Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ___________________________________________________________
 
                                          :
 
            DONALD RICKELS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 924674
 
            IOWA STATE MEN'S REFORMATORY, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Donald Rickels, against his employer, State of 
 
            Iowa at the Men's Reformatory, defendant.  This is a case 
 
            which has been brought pursuant to Chapter 85B.  The case 
 
            was heard in Des Moines, Iowa on July 17, 1991.  The record 
 
            consists of the testimony of claimant.  Additionally, the 
 
            record consists of the testimonies of Sidney R. Myers, 
 
            Russell E. Williams, Jon Husman, and Danny Oltmann.  The 
 
            record also consists of joint exhibits 1-10.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent disability benefits; and, 4) whether 
 
            claimant is entitled to certain medical benefits pursuant to 
 
            section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 53 years old.  He commenced his employment 
 
            at the Men's Reformatory on July 17, 1972.  Claimant was 
 
            hired as a Carpenter I.  He progressed to a Carpenter II.  
 
            From 1972 to 1983, claimant engaged in the structural work 
 
            of new buildings.  His duties were varied.  Approximately 
 
            two years after he started working, claimant was trained and 
 
            licensed to use a "Ramset Gun."
 
            
 
                 The Ramset Gun is a tool which is used to anchor a nail 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            into stone or concrete.  The nail will penetrate through two 
 
            inches of concrete.  The manufacturer of the tool describes 
 
            the Ramset gun as:
 
            
 
                 STANDARD VELOCITY PRINCIPLE
 
            The most powerful method of fastening, the 
 
            Standard Velocity System provides unequalled 
 
            holding power.  Drive pins and threaded studs are 
 
            driven directly into masonry or steel by the force 
 
            from a special Ramset industrial powder load.  A 
 
            dependable, low maintenance method of fastening 
 
            wood and metal to tough, thick materials--steel up 
 
            to 1" thick and concrete of any compressive 
 
            strength.
 
            
 
            (Exhibit 9, page 3)
 
            
 
            The operator must push the gun against the wall and release 
 
            the fire pin.  When the nail is released, there is a very 
 
            loud noise.  If the gun is shot in an enclosed space, a 
 
            louder noise is made.  Claimant described the sound as an 
 
            echoing sound which was two times louder than when the gun 
 
            was shot outside.
 
            
 
                 In 1974 or 1975, claimant used the Ramset Gun on a 
 
            daily basis at the Iowa Men's Reformatory.  He was 
 
            installing strips around the windows so that plastic could 
 
            be placed across them.  Claimant testified that for a one to 
 
            two month period, claimant shot the Ramset Gun 100-200 times 
 
            per day.  Claimant's testimony revealed that he wore a band 
 
            around his ears, stuffed his ears with cotton, but that his 
 
            ears would ring for days after he used the Ramset Gun.  
 
            Claimant also testified he used the Ramset Gun for projects 
 
            other than the window one.
 
            
 
                 Claimant testified he performed other work where the 
 
            Ramset Gun was not used.  Often he worked in the carpentry 
 
            shop where several tools were operating and producing loud 
 
            sounds.  The tools were the radial arm saw, the planer and 
 
            the diamond core drills.
 
            
 
                 On November 16, 1984, claimant voluntarily transferred 
 
            to Luster Heights which is a camp associated with the 
 
            reformatory.  Claimant became a correctional officer.  His 
 
            duties did not require claimant to work around loud noises.
 
            
 
                 Claimant explained he first experienced hearing 
 
            problems in 1988.  He stated he could not discriminate 
 
            sounds when his wife spoke.  Nor could he hear the telephone 
 
            ring.
 
            
 
                 Claimant first had his ears tested on February 28, 
 
            1989, at the Prairie due Chien Memorial Hospital.  In her 
 
            report of March 1, 1989, Sandra H. Woodward, M.S. CCC-A, 
 
            described claimant's test results.  She wrote:
 
            
 
                    Mr. Donald Rickles [sic] was seen February 28, 
 
                 1989 at Prairie du Chien Memorial Hospital for an 
 
                 audiological evaluation.  The results of that 
 
                 evaluation indicate the presence of a bilateral 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 high frequency sensor ineural hearing loss with 
 
                 only fair speech discrimination when evaluated in 
 
                 quiet.  A trial period of amplification with 
 
                 binaural in-the-ear hearing aids is recommended.
 
            
 
                    This type of hearing loss may be caused by 
 
                 prolonged exposure to excessive noise levels.  
 
                 High frequency hearing loss typically creates 
 
                 certain problems.  First, the individual will 
 
                 experience difficulty sorting one voice out of a 
 
                 background of noise, and second, he will have 
 
                 difficulty hearing words clearly, particularly in 
 
                 a noisy environment.  Given Mr. Rickles' [sic] 
 
                 description of his work environment and 
 
                 responsibilities, it is suspected that a 
 
                 significant hearing loss might be both a handicap 
 
                 for him, and a security risk.  Therefore, use of 
 
                 hearing aids is strongly recommended.
 
            
 
                    Please do not hesitate to contact me if I can 
 
                 provide further information.
 
            
 
            (Ex. 5, p. 3)
 
            
 
                 As a result of his hearing tests, claimant was fitted 
 
            with hearing aids.
 
            
 
                 Claimant had his hearing tested again on December 18, 
 
            1990.  Ms. Woodward's audiological report indicated:
 
            
 
                 Pt concerned that hrng has worsened.- Has lost 
 
                 HAs.  Test results are very similar to those 
 
                 obtained 2-28-89.  Moderate to severe 
 
                 sensorineural loss above 1000 Hz with fair speech 
 
                 discrim bilat.
 
            
 
                 Rec:  Replace aids under warranty.
 
            
 
            (Ex. 2, p. 2)
 
            
 
                 Claimant filed his original notice and petition with 
 
            the Iowa Division of Industrial Services on August 24, 1990.  
 
            At the time of the hearing, claimant was still employed at 
 
            Luster Heights as a correctional officer.  He testified he 
 
            had used the Ramset Gun on two occasions between 1983 and 
 
            1989.
 
            
 
                                conclusions of law
 
            
 
                 Occupational hearing loss is defined in section 85B.4.  
 
