR CARON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 923669
 
            FOURTH JUDICIAL DISTRICT,     
 
                                                  A P P E A L
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            7, 1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY LEE FORD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            KLEIN MANUFACTURING CO.,      :
 
                                          :
 
                 Employer,                :       File Nos.  923689
 
                                          :                  891406
 
            and                           :
 
                                          :     A R B I T R A T I O N
 
            U. S. F. & G.,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carriers,      :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Randy 
 
            Ford as a result of an alleged injury to his right shoulder 
 
            which occurred on June 20, 1988 (Agency File No. 891406) and 
 
            an alleged injury to his left shoulder which occurred on 
 
            February 16, 1989 (Agency File No. 923689).  The cases were 
 
            consolidated on May 21, 1990.  A hearing was held on 
 
            December 18, 1990 and the case was fully submitted at the 
 
            close of the hearing.  Leave was granted to allow the 
 
            parties to file briefs.
 
            
 
                 The record consists of testimony of claimant; Gary 
 
            Bauer; and Jeannette Mullahey; joint exhibits A, B, C, and 
 
            D; and, claimant's exhibits 1 and 2.
 
            
 
                 Claimant offered exhibits 3 and 4.  Defendant Second 
 
            Injury Fund of Iowa raised an objection to the admission of 
 
            the evidence based on untimeliness of service under 343 IAC 
 
            4.17.  The objection was sustained, and claimant made an 
 
            offer of proof with respect to the exhibits 3 and 4.
 
            
 
                                      issues
 
            
 
                 In accordance with the prehearing reports submitted, 
 
            the following issues were presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury to his left 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shoulder on February 16, 1989 which arose out of and in the 
 
            course of his employment;
 
            
 
                 2.  Whether the alleged injury is the cause of any 
 
            temporary or permanent disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits;
 
            
 
                 4.  Whether claimant is entitled to any permanent 
 
            partial disability for the left shoulder as a result of the 
 
            alleged February 16, 1989 injury;
 
            
 
                 5.  Whether claimant's injury is scheduled or 
 
            unscheduled; and,
 
            
 
                 6.  Whether the Second Injury Fund is responsible for 
 
            payment of benefits to which claimant may be entitled.
 
            
 
                 In addition, defendant employer raised the following 
 
            affirmative defenses:
 
            
 
                 1.  Whether claimant gave proper notice to the employer 
 
            of the left shoulder injury pursuant to Iowa Code section 
 
            85.25; and,
 
            
 
                 2.  Whether claimant mitigated his damages.
 
            
 
                 It is noted that defendant employer, Klein 
 
            Manufacturing, was insured by Great American at the time of 
 
            the June 20, 1988 injury to claimant's right shoulder.  The 
 
            prehearing report with respect to the claim against this 
 
            insurance company shows no disputed issues among the parties 
 
            for the June 20, 1988 injury.  (Agency file no. 891406).
 
            findings of fact
 
            
 
                 Claimant is a 34-year-old man, married with two 
 
            children.  He completed the eleventh grade in high school, 
 
            worked for a few months as a dishwasher and gas station 
 
            attendant, and then entered the U.S. Army.  Claimant 
 
            finished high school while in the Army, and received an 
 
            honorable discharge in 1977.  He received special training 
 
            in field communications, and worked with land and cable 
 
            telephone lines.
 
            
 
                 Claimant has a varied employment history post-service, 
 
            including positions on assembly lines; as a grid caster; 
 
            with the Parks and Forestry Department of the city of 
 
            Burlington; as an electrician; and, as a truck driver.
 
            
 
                 Claimant began working for defendant employer in 1987.  
 
            In June of 1988, claimant held a production job and made 
 
            water tanks by rolling sheet metal and riveting the side 
 
            seams to form a cylinder.  This job required extensive heavy 
 
            lifting, bending, and stooping.
 
            
 
                 On June 28, 1988, claimant was lifting the bottoms of 
 
            eight foot round water tanks overhead to insert them into 
 
            the tank forms.  He was using his right arm, and during one 
 
            particular lift felt immediate, severe pain in his right 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shoulder.  He finished work, returned to work the following 
 
            day, and reported the injury to either the personnel 
 
            department or the plant manager.
 
            
 
                 Claimant was sent to Alice Hillyer, D.C., a 
 
            chiropractor, who treated claimant from March 1988 to July 
 
            1988.
 
            
 
                 Claimant also treated with Gary Mansheim, M.D., for 
 
            shoulder problems from June of 1987 through July of 1989.  
 
            He was taken off work and began physical therapy on July 21, 
 
            1988.  Dr. Mansheim's notes indicate that claimant sustained 
 
            a shoulder strain, bicep tendonitis, and a possible rotator 
 
            cuff tear (Joint Exhibit A).  Claimant was referred to Jerry 
 
            Jochims, M.D., an orthopaedic specialist on September 1, 
 
            1988.
 
            
 
                 Upon review of x-rays of the right shoulder, which Dr. 
 
            Jochims found to be "entirely within normal limits", 
 
            claimant underwent injections of the subacromial bursa.  
 
            Subsequent rotator cuff studies taken September 15, 1988, 
 
            were deemed "normal".  (Jt. Ex. A)  During this time, 
 
            claimant was on light duty work.
 
            
 
                 During his tenure as claimant's treating physician, Dr. 
 
            Jochims performed a variety of tests to determine the nature 
 
            and extent of claimant's physical problems:  nerve 
 
            conduction studies and an EMG were performed (normal); an 
 
            ultrasound and an arthogram (normal); x-rays were taken 
 
            (normal).
 
            
 
                 Claimant continued to see Dr. Jochim in September, 
 
            October, November and December of 1988.
 
            
 
                 On February 13, 1989, claimant met with Koert Smith, 
 
            M.D., an associate of Dr. Jochims, and complained of 
 
            increased pain in the shoulder.  Dr. Jochims injected the 
 
            right coracoacromial ligament on February 22, 1989.  In 
 
            March of 1989, claimant again suffered a flare-up of pain in 
 
            the right elbow and shoulder, and was referred to Keith 
 
            Riggins, M.D., for a second opinion.
 
            
 
                 Dr. Riggins made the following assessment on March 27, 
 
            1989:
 
            
 
                 Mr. Ford returns having accomplished magnetic 
 
                 resonance imaging which is reported as 
 
                 demonstrating the presence of a significant sized 
 
                 Hillsachs lesion in the posterior aspect of the 
 
                 humeral head.
 
            
 
                 At this time it is my impression that Mr. Ford 
 
                 most likely sustained a dislocation of the humeral 
 
                 head while his arm was in the erect position which 
 
                 resulted in a Hillsachs lesion of the humeral head 
 
                 and leaves the shoulder inherently unstable.  He 
 
                 is scheduled for a bonescan examination of the 
 
                 right shoulder with a return visit on the 29th of 
 
                 March.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Jt. Ex. A)
 
            
 
                 Claimant underwent a diagnostic arthroscopy of the 
 
            right shoulder, wherein Dr. Riggins performed an excision of 
 
            the glenoid labrum tear on March 30, 1989.
 
            
 
                 Claimant remained off work until May 26, 1989:
 
            
 
                 He is now essentially 8 weeks post diagnostic 
 
                 arthroscopy of the right shoulder with findings of 
 
                 Hill-Sacs lesion of the humeral head and glenoid 
 
                 labrum tear.  He continues to perform 
 
                 subscapularis strengthening exercise program 
 
                 without visits to physical therapy.  He continues 
 
                 to note a painful click on forward elevation of 
 
                 the extremity which he states is improved over its 
 
                 prior status.
 
            
 
                 Examination of the right shoulder demonstrates 
 
                 range of motion to be full and complete.  The 
 
                 humeral head can be palpated to slip within the 
 
                 glenoid on forward elevation of the extremity 
 
                 without flank dislocation.
 
            
 
                    ....
 
            
 
                 Recommendation:  I do not believe any further 
 
                 surgical treatment would be of benefit to Mr. 
 
                 Ford's shoulder.  He is advised to continue 
 
                 subscapularis strengthening program on a permanent 
 
                 basis.  He is considered unable to engage in 
 
                 occupational activities which require function 
 
                 with the arms extended forward or overhead but is 
 
                 essentially unlimited in terms of activities 
 
                 performed with the arms essentially at the side.  
 
                 No return visits are required.
 
            
 
            (Jt. Ex. A)
 
            
 
                 On June 5, 1989, Dr. Riggins restricted claimant's work 
 
            activities:
 
            
 
                 Mr. Ford should not engage in activities which 
 
                 require repetitive extension of the arms forward 
 
                 or above an angle of eighty degrees with the 
 
                 horizontal on the left.  He is under no particular 
 
                 limitation so far as utilization of the extremity 
 
                 at waist level is concerned.
 