            Under the section, an occupational hearing loss is a 
 
            permanent sensorineural loss of hearing in one or both ears 
 
            in excess of 25 decibels which arose out of and in the 
 
            course of the employment and was caused by prolonged 
 
            exposure to excessive noise levels.  An excessive noise 
 
            level is sound capable of producing occupational hearing 
 
            loss or sound exceeding the time and intensities listed in 
 
            the table in section 85B.5 or both.  See Muscatine County v. 
 
            Morrison, 409 N.W.2d 685 (Iowa 1987).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The table in section 85B.5 then, is not the minimum 
 
            standard defining an excessive noise level in section 
 
            85B.4(2).  The table in section 85B.5 lists noise level 
 
            times and intensities which, if met, will be presumptively 
 
            excessive noise levels of which the employer must inform the 
 
            employee.  See Muscatine County, Supra.
 
            
 
                 A claim for an occupational hearing loss may be brought 
 
            pursuant to section 85B.8.  The section provides that:
 
            
 
                    A claim for occupational hearing loss due to 
 
                 excessive noise levels may be filed six months 
 
                 after separation from the employment in which the 
 
                 employee was exposed to excessive noise levels.  
 
                 The date of the injury shall be the date of 
 
                 occurrence of any one of the following events:
 
               1.  Transfer from excessive noise level 
 
            employment by an employer.
 
               2.  Retirement.
 
               3.  Termination of the employer-employee 
 
            relationship.
 
               The date of injury for a layoff which continues 
 
            for a period longer than one year shall be six 
 
            months after the date of the layoff.  However, the 
 
            date of the injury for any loss of hearing 
 
            incurred prior to January 1, 1981 shall not be 
 
            earlier than the occurrence of any one of the 
 
            above events.
 
            
 
                 Section 85B.8 provides that the date of injury in an 
 
            occupational hearing loss claim is the date of occurrence of 
 
            "any one"  of either transfer from excessive noise level 
 
            employment, retirement or termination.  "Any one of the 
 
            following events" has been interpreted by the industrial 
 
            commissioner in a declaratory ruling.  The phrase is 
 
            interpreted to mean the first to occur of the events.  See:  
 
            In Re Declaratory Ruling of John Deere Dubuque Works of 
 
            Deere & Company, III Iowa Industrial Commissioner Report 
 
            147.
 
            
 
                 The supreme court has also held the same position in 
 
            the case of John Deere Dubuque Works of Deere & Company v. 
 
            Weyant, 442 N.W.2d 101 (Iowa 1989).
 
            
 
                 In the arbitration case of Udell v. John Deere Dubuque 
 
            Works of Deere & Company, Vol. 2, No. 1 Industrial 
 
            Commissioner Decisions 407 at 409-410 (1985), Deputy 
 
            Walleser wrote:
 
            
 
                    Claimant alleges in his petition that his 
 
                 injury date was his retirement date, apparently 
 
                 September 1, 1982.  The objective evidence does 
 
                 not support claimant's contention, however.  Work 
 
                 histories for claimant indicate he has not 
 
                 consistently worked at noise levels exceeding 70 
 
                 dba since becoming an industrial forklift operator 
 
                 on August 11, 1969.  Prior to that date, he had 
 
                 had substantial noise exposure exceeding 86 dba.  
 
                 Thus, a 16 dba reduction in the intensity of 
 
                 claimant's work noise exposure occurred on and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 after August 11, 1969.  The times and intensities 
 
                 table of 85B.5 is not an exclusive listing of 
 
                 excessive noise levels.  Prolonged exposure to 
 
                 excessive noise levels may result over time where 
 
                 the intensity of exposure is less but the duration 
 
                 greater.  However, the tables delineate times and 
 
                 intensities of exposure which by law are excessive 
 
                 noise levels.  They also provide guidance in 
 
                 considering whether a less intense or less 
 
                 prolonged exposure could reasonably result in an 
 
                 excessive noise level exposure.  In this case, 
 
                 both the actual reduction in weighted noise 
 
                 exposure and the fact that the reduced weighted 
 
                 noise exposure was at least 20 dba below the 90 
 
                 dba for an eight hour duration listed in the table 
 
                 supports the findings that claimant was 
 
                 transferred from excessive noise level employment 
 
                 on August 11, 1969.  Claimant's occurrence date, 
 
                 if any, is August 11, 1969, a date prior to the 
 
                 January 1, 1981 effective date of chapter 85B.
 
            
 
                    Claimant argues in his brief that the 
 
                 occurrence of any enumerated event should be 
 
                 sufficient to permit filing a claim for a loss 
 
                 allegedly occurring before January 1, 1981.  Such 
 
                 is not the case, however.  Section 4.5, Code of 
 
                 Iowa, provides that a statute is presumed to be 
 
                 prospective in its operation unless expressly made 
 
                 retrospective.  The legislature did not expressly 
 
                 make chapter 85B retroactive.  The Act as a whole 
 
                 must be construed in that light.  Hence, the 
 
                 addition of the final sentence to section 85B.8 
 
                 saves claims for occupational hearing loss 
 
                 incurred prior to January 1, 1981 if any of the 
 
                 enumerated events occurred at a time which would 
 
                 place the prospective claim within the applicable 
 
                 limitation period.  Section 85B.14 makes section 
 
                 85.26(1) and (3) applicable to chapter 85B.  
 
                 Therefore, a potential claim for occupational 
 
                 hearing loss benefits which could be filed on or 
 
                 after the January 1, 1981 effective date of the 
 
                 occupational hearing loss act without exceeding 
 
                 the limitation period of section 85.26(1) is a 
 
                 valid occupational hearing loss claim within the 
 
                 parameters of the Act.  Section 85.26(1) permits 
 
                 commencement of an original contested case 
 
                 proceeding within two years of the occurrence of 
 
                 the injury.  Claimant's date of occurrence of 
 
                 injury, if any, was August 11, 1969.  Claimant 
 
                 commenced his claim on May 22, 1984.  Clearly, the 
 
                 section 85.26(1) limitation period was exceeded.  
 
                 Under the foregoing analysis, claimant's potential 
 
                 claim is not among those within the parameters of 
 
                 the Act.  Claimant's claim must fail.
 