            
 
            (Jt. Ex. A)
 
            
 
                 Dr. Riggins also gave claimant a 12 percent functional 
 
            impairment to the upper extremity due to the limitation of 
 
            active motion rather than passive motion in the shoulder 
 
            joint.  (Jt. Ex. A).
 
            
 
                 Claimant was released to return to work.  In September 
 
            of 1989, claimant returned to Dr. Riggins:
 
            
 
                 Problem:  Pain left shoulder.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Subjective history:  The patient returns on the 
 
                 20th of September relating painful snapping of the 
 
                 left shoulder which he states has been present 
 
                 since February 1989 and attributes to lifting 
 
                 heavy objects overhead in the course of his 
 
                 employment.  He had previous similar problems in 
 
                 the right shoulder which was diagnosed to be 
 
                 secondary to chronic sublaxation and presence of 
 
                 small Hill Sachs lesion.  This has been unimproved 
 
                 following arthroscopic debridement of the glenoid 
 
                 labrum tear.
 
            
 
                 Examination of the left shoulder demonstrates 
 
                 repeated inferior sublaxation of the humeral head 
 
                 on overhead elevation of the extremity.
 
            
 
                 X-ray examination of the shoulder including 
 
                 subacromial and axillary views demonstrates 
 
                 anterior subluxation of the humeral head on 
 
                 axillary view.
 
            
 
                 Diagnosis:  Recurrent dislocation shoulder 813.01.
 
            
 
                 Recommendation:  The patient is scheduled for 
 
                 magnetic reasonance imaging of the Lt shoulder to 
 
                 evaluate for possible Hill Sachs lesion with 
 
                 return visit to follow.
 
            
 
            (Jt. Ex. A)
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Dr. Riggins also provided an impairment rating to claimant's 
 
            left shoulder:
 
            
 
                 Randy Ford has been previously interviewed and 
 
                 evaluated regarding his left shoulder.  Impairment 
 
                 when rated in accordance with the Guide to 
 
                 Evaluation to Impairment yields zero percent (0%) 
 
                 impairment in view of presence of full range of 
 
                 motion.  This is considered inappropriate in that 
 
                 it fails to take into account the compromise of 
 
                 utilization of the extremity imposed by 
 
                 sublaxation with elevation of the extremity.  
 
                 Permanent partial impairment is rated at twelve 
 
                 percent (12%) of the upper extremity.  This value 
 
                 converts to seven percent (7%) impairment of the 
 
                 whole person.
 
            
 
            (Jt. Ex. A)
 
            
 
                           applicable law and analysis
 
            
 
                 The first issue to be resolved is whether claimant gave 
 
            the employer sufficient notice of the alleged injury to his 
 
            left shoulder.
 
            
 
                 Iowa Code section 85.23 provides the statutory 
 
            requirements necessary for proper notice of a possible work 
 
            related injury:
 
            
 
                    Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 The ninety day time period for giving notice to the 
 
            employer does not begin to run until the worker should know 
 
            that his injury is "both serious and work connected."  
 
            Robinson v. Department of Transportation, 296 N.W.2d 809, 
 
            812 (Iowa 1980).
 
            
 
                 Recognizing the "seriousness" requirement of the notice 
 
            of the injury provides the worker appropriate relief from 
 
            the rigid ninety day rule in the case where a worker thinks 
 
            the injury is minor and will heal in a few days, but later 
 
            becomes compensable.
 
            
 
                 The burden of proof rests with the employer to show 
 
            that the employee failed to give sufficient notice of a 
 
            possible injury.  Claimant testified that after treatment of 
 
            his right shoulder, he began to use more extensively his 
 
            left arm and shoulder.  Specifically, between June of 1988 
 
            and March of 1989, claimant states he favored his right 
 
            shoulder, and as a consequence strained his left shoulder.  
 
            Claimant stated that during a meeting with Jeanette Mullahey 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (personnel administrator) and Gary Bauer (plant manager), he 
 
            told them he was straining his left shoulder, but claimed he 
 
            did not know it was work related at that time.  Dr. 
 
            Mansheim's office notes indicate that the first complaint of 
 
            left shoulder strain came on July 26, 1989.
 
            
 
                 Both Jeanette Mullahey and Gary Bauer testified at the 
 
            hearing.  Mr. Bauer indicated that at no time did claimant 
 
            make any statements regarding his left shoulder.  He stated 
 
            that the general procedure to report any possible 
 
            work-related injury was to send the employee to Ms. Mullahey 
 
            so that a report of first injury could be filled out and 
 
            sent to the insurance company.  He stated he was more likely 
 
            to make a report of a complaint if the employee has already 
 
            incurred a work related injury.  However, he also admitted 
 
            that he does not consider strains work related injuries.
 
            
 
                 Ms. Mullahey stated that she had had many conversations 
 
            with claimant, and did not become aware of a left shoulder 
 
            injury until July of 1989.  Apparently claimant had notified 
 
            Ms. Mullahey regarding a prior work-related injury, and 
 
            indicated that his left shoulder was injured as a result of 
 
            favoring his right shoulder.  At that time, claimant told 
 
            Ms. Mullahey that his left shoulder began to hurt sometime 
 
            between January and March of 1989.
 
            
 
                 During a second telephone conversation with the 
 
            claimant, which occurred on July 7, 1989, which was after 
 
            the first report of injury was filed, Ms. Mullahey testified 
 
            that claimant indicated the accident to his left shoulder 
 
            happened on February 16, 1989.
 
            
 
                 Neither the plant manager (Gary Bauer) nor the 
 
            personnel administrator (Jeanette Mullahey) who both 
 
            testified at the hearing, could recall that claimant told 
 
            them that his left shoulder hurt.  Formal reporting 
 
            procedures had been followed in all of claimant's previous 
 
            workers' compensation claims with the company.  The 
 
            undersigned finds that if the company had been properly 
 
            notified of claimant's left shoulder problems in February of 
 
            1989, a report would have been filled out.
 
            
 
                 Although denial of a claim based on insufficient notice 
 
            of an injury to the employer is rare, the undersigned finds 
 
            that the employer sustained its burden of proof by showing 
 
            that claimant did not give proper notice of the injury to 
 
            his left shoulder.
 
            
 
                 Most persuasive is claimant's own admission that he 
 
            knew the left shoulder began to hurt during February due to 
 
            his actions of favoring the right shoulder and thereby 
 
            putting more stress on the left shoulder.  At that time he 
 
            knew, or should have known, that the left shoulder was a 
 
            potentially serious injury because he had the same symptoms 
 
            in the left shoulder as he has had in his right shoulder, 
 
            which had required extensive medical treatment.
 
            
 
                 Furthermore, claimant's position is that he told the 
 
            employer that he injured his left shoulder sometime between 
 
            January and March of 1989.  Yet, claimant was not treated by 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            a doctor for the left shoulder until July of 1989.  Claimant 
 
            had prior work-related injuries which he pursued vigorously, 
 
            and he appeared to be the type of person who would demand 
 
            medical care from the employer if the employer did not 
 
            immediately respond to his needs.
 
            
 
                 And, it is documented in Dr. Mansheim's medical records 
 
            that claimant first knew of the work-related condition in 
 
            February of 1989.  (Jt. Ex. A).
 
            
 
                 Dr. Riggins' notes dated September 20, 1989, state that 
 
            claimant reported a painful snapping of the left shoulder 
 
            which had been present since February of 1989.  (Jt. Ex. A).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing further from these 
 
            proceedings.
 
            
 
                 That costs are assessed to the claimant.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William Bauer
 
            Attorney at Law
 
            100 Valley Street
 
            PO Box 517
 
            Burlington Iowa 52601
 
            
 
            Mr Jon Swanson
 
            Attorney at Law
 
            900 Des Moines Bldg
 
            Des Moines Iowa 50309
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr Mark D Cleve
 
            Mr John D Stonebraker
 
            Attorneys at Law
 
            PO Box 2746
 
            Davenport Iowa 52809
 
            
 
            Mr Robert D Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1402.50
 
                      Filed April 2, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RANDY LEE FORD,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :
 
            KLEIN MANUFACTURING CO., :
 
                      :
 
                 Employer, :       File Nos. 923689
 
                      :                 891406
 
            and       :
 
                      :     A R B I T R A T I O N
 
            U. S. F. & G., :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            GREAT AMERICAN INSURANCE :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carriers, :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1402.50
 
            Claimant sustained a right shoulder injury.  He continued to 
 
            work, and strained his left shoulder.  Claimant testified he 
 
            told his supervisor that his left shoulder hurt.  However, 
 
            the greater weight of the evidence shows that the employer 
 
            did not have any notice of the injury until claimant filed 
 
            his petition, almost 6 months after the alleged injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NEIL W. RICHARDSON,           :
 
                                          :       File No. 923699
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            HAROLD KRAUSE,                :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Neil 
 
            Richardson, claimant, against Harold Krause, employer, 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on September 5, 1989.  It is noted that 
 
            the caption, as it appears in the hearing assignment order, 
 
            was changed at the time of hearing to properly reflect the 
 
            spelling of defendant's name and to drop Grinnel Mutual as a 
 
            party.  On February 25, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits only from September 5, 1989 through June 3, 
 
            1991.  Defendant agrees that he was not working from 
 
            September 5, 1989 through January 1990 and from January 23, 
 
            1991 through June 3, 1991.  Claimant agrees he is not enti
 
            tled to such benefits from March 1990 through January 22, 
 
            1991.
 