            
 
                    Claimant also argues in his brief that the 
 
                 discovery rule should save his claim for 
 
                 occupational hearing loss benefits.  We shall 
 
                 first address that argument on its face.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    The discovery rule delays the accrual of the 
 
                 cause of action until the injured person has in 
 
                 fact discovered his injury or by exercise of 
 
                 reasonable diligence should have discovered it.  
 
                 Chrischilles v. Griswold, 260 Iowa 453, 463, 150 
 
                 N.W.2d 94, 100 (Iowa 1980).
 
            
 
                    The limitation period under section 85.26 
 
                 begins to run when the employee discovers or in 
 
                 the exercise of reasonable diligence should have 
 
                 discovered the nature, seriousness and probable 
 
                 compensable character of the injury for which 
 
                 benefits are claimed.  Orr v. Lewis Central School 
 
                 District, 298 N.W.2d 256, 261 (Iowa 1980).
 
            
 
                    In the context of the notice statute, section 
 
                 85.23, the Iowa Supreme Court has explained its 
 
                 similar rule thusly:
 
            
 
                       The reasonableness of the claimant's conduct 
 
                    is to be judged in the light of his own 
 
                    education and intelligence.  He must know 
 
                    enough about the injury or disease to realize 
 
                    it is both serious and work-connected, but 
 
                    positive medical information is unnecessary if 
 
                    he has information from any source which puts 
 
                    him on notice of its probable compensability.  
 
                    Robinson v. Department of Transportation, 296 
 
                    N.W.2d 809, 819 (Iowa 1980).
 
            
 
                    Both standards are apparently derived from the 
 
                 following statement of the discovery rule in 
 
                 workers' compensation cases:  "The time period for 
 
                 notice or claim does not begin to run until the 
 
                 claimant, as a reasonable man, should recognize 
 
                 the nature, seriousness and probable compensable 
 
                 character of his injury or disease.  3A [sic] 
 
                 Larson, Workmen's Compensation 78.41 at 15-65 to 
 
                 15-66 (1976)" as cited in Robinson at 812.
 
            
 
                    When claimant's argument is taken at its face, 
 
                 the discovery rule does not save his alleged 
 
                 claim.  Claimant was well aware of noise induced 
 
                 hearing loss for he had suffered such a loss 
 
                 during his military service and had received a 
 
                 service disability for that loss.  Claimant also 
 
                 knew he was exposed to noise in his work.  
 
                 Claimant is a gentleman of at least average 
 
                 intelligence.  He, therefore, could reasonably be 
 
                 expected to both recognize that he had a hearing 
 
                 loss and to inquire as to the loss' 
 
                 work-relatedness and possible compensability 
 
                 within a short time of experiencing the loss.  
 
                 There is no evidence in the record demonstrating 
 
                 claimant did either.  Hence, on its face the 
 
                 discovery rule could save claimant's claim.
 
            
 
                    Claimant's argument as to the discovery rule 
 
                 also fails for a more fundamental reason.  
 
                 Claimant would have the discovery rule create 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 commendable claims for persons who suffered a 
 
                 hearing loss beyond the Act's effective date, but 
 
                 who did not discover that loss until the effective 
 
                 date....
 
            
 
                 Claimant alleges on the face of his petition that he 
 
            had sustained an injury in the form of a hearing loss on 
 
            January 18, 1989.  The basis for selecting this injury date 
 
            is unclear to the undersigned.  However, this deputy 
 
            acknowledges that claimant's first hearing test did occur on 
 
            February 7, 1989.
 
            
 
                 As an affirmative defense, defendant maintains that 
 
            claimant has not filed his claim in a timely fashion.  
 
            Defendant argues in its brief the following:
 
            
 
                    The Claimant was a Carpenter at Anamosa from 
 
                 July 16,1972 [sic] until he transferred to Luster 
 
                 Heights on November 16, 1984 to assume the duties 
 
                 of a correctional officer.  Subsequently, he left 
 
                 the job at Anamosa to assume the duties of a 
 
                 quieter occupation at Luster Heights.  Therefore 
 
                 the Claimant meets the first criteria of 85B.8 and 
 
                 the date of occurrence of his injury was the date 
 
                 of his transfer to Luster Heights - November 16, 
 
                 1984.  Claimant filed his petition on August 28, 
 
                 1990.  Therefore based upon 85B.14, the Claimant 
 
                 has clearly failed to file his petition within the 
 
                 two years allotted by the applicable statute of 
 
                 limitations.
 
            
 
            (Defendant's brief, page 5)
 
            
 
                 Defendant also argues that claimant should have 
 
            exercised reasonable diligence in recognizing the hearing 
 
            loss before the statute of limitations had tolled.  
 
            Defendant too maintains that the discovery rule does not 
 
            apply in this situation.
 
            
 
                 Defendant argues in its brief at pages 6-7 the 
 
            following:
 
            
 
                    The application of the discovery rule delays 
 
                 the accrual of the cause of action until the 
 
                 injured person has in fact discovered the injury 
 
                 or by exercise of reasonable diligence should have 
 
                 discovered it (emphasis added). Chrischilles v. 
 
                 Griswold, 260 Iowa 453, 463, 150 N.W.2d 94,100 
 
                 (1967).  John Deere Dubuque Works v. Myers, 410 
 
                 N.W.2d 255 (Iowa 1987).
 
            
 
                     The limitation period of 85B.14 begins to run 
 
                 when the employee discovers or in the exercise of 
 
                 reasonable diligence should have discovered the 
 
                 nature, the seriousness and the probable 
 
                 compensable character of the injury for which 
 
                 benefits are claimed (emphasis added). Orr v. 
 
                 Lewis Central School District, 298 N.W.2d 256, 261 
 
                 (Iowa 1980).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    The discovery rule, which may save claims which 
 
                 fall under Chapter 85B, does not save Claimant's 
 
                 petition in this instance.2  The Claimant is a 
 
                 high school graduate who appeared to be of average 
 
                 intelligence.  He testified that he complained of 
 
                 excessive noise on several occasions to his 
 
                 supervisor during the time he was at Anamosa.  
 