            
 
                 3. At the time of injury, claimant's gross rate of 
 
            weekly compensation was $288.00.  He was married and enti
 
            tled to four exemptions.  This establishes a weekly rate of 
 
            compensation of $197.69, according to the Industrial 
 
            Commissioner's published rate booklet for FY 90. 
 
            
 
                 4.  The charges in the medical bills submitted by 
 
            claimant at the hearing are fair and reasonable.
 
            
 
                                      ISSUES
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to temporary 
 
            total disability benefits; and,
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                 The issue of the causal connection of the injury to 
 
            permanency or the extent of claimant's entitlement to perma
 
            nent disability benefits was bifurcated from this proceeding 
 
            and shall be heard at a later date.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant placed claimant's credibility at issue as to the 
 
            occurrence and extent of the injury and disability.  From 
 
            his demeanor while testifying, claimant is credible.
 
            
 
                 Claimant worked for Harold Krause as a farmhand from 
 
            August 1989 until the injury herein.  When he was hired, 
 
            claimant replaced a former farmhand.  Krause's annual expen
 
            diture for farmhands well exceeded $2,500 annually.  
 
            Claimant received a salary of $1,200 per month plus his fam
 
            ily's use of a farmhouse located on Krause's farm.  
 
            Claimant's duties consisted solely of farm labor type work.
 
            
 
                 On or about September 5, 1989, claimant injured his 
 
            right knee while assisting Krause in repairing the well 
 
            located at the farmhouse used by claimant's family.  There 
 
            was no dispute that claimant was performing work at the time 
 
            within the scope of his employment.  Although Krause testi
 
            fied that he did not actually observe claimant injure him
 
            self, he stated that he did not know what claimant was doing 
 
            immediately prior to the time claimant began to complain of 
 
            an injury.  Claimant was credible and stated that he twisted 
 
            his right knee while using a pipe wrench on a well pipe.  
 
            Krause admitted that claimant appeared to have injured his 
 
            knee at the time and that claimant left work that day to 
 
            seek medical attention.
 
            
 
                 Claimant first sought medical attention for right knee 
 
            pain from Yotin Keonin, M.D., a general surgeon.  Dr. Keonin 
 
            diagnosed a meniscus tear in the knee and ordered claimant 
 
            off work and to use crutches.  Claimant then underwent an 
 
            arthroscopy surgery on September 25, 1989, in which a por
 
            tion of the meniscus was removed.  After a few weeks, 
 
            claimant became impatient with his recovery and sought 
 
            another opinion from an orthopedic surgeon, Samir Wahby, 
 
            M.D., in December 1989.  Dr. Wahby performed another ortho
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            scopic surgery with a partial removal of meniscus.  When he 
 
            again became dissatisfied with recovery from this second 
 
            surgery, claimant returned to Dr. Keonin.  On January 14, 
 
            1990, claimant reported to Dr. Keonin that he had a new job 
 
            and with increased activity of his knee including an inci
 
            dent in which he stepped into a hole, he experienced an 
 
            increase in right knee pain.  Dr. Keonin prescribed physical 
 
            therapy at that time with no vigorous activity.  Dr. Keonin 
 
            stated in his report of February 1990 that claimant was 
 
            still healing from the surgery.  Claimant stated that he 
 
            remained off work until mid-March 1990 following the second 
 
            surgery.  However, he appeared confused on this matter as he 
 
            later admitted that he earlier testified that he moved out 
 
            of Krause's house in January 1990 to accept another job .
 
            
 
                 It is found that claimant returned to work following 
 
            the second surgery on January 14, 1990, based upon the 
 
            office note of Dr. Keonin.  It was stipulated that claimant 
 
            was not entitled to temporary total disability benefits 
 
            through January 22, 1991.  During 1990, claimant was appar
 
            ently working but had not fully healed from the injury.  
 
            During this time claimant received treatment from Dr. Keonin 
 
            and later from John Albright, M.D., an orthopedic surgeon at 
 
            the University of Iowa Hospitals and Clinics.  Both Dr. 
 
            Keonin and Dr. Wahby causally relate their treatment of 
 
            claimant's right knee to his injury on September 5, 1989. 
 
            
 
                 Beginning on January 23, 1991, claimant was again off 
 
            work receiving treatment from Dr. Albright who diagnosed 
 
            another problem, plica syndrome.  At this time, claimant 
 
            underwent a third surgery called a plicectomy.  Although Dr. 
 
            Albright stated that such a syndrome is not a result of 
 
            injury, he opined that the injury exacerbated and inflamed 
 
            the plica enough to cause flare-ups and his knee symptoms 
 
            necessitating this additional surgery.  Claimant was 
 
            released to return to work on March 1, 1991, following this 
 
            surgery.  Claimant states that his right knee is still 
 
            giving him problems especially at night.  He states that he 
 
            is still seeing Dr. Albright.  On July 22, 1991, claimant 
 
            began working full-time for a local John Deere dealership.  
 
            On November 1, 1991, Dr. Albright stated that he could not 
 
            rate claimant's permanency as claimant had not yet reach 
 
            maximum healing.  This is the last report from Dr. Albright 
 
            in the record.  It is found that claimant has not reached 
 
            maximum healing at this time but returned to work on July 
 
            22, 1991.
 
            
 
                 Claimant has had prior injuries and accidents.  In 1988 
 
            he injured the meniscus of the left knee and received 
 
            arthroscopic surgery.  He recovered from this injury.  In 
 
            1982, he was injured while working with a skid loader.  
 
            There is some mention of a right leg complaint after this 
 
            incident.  Primarily, the injuries involved other areas of 
 
            the body.  Claimant states he recovered from this injury.  
 
            It is found that he did.  Defendant also points to a physi
 
            cal therapy note indicated that claimant had his own 
 
            crutches prior to the injury.  This matter was cleared up by 
 
            claimant's wife at hearing.  These crutches were hers from 
 
            an injury she had suffered.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The causal connection views of Drs. Keonin, Wahby and 
 
            Albright are uncontroverted.  It is found that their treat
 
            ment is the result of the work injury of September 5, 1989.  
 
            Given their uncontroverted reports indicating the need for 
 
            treatment, the treatment is found reasonable as well.
 
            
 
                 With reference to the requested medical mileage 
 
            expenses, it is found from claimant's uncontroverted testi
 
            mony that the listing of medical services provided in 
 
            exhibit 17 are causally connected to the injury with the 
 
            exception of the dental appointments marked by a red check 
 
            mark on the exhibit.  Each date of service required claimant 
 
            to travel.  It is found that a round trip for claimant to 
 
            travel to Iowa City is 550 miles; to Lake City is 45 miles, 
 
            and to Dr. Wahby is 45 miles.  The undersigned leaves to 
 
            counsel the chore of adding up the specific total of miles 
 
            which should have been done prior to hearing according to 
 
            the hearing assignment order.
 
            
 
                 Finally, despite his return to work, it is found that 
 
            claimant has not as yet reached maximum healing and still 
 
            requires treatment. 
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I. Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury aris
 
            ing out of and in the course of employment.  The words "out 
 
            of" refer to the cause or source of the injury.  The words 
 
            "in the course of" refer to the time and place and circum
 
            stances of the injury. see generally, Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a per
 
            sonal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                  II.  Claimant is entitled to weekly benefits for tem
 
            porary total disability or healing period benefits if perma
 
            nency is subsequently established under Iowa Code section 
 
            85.33 or 85.34 from the date of injury until claimant 
 
            returns to work; until claimant is medically capable of 
 
            returning to substantially similar work to the work he was 
 
            performing at the time of injury; or, until it is indicated 
 
            that significant improvement from the injury is not antici
 
            pated, whichever occurs first.  Given the findings as to 
 
            when claimant was off work, these benefits will be awarded 
 
            accordingly.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 In the case at bar, the requested expenses were found 
 
            causally connected and constitute reasonable treatment of 
 
            the injury.  It was stipulated that the charges were reason
 
            able.  The requested expenses will be awarded.  Claimant is 
 
            also entitled to $.21 per mile for medical mileage found 
 
            causally related in the findings of fact.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant temporary total 
 
            disability/healing period benefits from September 5, 1989 
 
            through January 14, 1990 and again from January 23, 1991 
 
            through June 3, 1991, at the rate of one hundred 
 
            ninety-seven and 69/l00 dollars ($197.69) per week.
 
            
 
                 2.  Defendant shall pay the requested medical expenses 
 
            listed in the prehearing report including the requested 
 
            mileage at the rate of twenty-one cents ($.21) per mile.  
 
            Claimant shall be reimbursed for any of these expenses paid 
 
            by him.  Otherwise, defendant shall pay the provider 
 
            directly along with any lawful late payment penalties 
 
            imposed upon the account by the provider.
 
            
 
                 3.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 4.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 7.  The matter shall be set back into assignment for 
 
            prehearing and hearing on the extent of permanent disability 
 
            benefits, if any, to which claimant is entitled.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P O Box 455
 
            Spirit Lake, Iowa  51360
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Mr. Willis J. Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P O Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. Russell S. Wunschel
 
            Attorney at Law
 
            805 N Main Street
 
            P O Box 883
 
            Carroll, Iowa  51401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 13, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NEIL W. RICHARDSON,           :
 
                                          :       File No. 923699
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            HAROLD KRAUSE,                :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803 - Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STEPHEN P. MCANDREWS,         :
 
                                          :       File No. 923887
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding for second injury fund benefits 
 
            brought by the claimant, Stephen P. McAndrews, against the 
 
            Second Injury Fund of Iowa concerning an alleged first 
 
            injury of October 15, 1987 and an alleged second injury of 
 
            May 4, 1989.  Claimant's employer S.I.P.C.O. n/k/a Monfort, 
 
            Inc., is not a party to this proceeding.  This matter came 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner at Des Moines, Iowa on August 6, 1992.  The 
 
            first report of injury is on file.  The record consists of 
 
            the testimony of claimant and of joint exhibits 1-26a and 
 
            26b and of defendant's exhibits A, C, and D.
 
            
 
                              STIPULATION AND ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report, and the oral stipulation of the parties 
 
            at time of hearing, the parties have stipulated to the 
 
            following:
 
            
 
                 1.  That claimant received a gross weekly wage of 
 
            $322.00 and was single and entitled to two exemptions at the 
 
            time of his alleged injuries entitling him to a weekly 
 
            compensation rate of $202.32;
 
            
 
                 2.  That claimant did sustain either an occupational 
 
            disease under chapter 85A or an injury arising out of and in 
 
            the course of his employment under chapter 85 on May 4, 
 
            1989;
 
            
 
                 3.  That the commencement date of any permanent 
 
            disability entitlement from any source is February 8, 1990.
 
            
 
                 The parties further stipulated that the employer has 
 
            paid claimant six percent permanent partial disability as 
 
            regards to the right knee injury of October 15, 1987 and 44 
 
            weeks of permanent partial disability with regards to the 
 
            bilateral carpal tunnel conditions of May 4, 1989.  The 
 
            latter payment was made pursuant to section 85.34(2)(s) and 
 
            relates to a ten percent permanent partial disability rating 
 
            as to each arm.
 
            
 
                 The issue remaining to be decided is whether claimant 
 
            is entitled to second injury fund benefits under our Act.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Included in that issue are the questions of whether claimant 
 
            sustained an injury and not an occupational disease;  
 
            whether claimant sustained permanent disability causally 
 
            related to each injury, as whether second injury fund 
 
            benefits are payable where the alleged second injury is to 
 
            two members and not one member only; and whether claimant's 
 
            industrial disability, if any, exceeds the sum of the 
 
            alleged scheduled injuries.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence finds:
 
            
 
                 Claimant is 29 years old and a high school graduate.  
 
            He has taken community college courses in taxidermy, has 
 
            taught community college courses in taxidermy and has 
 
            functioned on a part time basis and had part time self 
 
            employment as a taxidermist.  Claimant's part time 
 
            employment as a taxidermist was subsequent to his Monfort 
 
            employment.  Claimant earned minimum amounts as a 
 
            taxidermist and felt a need to leave that work as it 
 
            produced symptoms bilaterally in his upper extremities.  
 
            Claimant held a variety of positions from his high school 
 
            graduation until his employment with Monfort in April 1987, 
 
            generally in building maintenance.  Claimant has sought work 
 
            in that field since his release from Monfort on May 19, 1989 
 
            and has found no work.  Claimant's first position after 
 
            Monfort was as a clerk and manager of a speciality book 
 
            store.  Claimant earned a gross salary of $275.00 per week 
 
            working approximately a 60 hour week at the book store.  He 
 
            also received a seven percent commission on selected items 
 
            sold.  His commission earnings averaged approximately 
 
            $100.00 per week.  Claimant left his book store position in 
 
            approximately May 1992.  He is now employed as shipping and 
 
            receiving clerk in a manufacturing plant.  Claimant earns 
 
            $5.50 per hour working a 40 hours week.  He does not 
 
            experience physical difficulties doing the work.  He has no 
 
            expectation of a salary increase.
 
            
 
                 Claimant was earning $5.50 per hour when he started 
 
            Monfort in April 1987.  He was earning $8.05 per hour on May 
 
            19, 1989, his last work day at Monfort.  Claimant had 
 
            received $.50 per hour increases on regularly scheduled 
 
            salary reviews.  The top of the wage scale was $9.00 per 
 
            hour.  Claimant testified he would have reached that maximum 
 
            salary at the time of his next evaluation due two weeks 
 
            subsequent to the date of his termination.
 
            
 
                 Claimant initially worked in the Monfort transfer 
 
            department pushing carcasses.  He had a work incident on 
 
            October 15, 1987 when he slipped on a piece of ice in the 
 
            cooler and twisted with his weight on the right leg.  His 
 
            knee popped.  Claimant was examined at Iowa Occupational 
 
            Medicine on that date, apparently by David T. Berg, D.O.  
 
            Office notes of that date indicate that claimant had 
 
            swelling of the right knee as well as decreased range of 
 
            motion in the knee and tenderness along the anterior and 
 
            medial knee border.  The impression was of right knee 
 
            strain.  Claimant was advised to use a knee support and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            crutches.  A right knee x-ray indicated that the right knee 
 
            joint was intact; the patella was located; and that no focal 
 
            bony injury or other abnormality was seen.
 
            
 
                 Claimant was referred to Peter Wirtz, M.D., who 
 
            diagnosed ligamentous strain of the right knee on October 
 
            21, 1987, and recommended a program of movement and strength 
 
            exercises.  On October 30, 1987, Dr. Wirtz released claimant 
 
            to return to work with "some physical limitations initially 
 
            until he regained his full strength...."  On November 2, 
 
            1987, Dr. Wirtz reported that claimant had tolerated his 
 
            work return well albeit with some knee soreness.  Dr. Wirtz 
 
            next saw claimant on March 3, 1988.  Dr. Wirtz then noted 
 
            that claimant continued to have symptoms with [beef] lugging 
 
            and that claimant's knee became wobbly on weight bearing and 
 
            would grind with stair climbing and descending.  Physical 
 
            examination revealed that claimant was tender over the 
 
            patellar tendon and quadriceps tendon.  Claimant had full 
 
            range of motion of the knee; ligaments were intact and there 
 
            was no anterior drawing.  The diagnosis was of muscle 
 
            imbalance with subluxation of the right patella.  Claimant 
 
            was to avoid heavy strenuous lifting and independent weight 
 
            bearing with the right knee as such could precipitate 
 
            further patellar symptoms or a possible need for more 
 
            restrictions or surgery or both.  Dr. Wirtz provided 
 
            claimant with a copy of those restrictions.  Claimant 
 
            periodically presented the restrictions to his Monfort 
 
            supervisors when requested to perform work outside the 
 
            restrictions.  
 
            
 
                 Subsequent to his return to work after his knee 
 
            incident, claimant worked as a carcass ribber.  Claimant 
 
            would hold a six-inch knife in his right hand, stick the 
 
            knife into the carcass between the seventh and eighth rib 
 
            between the saw cut that had already been performed, then 
 
            switch the knife to his left hand and perform the same 
 
            procedure on the left side.  Approximately 720 half 
 
            carcasses were cut an hour.  Claimant worked an 8-10 hour 
 
            day usually during a six day week.  Claimant performed this 
 
            job for his last ten months at Monfort.  Claimant 
 
            experienced upper extremity and hand symptoms with pain in 
 
            the hands, elbow and shoulders from early on with symptoms 
 
            progressing in early 1989 to the point where claimant had 
 
            numbness which made gripping the knife very difficult.  
 