                 Therefore he was clearly aware that his job duties 
 
                 between 1972 and 1984 encompassed activities which 
 
                 could be harmful to his hearing.  Claimant 
 
                 reported symptoms of a hearing loss, allegedly 
 
                 related to occupational noise exposure to doctors 
 
                 in 1989.  It is reasonable to assume that he 
 
                 should have also been aware of those symptoms in 
 
                 the years immediately following his transfer to 
 
                 Luster Heights away from the occupational noise 
 
                 which allegedly precipitates his hearing loss.3
 
            
 
                 ___________________________
 
            
 
                    2 But Cf. John Deere Dubuque Works v. Myers, 
 
                 410 N.W.2d 255 (Iowa 1987).  (Discovery rule 
 
                 applies to hearing loss statutes.)  In John Deere, 
 
                 Claimant suspected a loss of hearing about 4 
 
                 months after he was laid off and separated from 
 
                 the excessive noise which is alleged to have 
 
                 caused his loss of hearing.  He was sent to an 
 
                 otolaryngologist on March, 18 1982 [sic] who 
 
                 diagnosed him with a high frequency sensorineural 
 
                 hearing loss related to noise exposure at work.  
 
                 Subsequently he filed a petition with the 
 
                 Industrial Commissioner on March 7, 1984.
 
               Distinguishing the case at hand, Claimant does 
 
            not discover a hearing loss until approximately 13 
 
            years after the incident he alleges was most 
 
            responsible for his hearing loss and 4 years after 
 
            he transfers to another job which removes him from 
 
            the activities he asserts caused his hearing loss.  
 
            In addition he does not file a petition until 
 
            August 28, 1990 - almost 15 years after he used 
 
            the Ramset Gun on a frequent basis.
 
            
 
                    3 See Vandermulen  v. John Deere Dubuque Works 
 
                 of Deere & Company, 2 Industrial Comm'r 412,415 
 
                 (1985). (If a person reported a hearing loss to a 
 
                 physician in 1983, it is reasonable to assume he 
 
                 was aware of the symptoms when the hearing loss 
 
                 occurred in July of 1979.)
 
            
 
                 It is the determination of the undersigned that 
 
            claimant's claim is barred by the statute of limitations.  
 
            Using the statutory mandates of section 85B.8 and section 
 
            85.26, and using the rationale applied in Weyant, supra, 
 
            there is only one date which can be used at the date of 
 
            occurrence.  It is the November 16, 1984 date.  This date 
 
            represents the date on which claimant transferred from the 
 
            Men's Reformatory in Anamosa, a workplace where there had 
 
            been at least action levels of noise, to Luster Heights, a 
 
            place where there had been a much quieter work environment.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Claimant filed this action on August 24, 1990.  More 
 
            than two years had expired since claimant's transfer date to 
 
            Luster Heights.  Claimant's claim is barred by the statute 
 
            of limitations.
 
            
 
                 Even if the discovery rule is applied in this case, 
 
            claimant's claim is untimely.  Claimant's date of transfer 
 
            is November 16, 1984.  Claimant testified he first 
 
            experienced problems with his hearing in 1988.  His hearing 
 
            was tested in 1989.  Claimant appears to be average in 
 
            intelligence.  He has graduated from high school.  He was in 
 
            the armed forces.  It would have been reasonable for 
 
            claimant to have discovered a potential work related hearing 
 
            loss prior to 1988, 1989, or the date of the petition, 
 
            August 24, 1990.  Therefore, it is the determination of the 
 
            undersigned that claimant's claim is barred.  The discovery 
 
            rule does not render this claim timely filed.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 1.  Claimant shall take nothing from this proceeding.
 
            
 
                 2.  The costs of this action are taxed to claimant.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Pennington
 
            Attorney at Law
 
            620 Fleming Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2208; 2402
 
                           Filed November 13, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ___________________________________________________________
 
                                          :
 
            DONALD RICKELS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 924674
 
            IOWA STATE MEN'S REFORMATORY, :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            2208; 2402
 
            Claimant did not timely file his claim for benefits pursuant 
 
            to a hearing loss claim under section 85B.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANE E. BOESE,                :
 
                                          :        File No. 924677
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            DURANT FOUNDRY & MACHINE,     :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jane E. 
 
            Boese, claimant, against Durant Foundry & Machine, employer 
 
            (hereinafter referred to as Durant Foundry), an uninsured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on September 29, 1989.  On December 18, 
 
            1990, a hearing was held on claimant's petition and the mat
 
            ter was considered fully submitted 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.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.  It 
 
            should be noted that although the undersigned excluded 
 
            defense exhibits A & B from the evidence at hearing, a 
 
            review of those documents which were received as an offer of 
 
            proof indicates that their receipt into the evidence would 
 
            not have changed the outcome of this decision.
 
            
 
                 According to the prehearing report, the parties stipu
 
            lated that claimant's rate of weekly compensation, if bene
 
            fits are awarded, is $130.78 per week.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether an employer-employee relationship existed 
 
            between claimant and Durant Foundry at the time of the 
 
            alleged injury;
 
            
 
                  II.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                  IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the occurrence and extent of the 
 
            injury and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant was employed by Durant Foundry for approxi
 
            mately 52 days prior to the work injury as a grinder.  
 
            Claimant was given a large belt grinder which required the 
 
            use of both of claimant's hands to grind surfaces of large 
 
            and small parts for an entire work week working constantly 
 
            eight hours per day, five days per week.  The grinder was 
 
            powered by an electric motor.  Claimant testified that due 
 
            to vibrations, the speed of the motor and the weight of the 
 
            grinder, claimant had to tightly grip the grinder throughout 
 
            the course of a day.  Soon after beginning this job on July 
 
            5, 1989, claimant began to experience numbness and tingling 
 
            in her left hand.  Eventually, this numbness and tingling 
 
            extended into the right hand.  Defense witnesses testified 
 
            that they observed claimant using wrist splints soon after 
 
            she began working for them.  Claimant denied that this 
 
            occurred immediately.  Claimant had no such problems before 
 
            the work injury.  This finding is based upon claimant's 
 
            uncontroverted testimony.  Claimant has not returned to 
 
            Durant Foundry since leaving on October 3, 1989.
 