            Despite claimant's repeated requests for a doctor's 
 
            referral, the company did not permit claimant to see an 
 
            authorized physician until subsequent to his May 19, 1989 
 
            termination.  Claimant was seen at Iowa Occupational 
 
            Medicine apparently by James Blessman, M.D., on that date.  
 
            Claimant then had complaints of bilateral, almost identical, 
 
            upper extremity pain.  The impression was tenderness 
 
            possibly merging into carpal tunnel.  EMG studies of June 9, 
 
            1989, confirmed active carpal tunnel syndrome.  Claimant was 
 
            referred to Dr. Wirtz who saw him on August 17, 1989.  Dr. 
 
            Wirtz then diagnosed bilateral carpal tunnel syndrome and 
 
            bilateral deQuervain's disease.  Dr. Wirtz performed left 
 
            carpal tunnel release and a left deQuervain's release on 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            September 18, 1989.  He performed a right carpal tunnel and 
 
            right deQuervain's release on December 4, 1989.
 
            
 
                 Dr. Wirtz's office notes from August 17, 1989 through 
 
            December 6, 1991 contained no discussion of claimant's right 
 
            knee condition.  On December 8, 1990, Dr. Wirtz noted that 
 
            claimant had continued weakness and sensory deficit 
 
            secondary to his carpal tunnel syndrome and assigned 
 
            claimant a ten percent permanent partial impairment of the 
 
            right upper extremity and a ten percent permanent partial 
 
            impairment of the left upper extremity.  In the medical 
 
            report of September 14, 1989, Dr. Wirtz acknowledged that he 
 
            had not followed claimant for his right knee since seeing 
 
            claimant on March 3, 1988.  He then indicated that 
 
            claimant's knee was asymptomatic on August 17, 1987, and for 
 
            that reason he believed claimant's knee condition had 
 
            responded without functional limitation or impairment.  
 
            
 
                 Jerome G. Bashara, M.D., evaluated claimant on July 20, 
 
            1990.  His diagnosis was work related bilateral carpal 
 
            tunnel and work related deQuervain's syndrome.  Dr. Bashara 
 
            restricted claimant from repetitive use of the wrist, 
 
            thumbs, and hands.  The doctor assigned claimant a five 
 
            percent permanent partial impairment of the right upper 
 
            extremity and a five percent permanent partial impairment of 
 
            the left upper extremity under the AMA Guides To The 
 
            Evaluation of Permanent Impairment, (3rd Ed.) as a result of 
 
            claimant's surgery, mild loss of motion and sensory changes 
 
            in the hands.  Dr. Bashara diagnosed traumatic 
 
            chrondromalacia [of the right] patella with a stretch injury 
 
            to the medial retinacular and mild lateral subluxation of 
 
            the patella.  The doctor subsequently described claimant's 
 
            knee condition as, in lay terms, a partially torn ligament 
 
            and a crushing injury to the cartilage behind the right knee 
 
            cap.  Dr. Bashara related that condition to claimant's 
 
            October 15, 1987 work injury; the doctor restricted claimant 
 
            from prolonged squatting, kneeling and stair climbing; and 
 
            assigned claimant a six percent permanent partial impairment 
 
            of the lower extremity as a result of mild lateral 
 
            subluxation of the patella, mild loss of knee motion and 
 
            marked crepitation on knee movement.
 
            
 
                 The parties deposed Dr. Bashara on March 23, 1992.  Dr. 
 
            Bashara then took exception with Dr. Wirtz's September 14, 
 
            1989 letter stating that claimant's knee had responded 
 
            without functional limitation or impairment subsequent to 
 
            March 3, 1988.  Dr. Bashara indicated that Dr. Wirtz's 
 
            medical note of August 17, 1989 did not mention his knee or 
 
            any examination of the knee and for that reason Dr. Bashara 
 
            would be "very confused by a letter that was written based 
 
            on no written evidence of any medical notes."  (Bashara 
 
            Deposition, page 19).
 
            
 
                 Dr. Bashara's opinion that claimant has a six percent 
 
            permanent partial impairment of the lower extremity related 
 
            to his October 15, 1987 work injury is accepted over Dr. 
 
            Wirtz's opinion that claimant has no functional limitation 
 
            or impairment as a result of that condition.  Dr. Bashara's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            opinion is more consistent with the evidence presented 
 
            overall.  Claimant had continuing symptoms as of March 3, 
 
            1988.  Dr. Wirtz imposed restrictions as of that date.  
 
            Claimant continued to work under those restrictions until 
 
            his termination at Monfort.  There is no evidence that Dr. 
 
            Wirtz examined claimant or otherwise obtained information 
 
            relative to claimant's knee condition from claimant after 
 
            March 3, 1988.  For that reason, his opinion is given lesser 
 
            weight than that of a physician who had actually evaluated 
 
            and examined claimant at a time when permanency or lack of 
 
            permanency relative to the knee condition could be 
 
            determined.
 
            
 
                 On February 21, 1991, Dr. Wirtz indicated that 
 
            claimant's bilateral hand condition resulted from repetitive 
 
            use, being an overuse syndrome which developed 
 
            simultaneously although it could and did manifest on 
 
            different occasions.  Dr. Wirtz agreed that claimant's hand 
 
            use at work was extensive and greater than hand use among 
 
            the general population.  He agreed there was a direct causal 
 
            relationship between the hand condition and the employment 
 
            and that the hand condition was a natural incident of the 
 
            employment, incidental to the employment and not independent 
 
            of the employment.  Identical questions were posed to Dr. 
 
            Bashara.  Dr. Bashara gave substantially similar responses.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 As noted our sole concern is whether claimant is 
 
            entitled to second injury fund benefits and the nature and 
 
            extent of any second injury fund benefit.  Initially, 
 
            defendant argues that claimant is not entitled to second 
 
            injury fund benefits in that claimant's bilateral carpal 
 
            tunnel syndrome of May 4, 1989 is an occupational disease 
 
            and not a injury under chapter 85.  
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 
            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Section 85A.8; 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Additionally, in Noble v. Lamoni Products, File numbers 
 
            857575 and 851309 (App. Decn., filed May 7, 1992), the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            industrial commissioner ruled that the legislature intended 
 
            that the word disease as used in chapter 85A be given its 
 
            plain meaning.  The Commissioner further ruled that when the 
 
            word disease is given its plain meaning, the word covers a 
 
            broad range of maladies with a variety of causes but does 
 
            not refer to the results of trauma.  The Commissioner noted 
 
            that carpal tunnel syndrome is not caused by an invasion of 
 
            the body by an outside agent but by a series of 
 
            micro-traumas spread over time such as are commonly found in 
 
            cumulative injuries.  The Commissioner found that carpal 
 
            tunnel syndrome as the result of micro-trauma constitutes an 
 
            injury, and not a disease.
 
            
 
                 Claimant's carpal tunnel syndrome is round to be a 
 
            traumatic cumulative injury compensable under chapter 85 and 
 
            not an occupational disease under chapter 85A.
 
            
 
                 We next determine whether claimant has met the 
 
            threshold requirements for entitlement to second injury fund 
 
            benefits.
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Initially the Fund has argued that fund liability 
 
            cannot be triggered in that claimant had no permanent 
 
            impairment as a result of his October 15, 1987 knee injury.  
 
            As stated in the above findings of fact, Dr. Bashara's 
 
            opinion as to permanent impairment casually related to the 
 
            work-related knee injury has been accepted over Dr. Wirtz's 
 
            opinion of a lack of a causal relationship.  Additionally, 
 
            even while claimant remained employed with Monfort, his knee 
 
            injury prevented him from engaging in heavier labor.  
 
            Therefore, claimant has established a first injury and a 
 
            permanent loss of a use on account of that injury.
 
            
 
                 The parties appear not to dispute that claimant had a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            second injury.  Defendant does argue, however, that recovery 
 
            is not possible in that claimant's alleged second injury is 
 
            to two arms and not to "another one such organ."  Defendant 
 
            reads section 85.64 too narrowly.  The benevolent intent 
 
            behind the Second Injury Fund Act, namely, encouraging the 
 
            hiring of handicapped workers would be thwarted if second 
 
            injury fund benefits were available to a handicapped 
 
            individual who had lost only one other member in a 
 
            subsequent injury but were not available to a handicapped 
 
            individual who had lost more than one specific member in a 
 
            second injury.  Both Drs. Wirtz and Bashara have related 
 
            claimant's second injury to his work and related permanent 
 
            impairment resulting from such injury to claimant's work.  
 