            
 
                 On or about September 29, 1989, claimant received an 
 
            injury to both of her arms which arose out of and in the 
 
            course of her employment at Durant Foundry.  The injury was 
 
            diagnosed as a bilateral de Quervain's tenosynovitis and 
 
            overuse syndrome.  This injury extends to tissues beyond the 
 
            hand and into the arm.  Initially, claimant attempted to 
 
            treat her wrist problems herself.  Claimant continued work
 
            ing until September 29, 1989, at which time she sought pro
 
            fessional medical treatment.  Claimant left work on October 
 
            3, 1989, under the orders of her physicians.  Claimant's 
 
            primary treating physician was Leo A. Kulick, M.D., an 
 
            orthopedic surgeon.  Claimant was off work until Dr. Kulick 
 
            released claimant from his care on November 13, 1989.  
 
            Claimant reached maximum healing at that time according to 
 
            Dr. Kulick.  The medical treatment received by claimant con
 
            sisted of wrist splints and surgery on the left wrist.  The 
 
            causal connection of claimant's arm condition to her Durant 
 
            Foundry job is based upon the uncontroverted views of Dr. 
 
            Kulick as set forth in the evidence.
 
            
 
                 As a result of the work injury of September 29, 1989, 
 
            claimant has suffered a five percent permanent partial 
 
            impairment to the left arm.  The right wrist problems 
 
            resolved after claimant left work.  Also, claimant is perma
 
            nently restricted from repetitive activity of her left hand 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            involving gripping or vibration.  No physician has given an 
 
            impairment rating but claimant testified that she has lost 
 
            significant grip strength and endurance in her left hand.
 
            
 
                 As a result of the work injury of September 29, 1989, 
 
            claimant has incurred the expenses listed in exhibit 3.  
 
            These expenses are reasonable.  This finding is based upon 
 
            the fact that claimant has paid these expenses and there is 
 
            no contrary evidence offered by defense.
 
            
 
                                conclusions of law
 
            
 
                   I.  The employment status of claimant was never 
 
            really contested at hearing.
 
            
 
                  II.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose 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 
 
            circumstances of the injury.  See 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, 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 
 
            therein.
 
            
 
                 In the case sub judice, the injury came on gradually 
 
            over time and the date of injury is the approximate date 
 
            when claimant left her employment due to injury.  It is not 
 
            necessary that claimant prove her disability results from a 
 
            sudden unexpected traumatic event.  It is sufficient to show 
 
            that the disability developed gradually or progressively 
 
            from work activity over a period of time.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The McKeever 
 
            court also held that the date of injury in gradual injury 
 
            cases is the time when pain prevents the employee from con
 
            tinuing to work.
 
            
 
                 III.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or unsched
 
            uled.  A specific scheduled disability is evaluated by the 
 
            functional method; the industrial method is used to evaluate 
 
            an unscheduled disability.  Martin v. Skelly Oil Co., 252 
 
            Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When the 
 
            result of an injury is loss to a scheduled member, the com
 
            pensation payable is limited to that set forth in the appro
 
            priate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            industrial commissioner may equitably prorate compensation 
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a five percent permanent loss of use of her arm.  
 
            Based upon such a finding, claimant is entitled as a matter 
 
            of law to 14.5 weeks of permanent partial disability bene
 
            fits under Iowa Code section 85.34(2)(m) which is five per
 
            cent of 250 weeks, the maximum allowable for an injury to 
 
            the arm in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is also entitled to weekly ben
 
            efits for healing period under Iowa Code section 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 she was performing at the time of 
 
            injury; or, until it is indicated that significant improve
 
            ment from the injury is not anticipated, whichever occurs 
 
            first.  It was found that claimant left work on October 3, 
 
            1989, never to return to Durant Foundry.  However, it was 
 
            also found that claimant reached maximum healing on November 
 
            13, 1989.  Healing period benefits will be awarded accord
 
            ingly.
 
            
 
                 IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, all requested medical expenses were 
 
            found reasonable and causally connected to the injury.  All 
 
            will then be awarded.
 
            
 
                                      order
 
            
 
                 1.  Defendant, Durant Foundry, shall pay to claimant 
 
            fourteen point five (14.5) weeks of permanent partial dis
 
            ability benefits at the rate of one hundred thirty and 
 
            78/l00 dollars ($130.78) per week from November 14, 1989.
 
            
 
                 2.  Defendant, Durant Foundry, shall pay to claimant 
 
            healing period benefits from October 3, 1989 through 
 
            November 13, 1989, at the rate of one hundred thirty and 
 
            78/l00 dollars ($130.78) per week.
 
            
 
                 3.  Defendant, Durant Foundry, shall pay the medical 
 
            expenses listed in the prehearing report.  Claimant shall be 
 
            reimbursed for any the expenses paid by her.
 
            
 
                 4.  Defendant, Durant Foundry, shall pay accrued weekly 
 
            benefits in a lump sum.
 
            
 
                 5.  Defendant, Durant Foundry, shall pay interest on 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            weekly benefits awarded herein as set forth in Iowa Code 
 
            section 85.30.
 
            
 
                 6.  Defendant, Durant Foundry, shall pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33, including reim
 
            bursement to claimant for any filing fee paid in this 
 
            matter.
 
            
 
                 7.  Defendant, Durant Foundry, shall file activity 
 
            reports on the payment of this award as requested by this 
 
            agency pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Alan Hartsock
 
            Attorney at Law
 
            4th Flr Rock Island Bldg
 
            P O Box 4298
 
            Rock Island  IL  61204
 
            
 
            Mr. Lyle A. Chapman, Jr.
 
            Durant Foundry & Machine Company
 
            Durant  IA  52747
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                           Filed April 18, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JANE E. BOESE,                :
 
                                          :        File No. 924677
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            DURANT FOUNDRY & MACHINE,     :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICKY LEE HAYES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 924795
 
            BRUCE AND OTTO LORCH,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GRINNELL MUTUAL REINSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ricky 
 
            Lee Hayes, claimant, against Bruce and Otto Lorch, employer, 
 
            and Grinnell Mutual Reinsurance Company, insurance carrier, 
 
            as defendants.
 
            
 
                 Claimant sustained an injury on July 24, 1989, which 
 
            arose out of and in the course of his employment.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant and Bruce Lorch; claimant's exhibits 1 through 6; 
 
            and, defendants exhibits 1 through 21.  The matter came on 
 
            for hearing on April 16, 1992, at Storm Lake, Iowa.
 