            Claimant is found to have established both a first and 
 
            second loss as required to trigger second injury fund 
 
            liability.
 
            
 
                 As the Fund is only responsible for any industrial 
 
            disability present after the second injury that exceeds the 
 
            scheduled disability attributable to the first and second 
 
            injuries, a determination of claimant's industrial 
 
            disability, if any, must be made.
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is a younger worker and high school graduate.  
 
            He has some special skills and training as a taxidermist 
 
            although his injuries apparently prevent him from pursuing 
 
            that activity on a full time basis.  He has restrictions as 
 
            to repetitive movements of the hands, arms and thumbs as 
 
            well as restrictions on kneeling, squatting and stair 
 
            climbing.  It appears that the March 3, 1988 restriction on 
 
            heavy lifting and weight bearing on the right knee also 
 
            remains in place.  Those restrictions likely preclude 
 
            claimant from obtaining work in a packinghouse or other 
 
            heavy industry which work claimant could have obtained prior 
 
            to his work injuries.  Indeed, claimant apparently engaged 
 
            in an extensive job search while receiving unemployment 
 
            benefits and was unable to find work for a prolong period.  
 
            It is noted that claimant's job search was limited to 
 
            maintenance and janitorial type positions for which he may 
 
            well be less well-suited given his work injury.  Claimant 
 
            now has obtained work in two positions since his injury.  
 
            One was a clerking and managerial job; the other a clerking 
 
            and receiving job.  These jobs all appear to be within 
 
            claimant's physical capacities and his physical 
 
            restrictions.  These jobs have a wage scale which 
 
            approximates or is slightly lower than that of an industrial 
 
            worker.  Further, claimant is a younger worker who, given 
 
            his education and intelligence, likely has greater capacity 
 
            for retraining than would have an older worker.  Hence, 
 
            claimant, overall, has less loss of earning capacity than 
 
            would a worker with like restrictions but whose education, 
 
            experience and capacity for retraining confine him to manual 
 
            labor positions.  Claimant is found to have sustained an 
 
            industrial loss of 20 percent, equaling 100 weeks of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            industrial disability benefits.
 
            
 
                 Dr. Bashara's rating of six percent permanent partial 
 
            impairment of the right leg is found appropriate as an 
 
            assessment of claimant's percentage of permanent loss of use 
 
            of that leg.  Under section 85.34(2)(o) a six percent loss 
 
            of use of the leg equals an entitlement to weekly 
 
            compensation for a period of 13.2 weeks.  Dr. Wirtz's 
 
            assessment of permanent partial impairment of ten percent of 
 
            each upper extremity on account claimant's bilateral carpal 
 
            tunnel syndrome and bilateral deQuervain's syndrome is 
 
            accepted over Dr. Bashara's lesser impairment of five 
 
            percent of each upper extremity.  Dr. Wirtz was claimant's 
 
            treating physician for the upper extremity condition.  Dr. 
 
            Bashara was the evaluating physician only.  Under the AMA 
 
            Guides To The Evaluation of Permanent Impairment, (3rd 
 
            Ed.), a ten percent permanent impairment to an upper 
 
            extremity equals a six percent permanent impairment to the 
 
            body as a whole.  Under the combined values chart, a six 
 
            percent permanent impairment to the body as a whole and a 
 
            six percent permanent impairment to the body as a whole 
 
            equals a twelve percent body as a whole permanent 
 
            impairment.  The disability attributable to the second 
 
            injury is properly evaluated as a twelve permanent partial 
 
            impairment of the body as a whole under section 85.34(2)(s) 
 
            in that claimant's loss in the May 4, 1989 work injury was a 
 
            loss of both members in a single accident.  Section 
 
            85.34(2)(s) [we note that the parties have not challenged 
 
            either doctors' finding that claimant's impairment was to 
 
            the upper extremity and not to the hand.  Claimant's 
 
            symptoms appear to extend into the forearm.  Therefore, it 
 
            is accepted that claimant's loss of use and resulting 
 
            permanent partial impairment is to his arms bilaterally and 
 
            not to his hands bilaterally.]
 
            
 
                 A twelve percent body as a whole loss results in an 
 
            entitlement to 60 weeks of compensation under section 
 
            85.34(2)(s).  That 60 weeks represents the disability 
 
            attributable the second injury for which the employer is 
 
            liable under our Act.  The second injury fund then is 
 
            responsible for industrial disability benefits payable to 
 
            claimant for 26.8 weeks.  That is, one hundred (100) weeks 
 
            minus thirteen point two (13.2) weeks minus sixty (60) weeks 
 
            equals twenty-six point eight (26.8) weeks.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant pays claimant permanent partial disability 
 
            benefits for an additional twenty-six point eight (26.8) 
 
            weeks at the rate of two hundred two and 32/100 dollars 
 
            ($202.32) with those payments to commence on the sixty-first 
 
            (61st) week after February 8, 1990, that is, on April 4, 
 
            1991.
 
            
 
                 Defendant pays accrued amounts in a lump sum.
 
            
 
                 Defendant pays interest pursuant to Iowa Code section 
 
            85.30 from the date of this order.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Defendant pays costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant files claim activity reports as ordered by 
 
            the agency.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Arthur C Hedberg Jr
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines Iowa 50309
 
            
 
            Mr Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                3201; 3202
 
                                                Filed August 28, 1992
 
                                                HELENJEAN M. WALLESER
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STEPEHN P. MCANDREWS,    
 
                                                   File No. 923887
 
                 Claimant, 
 
                                              A R B I T R A T I O N
 
            vs.       
 
                                                  D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            3201; 3202
 
            Second injury fund benefits awarded.  Argument that first 
 
            injury to the knee had not produced permanent disability 
 
            rejected where claimant had been medically restricted from 
 
            heavy labor subsequent to that injury.  Argument that 
 
            bilateral carpal tunnel syndrome was an occupational disease 
 
            rejected.  Argument that second injury to more than one 
 
            other member precludes Fund liability rejected.  Where 
 
            second injury involved simultaneous injury to two members in 
 
            a single accident, employer liability for second injury was 
 
            determined under section 85.34(2)(s) even though the 
 
            employer had actually paid the employee benefits as if the 
 
            members had been injured in separate accidents.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAVID HAMER,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 923913
 
            WISERT PRECAST CONCRETE,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by David 
 
            Hamer against his former employer and its insurance carrier 
 
            based upon his injury of August 2, 1989.  In this case claim 
 
            is made for payment for the services rendered to David by 
 
            his spouse, Katheryn Hamer.  The record made consists of 
 
            jointly offered exhibits 1, 2, 3, 4, 5, 7, 8, 10, and 11.  
 
            The record also contains testimony from David Hamer, 
 
            Katheryn Hamer and Joyce Beschta.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 David Hamer is a 63-year-old man who was gainfully 
 
            employed as a truck driver until August 2, 1989, when he was 
 
            severely injured.  The injury resulted in amputation of his 
 
            left arm and substantial loss of use of his right hand and 
 
            arm.  His vision is impaired.  He also sustained a closed 
 
            head injury.  
 
            
 
                 David was not released from hospitalization following 
 
            the injury until October 13, 1989.  His wife and family 
 
            members provided the principle care for him until November 
 
            4, 1989, when home health aide assistance was provided.  
 
            That assistance continued until September 11, 1991, when 
 
            David entered Meadowbrook Hospital near Kansas City, Kansas, 
 
            where he remained until October 25, 1991.  Since his release 
 
            from Meadowbrook David has not had any home health aide or 
 
            similar assistance except that provided by his family 
 
            members, principally his wife, Katheryn.
 
            
 
                 During the first three weeks that David was home from 
 
            the hospital Katheryn devoted a large amount of time to 
 
            caring for him (exhibit 11, page 49).  After three weeks of 
 
            doing so, she was exhausted and home health aide services 
 
            were then provided.  Those services continued to be provided 
 
            from November 4, 1989 through September 11, 1991 (ex. 8).  
 

 
            
 
            Page   2
 
            
 
            
 
            Katheryn still provided services for David when she was not 
 
            working.  At times when Katheryn was herself incapacitated 
 
            due to surgery, home health aides were provided on a 24-hour 
 
            per day basis for David (ex. 2, report dated May 15, 1991).
 
            
 
                 In 1991 the defendants made a determination to 
 
            discontinue home health aide services for David.  There is 
 
            evidence that he had engaged in some sexually inappropriate 
 
            behavior with some of the attendants.  In view of his well 
 
            documented head injury such impulsive and inappropriate 
 
            behavior would not be unexpected.  There is some indication 
 
            in the record that some of David's inappropriate behavior 
 
            may have preexisted the injury in this case, but it is a 
 
            common symptom of head injury patients to lack the behavior 
 
            controls, lack good judgment and self-control which is 
 
            possessed by most uninjured individuals.  His ability to 
 
            engage in inappropriate behavior does not in any manner 
 
            prove that he is capable of totally independent living.  It 
 
            was arranged for David to be an inpatient at Meadowbrook 
 
            Hospital.  The reports from Meadowbrook seem to state that 
 
            he is capable of independently performing the activities of 
 
            daily living (ADL's), yet those reports also have repeated 
 
            references to qualifying statements such as "fairly" when 
 
            defining his independence (ex. 5, p. 44).  In the projected 
 
            discharge plan it was indicated that David would require 
 
            some assistance with financial concerns and safety issues 
 
            (ex. 5, p. 38).  It is noted that the discharge plan 
 
            included placing David at the Roosevelt Hotel, a 24-hour 
 
            assisted living facility which provided three prepared meals 
 
            per day, an emergency response system in the apartment, 
 
            24-hour per day staff, and a licensed home health care 
 
            provider available on the site (ex. 1, p. 7).  The discharge 
 
            reports from Meadowbrook are evaluated based upon the fact 
 
            that the writers of those reports expected David to be going 
 
            into the supervised living setting of the Roosevelt Hotel.  
 
            
 
                 David did not go into the Roosevelt Hotel.  Family 
 
            members met him at the airport and took him home where he 
 
            has remained with his wife up to the present time.
 
            
 
                  Since David has returned home from Meadowbrook his 
 
            wife has continued to provide for most of his needs which he 
 
            is unable to provide for himself.  She is employed in a 
 
            sewing store where she sells fabrics, sewing materials and 
 
            sewing machines.  She is paid $6.50 per hour (ex. 11, p. 5).  
 
            David appears to require some assistance with activities 
 
            such as bathing, dressing, exercising, and the taking of 
 
            prescription medications.  He requires someone to escort him 
 
            when attending medical appointments.  He is capable of 
 
            performing some of his food preparation needs, but it is 
 
            necessary for Katheryn to perform some special services in 
 
            order to enable David to feed himself.  He requires 
 
            observation and supervison.
 
            
 
                 The record of this case does not contain any detailed 
 
            itemized statement of the services performed by Katheryn or 
 
            the amount of time engaged by her in performing those 
 
            services.  It is certain that Katheryn, as a conscientious 
 

 
            
 
            Page   3
 
            
 
            
 
            and devoted wife, would care for David to the utmost of her 
 
            ability regardless of whether or not she were being paid for 
 
            doing so.  It is apparent that during the time home health 
 
            aides were provided those aides performed some of the 
 
            services which had customarily been performed in the home by 
 
            Katheryn prior to the time David was injured.  It is also 
 
            clear that some of the services which Katheryn performs were 
 
            performed by her prior to the time David was injured.  She 
 
            has always performed much of the laundry, cooking and 
 
            housekeeping activities in the family.  Nevertheless, 
 
            David's injury has imposed an additional burden upon her.  
 
            
 
                 It is difficult to assess the amount of time which 
 
            Katheryn spends providing for David's needs which would not 
 
            have been necessary to perform if he had not been injured.  
 
            The dressing, bathing, medication, and exercising assistance 
 
            were not required prior to the injury.  It was not necessary 
 
            for her to accompany him to appointments when he traveled 
 
            outside of the home prior to the time he was injured.  He 
 
            did not require preparation of special meals.  These are all 
 
            additional activities with which she has been burdened as a 
 
            result of his injury.  They are activities which were 
 
            performed by the home health aides.  They are activities 
 
            which were performed by the hospital staff and nurses during 
 
            the time when he was hospitalized.  They are activities 
 
            which would be provided by nursing home staff if David were 
 
            placed in a nursing home.  David is not totally helpless.  
 
            He does, however, require a minimal to moderate level of 
 
            assistance.  Most importantly he requires supervision and 
 
            observation on a daily and recurring basis.
 
            
 
                 Much is written and stated in the hundred's of pages of 
 
            evidence in this record regarding the level of David's 
 
            independence.  Much of what was written was obtained in 
 
            order to justify discontinuation of the home health aide 
 
            services.  The undersigned gives great weight to the fact 
 
            that the Roosevelt living arrangement is what was selected 
 
            for David when it appeared as though his wife would not take 
 
            him back into the home.  Actions often speak louder than 
 
            words and the arrangement which was selected by the 
 
            Intracorp representative is a strong indication that the 
 
            Intracorp representative realized that David was not capable 
 
            of independent living.  David's family knows that he is not 
 
            capable of independent living.  The undersigned is fully 
 
            convinced that David is not capable of totally independent 
 
            living.  While he is capable of being fairly independent, it 
 
            is still necessary that he be supervised and that assistance 
 
            be available on those occasions when he needs it.  
 
            
 
                 David's needs are such that he does not require actual 
 
            assistance 24 hours per day.  What he does require is that 
 
            someone check on him and that someone be reasonably 
 
            available.  He requires someone to be in what might be 
 
            termed an "on call" status.  It is certain that the amount 
 
            of assistance provided by Katheryn varies greatly from day 
 
            to day.  Based upon all the evidence in the record of this 
 
            case and common knowledge and experience, it is found that, 
 

 
            
 
            Page   4
 
            
 
            
 
            on the average, Katheryn provides assistance to David for 
 
            approximately two hours per day.  This has been the 
 
            situation since David returned from the Meadowbrook facility 
 
            on October 25, 1991.  During those first three weeks when 
 
            David had been released from the hospital from October 13, 
 
            1989 through November 3, 1989, it is found that Katheryn 
 
            provides services an average of ten hours per day.  The 
 
            initial period of care provided by Katheryn before the home 
 
            health aide services were started was over a period of 22 
 
            days.  Since David returned from Meadowbrook up to the date 
 
            of hearing, 655 days elapsed.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The real crux of this case is determining how much CNA 
 
            Insurance is to benefit economically as a result of the fact 
 
            that David Hamer has a devoted wife who will care for his 
 
            needs.  In comparison to what CNA Insurance would be paying 
 
            if Katheryn were to refuse to provide for David's needs, any 
 
            reasonable amount which they might pay her for her services 
 
            would still be a bargain.  Nursing home care costs tens of 
 
            thousand's of dollars per year.  Living in a residential 
 
            hotel facility like the Roosevelt is likewise quite costly 
 
            though the exact figures are not in the record of this case.  
 
            There is nothing in the way of Iowa Supreme Court precedents 
 
            dealing with the issue of payment for services rendered by a 
 
            spouse.  It is well recognized that in our society there was 
 
            a time when it was considered the duty of a spouse to care 
 
            for a disabled spouse.  That is no longer the case today 
 
            since it is common for both spouses in a family to be fully 
 
            employed outside the home.  That fact has been recognized in 
 
            the well regarded treatise 2 Larson, Workmen's Compensation 
 
            Law, 61.13(d)(1-4).  Katheryn should be paid on a quantum 
 
            merit basis since to do otherwise would result in no 
 
            recovery at all for the services she has provided.
 
            
 
                 In section 85.27 of the Code there is found a list of 
 
            the types of services that are to be provided to an injured 
 
            employee.  Nursing services are expressly included but home 
 
            health care aide services are not mentioned in the statute.  
 
            It therefore requires a construction of section 85.27 in 
 
            order to determine if the types of services which are listed 
 
            are the only services which an employer is required to 
 
            provide or whether the listing is merely illustrative.  When 
 
            making this construction it is important to keep in mind the 
 
            humanitary objectives of the workers' compensation statute.  
 
            It is intended primarily for the benefit of the worker and 
 
            worker's dependents.  It beneficent purpose is not to be 
 
            defeated by reading something into it which is not there, or 
 
            by a narrow and strained construction.  Cedar Rapids Comm. 
 
            School. v. Cady, 278 N.W.2d 298 (Iowa 1979).  Further, 
 
            section 85.38(1) states: "The compensation herein provided 
 
            shall be the measure of liability which the employer has 
 
            assumed for injuries...and it shall not be in anywise 
 
            reduced by contribution from employee or donations from any 
 
            source."  It is difficult to place a construction upon the 
 
            statue which would require Katheryn Hamer to become the 
 

 
            
 
            Page   5
 
            
 
            
 
            unpaid, involuntary care provider for David simply because 
 
            she is married to him, especially when, but for the 
 
            marriage, the defendants would be paying large sums to 
 
            provide for his care in a nursing home or supervised 
 
            residential care facility of some type.  This is especially 
 
            true since, for part of the time in question, Katheryn 
 
            reduced her own work hours in order to provide care for 
 
            David.  The situation is one which results in defendants 
 
            being unjustly enriched as a result of Katheryn's 
 
            dedication.  
 