            
 
                                      issues
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant's work-related knee injury, which 
 
            he sustained on July 24, 1989, caused claimant to suffer a 
 
            back condition; and,
 
            
 
                 2.  The amount of permanent partial disability claimant 
 
            has sustained to his right knee due to the work-related 
 
            injury on July 24, 1989.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having reviewed all the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Ricky Lee Hayes, was born on March 14, 1963.  
 
            At the time of the hearing, he was 29 years of age.
 
            
 
                 Claimant graduated from Lyons Public High School in 
 
            1982.
 
            
 
                 Since graduating from high school, claimant has held a 
 
            number of jobs, including work as a lifeguard; lawn care 
 
            provider; seed salesperson; assembly line worker at Iowa 
 
            Beef Processors; truck driver; and, other manual labor and 
 
            minimum wage paying jobs.
 
            
 
                 In 1988, he began working for the defendant employer, 
 
            Bruce and Otto Lorch, also known as Lorch Pork.  He was 
 
            hired as a breeding man, which required him to work outside 
 
            caring for hogs from farrow to finish.  He cared for 
 
            approximately 700 sows.
 
            
 
                 In July of 1989, claimant was working on a two person 
 
            crew baling straw.  He jumped off of the hayrack and as he 
 
            landed heard a pop in his right knee.  He notified his 
 
            employer, and continued to work.  That evening, claimant 
 
            received treatment from James Clemens, M.D., who treated 
 
            claimant with ice and Darvocet and referred claimant to J.P. 
 
            Michael Donohue, M.D., an orthopedic specialist located in 
 
            Storm Lake, Iowa (Defendants' Exhibit 7).
 
            
 
                 Claimant visited Dr. Donohue on July 26, 1989.  After 
 
            an examination, it was determined that claimant had 
 
            sustained a ligament strain and possible anterior cruciate 
 
            ligament medial meniscus injury.  Claimant was re-evaluated 
 
            approximately one week later, and displayed continued 
 
            swelling of the right knee and limited range of motion.  He 
 
            was scheduled to undergo an arthroscopic evaluation on 
 
            August 11, 1989.  During the procedure, Dr. Donohue 
 
            confirmed that claimant had sustained a complete tear of the 
 
            anterior cruciate ligament, and recommended reconstructive 
 
            surgery.  This was undertaken on August 30, 1989 (Def. Ex. 
 
            18).
 
            
 
                 Post-operatively, claimant undertook an aggressive 
 
            rehabilitation program.  Dr. Donohue released claimant to 
 
            return to restricted work activities on January 12, 1990.  
 
            Claimant was not to perform any twisting or "cutting" 
 
            activities with the right knee.  He was not rehired by the 
 
            defendant employer, and undertook a job search.  Dr. Donohue 
 
            predicted that claimant would have some permanent impairment 
 
            based upon damage to the ligaments and to the medial femoral 
 
            condyle, and that claimant would reach maximum medical 
 
            improvement one year after the reconstructive surgery (Def. 
 
            Ex. 18, p. 16).
 
            
 
                 Claimant continued to receive follow-up care from Dr. 
 
            Donohue, whose notes indicate that on April 2, 1990, 
 
            claimant had a sudden increase in pain and swelling in the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            right knee.  Claimant denied any specific injury, and Dr. 
 
            Donohue indicated claimant had sustained a breakdown of the 
 
            adhesions in the right knee (Def. Ex. 18, p. 13).
 
            
 
                 On April 13, 1990, it was recommended that claimant 
 
            reinstitute monitored rehabilitation.  Although claimant 
 
            displayed improvement on follow-up visits to Dr. Donohue, on 
 
            July 17, 1990, he reported an increase in pain and 
 
            discomfort with the right knee.  Dr. Donohue recommended 
 
            continued strengthening exercises and avoidance of stressful 
 
            activities of the knee, but no further treatment.  He 
 
            recommended that claimant obtain a second opinion, and 
 
            claimant proceeded to see David Minard, M.D., in Omaha, 
 
            Nebraska.  Dr. Minard's notes indicate that on July 8, 1990, 
 
            claimant was walking in his yard when his right knee gave 
 
            out.  He consulted Dr. Minard on July 17, 1990, who 
 
            scheduled claimant for arthroscopic surgery (Def. Exs. 10 
 
            and 11).
 
            
 
                 Claimant returned to Dr. Donohue on August 7, 1990, and 
 
            reported a new problem, low back discomfort.  A physical 
 
            examination revealed tenderness over the lumbosacral joint, 
 
            with limited range of motion on forward flexion and 
 
            hyperextension.  Straight leg raising exams were negative, 
 
            and Dr. Donohue diagnosed a myofascial strain of the lumbar 
 
            spine.  Apparently, claimant asked Dr. Donohue whether the 
 
            back problem was caused by limping a change of gait, but Dr. 
 
            Donohue was unable to attribute the low back discomfort to 
 
            the right knee problem due to the length of time between 
 
            claimant's original knee surgery and the first complaint of 
 
            low back problems (Defendants' Exhibit 18, pages 6-7).
 
            
 
                 Dr. Donohue performed a final evaluation on August 15, 
 
            1990.  An examination of the knee revealed some loss of 
 
            range of motion of the right knee and stated that claimant 
 
            had reached maximum medical improvement.  Dr. Donohue stated 
 
            that the persistent discomfort experienced by claimant was 
 
            "most likely secondary to early degenerative changes 
 
            secondary to the osteochondral injury." (Def. Ex. 18, pp. 3-
 
            4)
 
            
 
                 On September 21, 1990, Dr. Donohue was of the following 
 
            opinion:
 
            
 
                    As you know, the patient sustained an injury to 
 
                 his knee on July 24, 1989.  Included in that 
 
                 injury were an osteochondral injury to the medial 
 
                 femoral condyle of his right knee as well as an 
 
                 acute rupture of his anterior cruciate ligament.  
 
                 The osteochondral fragments were removed 
 
                 arthroscopically and he subsequently underwent an 
 
                 anterior cruciate reconstruction.  Unfortunately, 
 
                 the patient continues to be symptomatic from what 
 
                 I believe is early degenerative changes following 
 
                 his significant injury to the weight-bearing 
 
                 surface of the distal femur.  He has also 
 
                 exhibited slight laxity in the anterior posterior 
 
                 plane consistent with slight stretching of his 
 
                 cruciate graft.  However, it would be my opinion 
 
                 that the majority of his symptoms are secondary to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 degenerative changes secondary to the 
 
                 cartilagenous [sic] injury.
 
            
 
                    Based on the findings on the last examination, 
 
                 it would be my opinion that the patient has 
 
                 sustained a 17% percent impairment of the right 
 
                 lower extremity....
 
            
 
                    With respect to future treatment, as I have 
 
                 previously stated, I believe that at a minimum the 
 
                 patient may require surgical removal of the 
 
                 stitches along the medial knee which have been 
 
                 bothersome for him.  The patient also has 
 
                 requested a second opinion and as a significant 
 
                 portion of his impairment from my observation 
 
                 appears to be secondary to degenerative changes at 
 
                 the site of his cartilage loss along the medial 
 
                 femoral condyle, it would be my opinion that a 
 
                 repeat arthroscopic examination to view this area 
 
                 as well as review the reconstruction site may be 
 
                 indicated at some point in the future.
 
            
 
            (Def. Ex. 12), pp. 1-2)
 
            
 
                 In February of 1991, claimant sought treatment from 
 
            Mark E. Wheeler, M.D., who took x-rays of claimant's right 
 
            knee.  The results showed a flattening of the medial femoral 
 
            condyle.  Dr. Wheeler felt claimant was symptomatic with 
 
            popping in the right knee and felt that an arthroscopy was 
 
            necessary.  He stressed that he felt claimant was 
 
            experiencing significant traumatic arthritis in the knee, 
 
            and recommended claimant undergo vocational rehabilitation 
 
            (Def. Ex. 14).
 
            
 
                 Claimant underwent surgery in April of 1991, and 
 
            progress notes from Dr. Wheeler indicate that claimant 
 
            continued to complain of pain and aching in the right knee.  
 
            His progress for the next several months remained unchanged, 
 
            and it was recommended that claimant be retrained in 
 
            sedentary type of work.  Examination of the right knee 
 
            revealed full range of motion with good ligamentous 
 
            stability.  Examination of his back revealed no areas of 
 
            tenderness.  Neurological examinations and straight leg 
 
            raising tests were negative (Def. Ex. 17, p. 3).
 
            
 
                 Eventually, claimant underwent arthroscopic surgery in 
 
            the left knee due to two or three "relatively large loose 
 
            bodies."  Claimant also underwent x-rays, a CT scan and a 
 
            myelogram of the low back and the results of these tests 
 
            showed that claimant had degenerative disc disease at the 
 
            L2-3 levels.  A back rehabilitation program was recommended 
 
            (Def. Ex. 17, pp. 1-2).
 
            
 
              
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury to his back, or an aggravation of a 
 
            preexisting condition of his back, on July 24, 1989.
 
            
 
                 Defendants admit that on July 24, 1989, claimant 
 
            sustained an injury to his right knee when he jumped off of 
 
            a hayrack while working for Bruce and Otto Lorch.
 
            
 
                 Approximately one and on-half years later, claimant 
 
            began experiencing back problems.  He believes these 
 
            problems are directly related to the right knee problems, 
 
            and asserts that due to a limp or change in his gait to 
 
            compensate for the right knee injury, he now suffers from 
 
            back problems.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on July 24, 1989, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 24, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 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, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 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).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 
            
 
                 Medical documentation reveals that claimant's first 
 
            complaints of back pain came in August of 1990.  Dr. Donohue 
 
            examined claimant's back, and based on his findings 
 
            diagnosed myofascial strain of the lumbar spine, etiology of 
 
            which was unknown.  Most notably, Dr. Donohue specifically 
 
            stated that he was unable to perform the opinion that 
 
            claimant's back pain or strain was caused by the original 
 
            right knee injury (Claimant's Exhibit 5, pp. 23-24).  And, 
 
            Dr. Donohue was unable to state that claimant's limp and 
 
            change of gait aggravated his preexisting back condition 
 
            (Cl. Ex. 5, p. 30).  Additionally, Dr. Donohue was unaware 
 
            of claimant's visits to a chiropractor for treatment of a 
 
            back problem due to a softball game incident (Cl. Ex. 5, P. 
 
            24; Def. Ex. 13).
 
            
 
                 The undersigned finds no evidence which persuades her 
 
            by a  preponderance of the evidence that claimant's back 
 
            problem is causally connected to the right knee injury.
 
            
 
                 The final issue to be addressed is the extent of 
 
            claimant's impairment to the right leg.
 
            
 
                 Although claimant argues that he is entitled to a 
 
            substantial award to compensate for an industrial 
 
            disability, claimant's injury is to a scheduled member.  He 
 
            is compensated pursuant to Iowa Code section 85.34(2)(o).
 
            
 
                 Claimant has been given two impairment ratings.  Dr. 
 
            Donohue assigned a 17 percent impairment and a 13 percent 
 
            impairment based on various examinations (Def. Ex. 12; Dev. 
 
            Ex. 18, p. 2).  However, Dr. Donohue's calculations to 
 
            arrive at the two different ratings remain unchanged.  Each 
 
            examination revealed that claimant's impairment is based on 
 
            2 percent loss of flexion; 10 percent arthritic changes; 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            and, 5 percent residual laxity.
 
            
 
                 The undersigned finds that claimant sustained a 17 
 
            percent permanent partial disability due to his work-related 
 
            accident.  He is entitled to 37.4 weeks of benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for thirty-seven point four (37.4) weeks 
 
            at the rate of two hundred eighty and 89/100 dollars 
 
            ($280.89), beginning September 21, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall be given credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Joseph L Fitzgibbons
 
            Attorney at Law
 
            108 n Seventh St
 
            P O Box 496
 
            Estherville IA 51334
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Mr Charles T Paterson
 
            Attorney at Law
 
            701 Pierce St  Ste 200
 
            P O Box 3086
 
            Sioux City IA 51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 5-1803.1
 
                                          Filed May 26, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICKY LEE HAYES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 924795
 
            BRUCE AND OTTO LORCH,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GRINNELL MUTUAL REINSURANCE   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-1803.1
 
            Claimant sustained a work injury to his right knee.
 
            Almost two years later, claimant developed back problems 
 
            which he related to the work injury.  No medical evidence 
 
            was submitted to establish the necessary causal connection 
 
            between claimant's right knee injury and his back condition.
 