            
 
                 The most recent agency case dealing with this issue is 
 
            Henry v. Iowa Illinois Gas and Electric Co., file number 
 
            691991 (App. Dec. Nov. 23, 1992).  It should be noted that 
 
            Austin Henry was gainfully employed and not totally 
 
            disabled.  The current agency precedents are somewhat 
 
            inconsistent with 2 Larson 61.13(d)(1-4).  The agency seems 
 
            to have created a distinction regarding whether or not the 
 
            spouse is licensed as a nurse.  The agency also states that 
 
            if the services were performed out of the family 
 
            relationship that the persons who performed them are not 
 
            entitled to payment. 
 
            
 
                 The older agency precedents such as Neilsen v. City of 
 
            Sioux City, Thirty-third Biennial Report of the Industrial 
 
            Commissioner 196 (App. Dec. 1977) were in accord with 
 
            Larson.  It has long been recognized in other jurisdictions 
 
            that the fact that a conscientious spouse may perform the 
 
            services does not diminish the employer's duty to compensate 
 
            the spouse as the person who discharges the employer's duty 
 
            to provide those services.  Kushay v. Sexton Diary Co., 394 
 
            Michigan 69 228 N.W.2d 205 (Mich. 1975).
 
            
 
                 The term "nursing" used in section 85.27 of the Code is 
 
            not defined elsewhere.  The statute dealing with the 
 
            licensing of nurses does not provide guidance as to what 
 
            activities are or are not nursing services.  It is well 
 
            recognized that nurses perform a wide variety of functions 
 
            ranging from taking notes, drawing blood, assisting 
 
            physicians, dressing patients, bathing patients, assisting 
 
            patients to ambulate, and even such things as limited, 
 
            occasional cleaning patient rooms.  While one need not be a 
 
            registered or licensed nurse in order to perform all 
 
            functions which are ever performed by nurses, it is clear 
 
            that the scope of services which are commonly and 
 
            customarily performed by nurses is quite broad.  The fact 
 
            that a particular function or activity can lawfully be 
 
            performed by someone other than a licensed nurse does not 
 
            mean that it is not a nursing function.  The American 
 
            Heritage Dictionary, second college edition, defines nursing 
 
            as "(1) The occupation of a nurse. (2) The tasks of a 
 
            nurse."  Stedman's Medical Dictionary, 24th edition, defines 
 
            nursing as "Feeding an infant at the breast; tending and 
 
            taking care of a child; caring for the mentally or 
 
            physically ill or infirm; in general, performing the duties 
 
            of a nurse. (3) The scientific care of the sick by a 
 
            professional nurse."  While it is quite likely that the 
 

 
            
 
            Page   6
 
            
 
            
 
            legislature was not intending to provide for breast feeding 
 
            of injured persons, it is not unlikely that they would have 
 
            intended to provide for all needed nursing tasks, not just 
 
            those which are performed by a licensed nurse or which could 
 
            only lawfully be performed by a licensed nurse.  It is 
 
            determined that "nursing" as used in section 85.27 means all 
 
            types of care needed by an injured person as a result of the 
 
            injury and disability.
 
            
 
                 The real test as to what payment is required to be paid 
 
            is based upon the nature of the services, not the status of 
 
            licensure of the spouse performing those services.  It has 
 
            previously been found in this case that during the first 22 
 
            days David was home from the hospital that Katheryn 
 
            performed an average of ten hours per day performing the 
 
            requisite task of bathing, dressing, changing bandages, 
 
            medicating, and special food preparation for David.  Those 
 
            are all nursing-type services.  She is entitled to be 
 
            compensated for those services.  
 
            
 
                 During the time that home health care was provided, 
 
            those aides performed some of Katheryn's routine 
 
            housekeeping services.  While it is true that Katheryn 
 
            provided care to David during that period of nearly two 
 
            years, there was an offset for the amount of normal 
 
            homemaking services which were provided by the aides.  
 
            
 
                 Since the aides were discontinued Katheryn has had to 
 
            continue to provide services for David.  The undersigned has 
 
            determined that an average of two hours per day is an 
 
            appropriate amount of time to reflect the amount of care 
 
            that Katheryn has provided to David in the nature of nursing 
 
            services.  In this case nursing services are distinguished 
 
            from normal housekeeping and homemaking activities.  The 
 
            normal housekeeping and homemaking activities include things 
 
            such as cleaning house, doing laundry and cooking meals.  It 
 
            does not, however, include services such as assisting David 
 
            in bathing, dressing, exercising, arranging his medications 
 
            for him to take, and the special food preparation activities 
 
            necessary because of his disability.  Normal housekeeping 
 
            does not include escorting him to medical appointments and 
 
            to exercise.
 
            
 
                 To the event that some of these services are provided 
 
            by other family members who are not making claim for 
 
            payment, Katheryn should be the beneficiary of those 
 
            services, not CNA Insurance Company and the former employer.  
 
            
 
                 The rate at which Katheryn should be paid is also an 
 
            issue.  Katheryn is not a registered nurse, nor is she a 
 
            licensed practical nurse, nor is she a certified nurse's 
 
            aide.  The best measure of the value of Katheryn's time is 
 
            the rate at which she is compensated at her regular job, 
 
            namely, $6.50 per hour.  It is Katheryn who provides these 
 
            services to David, not a registered nurse.  Accordingly, the 
 
            rate of pay Katheryn receives for caring for David should be 
 
            the rate of pay Katheryn receives for performing other paid 
 
            activities in her life.  The rate of pay she earns at her 
 
            usual job is a very good, though not necessarily conclusive, 
 

 
            
 
            Page   7
 
            
 
            
 
            indicator of the rate of pay which she should receive when 
 
            providing services for David.  It is therefore determined 
 
            that Katheryn should be paid at the rate of $6.50 per hour 
 
            for all the hours she has worked up to the date of this 
 
            hearing.  
 
            
 
                 In the future payments Katheryn Hamer should be paid 
 
            monthly for the services she renders to David.  At the 
 
            present time two hours per day appears to continue to be a 
 
            reasonable amount of time.  With the passage of time it is 
 
            expected that the rate of pay should increase commensurate 
 
            with inflation and normal increases in the cost of living.
 
            
 
                 It is therefore determined that during the period of 
 
            time from October 13, 1989 through November 3, 1989, 
 
            Katheryn devoted 120 hours to caring for David which, at the 
 
            rate of $6.50 per hour, entitles her to be paid $1430.
 
            
 
                 It is further determined that during the period of time 
 
            from October 25, 1991 through the date of hearing, Katheryn 
 
            devoted a total of 1310 hours to the care of David.  At 
 
            $6.50 per hour this computes to $8515.  The combined total 
 
            owed to Katheryn for the nursing services she had provided 
 
            to David is therefore $9945.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay David Hamer 
 
            the sum of nine thousand nine hundred forty-five dollars 
 
            ($9945) for the reasonable value of the nursing services 
 
            provided to him by his wife Katheryn Hamer and that the 
 
            payment thereof be made payable jointly to Katheryn and 
 
            David Hamer.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendant file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Jay P. Roberts
 
            Attorney at Law
 
            620 Lafayette St.
 
            PO Box 178
 
            Waterloo, Iowa  50704
 
            
 
            Mr. John Bickel
 
            Mr. Richard C. Garberson
 
            Attorneys at Law
 
            500 Firstar Bank Bldg
 
            PO Box 2107
 
            Cedar Rapids, Iowa  52406
 
            
 
 
            
 
            
 
            
 
                                            2501 2505
 
                                            Filed November 4, 1993
 
                                            Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAVID HAMER,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 923913
 
            WISERT PRECAST CONCRETE,      :
 
                                          :   A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2501 2505
 
            Spouse awarded $9945 for services rendered caring for 
 
            totally disabled husband over a period of approximately four 
 
            years.
 
            Payment awarded for nursing type services but not for 
 
            homemaker type services.  Nursing services broadly defined 
 
            to include dressing, bathing, administering medication, 
 
            special food preparation, exercising, and accompanying to 
 
            medical appointments.
 
            Pay awarded at rate the wife normally earned in her regular 
 
            employment.  She was not a nurse and held not entitled to 
 
            nurse's pay scale.  Award based on two hours of services per 
 
            day, not the entire time she was present with her husband.
 
            Section 85.27 list of services covered held to be 
 
            illustrative - not limiting.  Section 85.38(1) prevents 
 
            defendants from recovering credit for services gratuitously 
 
            provided by others.