            Claimant awarded benefits pursuant to the schedule; he was 
 
            denied benefits for the back injury.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARILYN SHAFFER,              :
 
                                          :
 
                 Claimant,                :      File No.  925034
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            FEDERAL EXPRESS,              :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              Statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Marilyn 
 
            Shaffer as a result of injuries to her back which occurred 
 
            on June 23, 1989.  Defendant admitted compensability for the 
 
            injury, paid weekly benefits and paid medical expenses.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on June 28, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 9 and 11, testimony 
 
            from claimant, Kent Jayne, Roger See and Judy Steenhoek.
 
            
 
                                      issue
 
            
 
                 The sole issue presented for determination is the 
 
            extent of claimant's entitlement to permanent partial 
 
            disability benefits under Iowa Code section 85.34(2)(u).
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Marilyn Shaffer, began work for employer on 
 
            March 12, 1984.  While performing work for employer on June 
 
            23, 1989, she injured her low back when she bent over to 
 
            pick up some packages and felt a sharp pain.  Claimant 
 
            underwent surgery for an L5-S1 disc herniation and was 
 
            discharged to return to work with a 10-pound work 
 
            restriction.
 
            
 
                 Employer offered claimant a temporary position in 
 
            December 1989 at $7.99 per hour as compared to her wage of 
 
            $10.40 per hour at the time of the injury.  Employer later 
 
            retracted its offer of work and placed claimant on a lay off 
 
            due to her work injury.  Employer failed to offer vocational 
 
            rehabilitation or further light duty after the lay off.
 
            
 
                 Claimant sought further employment and eventually 
 
            became employed with a medical supply sales company starting 
 
            January 14, 1991.  Her duties consist of answering 
 
            telephones, assisting customers and entering orders onto a 
 
            CRT.  Claimant, at the time of hearing, is still so employed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            at an hourly wage of $7.50.  Claimant testified that she is 
 
            actually salaried at a rate of $14,400 per year and works 40 
 
            hours per week.
 
            
 
                 The sole issue presented concerns the extent of 
 
            claimant's entitlement to industrial disability.
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, experience, 
 
            permanent impairment, work restrictions, wage loss and 
 
            employer's offer of work.
 
            
 
                 At the time of injury, claimant was age 35 and a high 
 
            school graduate.  She has no post-high school training and 
 
            employer offered none through vocational rehabilitation 
 
            subsequent to the injury.
 
            
 
                 Claimant's work experience consists primarily of 
 
            factory production work and heavy labor work.  Claimant is 
 
            now precluded from performing most of the prior work for 
 
            which she has experience due to the 10-pound lifting 
 
            restriction.
 
            
 
                 Claimant's permanent impairment ratings were 10 
 
            percent, 17 percent and 35 percent.  William R. Boulden, 
 
            M.D., rated the injury at 10 percent and found the L5-S1 
 
            disc to be work related.  He further stated that the L4-5 
 
            disc was not work related and actually preexisted the June 
 
            23, 1989, injury (exhibit 19, page 12).  Dr. Boulden's 
 
            opinion with respect to the L4-5 disc is found to be correct 
 
            in that claimant had experienced prior bouts with back pain.  
 
            
 
                 However, prior to the injury, claimant was never 
 
            permanently restricted from work due to the back pain.  
 
            Therefore, apportionment is not appropriate.
 
            
 
                 Thomas Bower, L.P.T's 17 percent rating and Rodney 
 
            Johnson, M.D.'s 35 percent rating are not totally 
 
            disregarded.  They are simply given less weight as they 
 
            appear to base their ratings on preexisting conditions and 
 
            upon more subjective complaints.
 
            
 
                  Claimant's work restriction is generally described as 
 
            no lifting over 10 pounds.  This lifting restriction 
 
            prevents claimant from performing most of the manual labor 
 
            jobs she had with employer.  Her prior jobs required lifting 
 
            of up to 75 pounds.  The lifting restriction excludes 
 
            claimant from a significant segment of the job market for 
 
            which she has training and experience.
 
            
 
                 Current earnings is also evidence of industrial 
 
            disability.  If claimant had not been injured and had 
 
            remained with employer at the same job, she would be earning 
 
            over $11 per hour.  After the injury, employer offered light 
 
            duty work at the rate of $7.99 per hour until her lay off.  
 
            Claimant now earns the equivalent of $7.50 per hour with a 
 
            reduction in fringe benefits.  Claimant has sustained a 
 
            significant loss of actual earnings based upon her wage 
 
            history.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Employer conduct with respect to the offer of work 
 
            after an injury is also to be considered.  Employer did 
 
            offer work after the injury for a short period of time.  
 
            However, employer then imposed a lay off upon claimant and 
 
            failed to make any effort to locate alternate work which fit 
 
            her work restriction.  Employer brought forth testimony that 
 
            claimant could bid into other jobs within the company.  
 
            However, no such jobs were available in the Des Moines area 
 
            nor does the evidence support a finding that suitable work 
 
            was available in Iowa.  It is found that employer made no 
 
            effort, after the lay off, to locate alternate work either 
 
            inside the company or otherwise.
 
            
 
                 Based upon a review of the entire record, it is found 
 
            that as a result of the June 23, 1989, injury, claimant has 
 
            sustained a significant loss of access to the job market for 
 
            which she has training and experience.  It is also found 
 
            that claimant has sustained a very significant loss of 
 
            actual earnings.  It is also found that employer failed to 
 
            make a good faith effort to re-employ or offer vocational 
 
            rehabilitation.
 
            
 
                 Having considered all the material factors it is found 
 
            that claimant sustained 55 percent industrial disability as 
 
            a result of the June 23, 1989, injury to her low back.  
 
            
 
                                conclusions of law
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 A defendant employer's refusal to give any sort of work 
 
            to a claimant after he suffers his affliction may justify an 
 
            award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980).
 
            
 
                 Upon considering all the material factors, it is found 
 
            that the evidence in this case supports an award of 55 
 
            percent permanent partial disability which entitles the 
 
            claimant to recover 275 weeks of benefits under Iowa Code 
 
            section 85.34(2)(u).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendant is to pay to claimant two hundred 
 
            seventy-five (275) weeks of permanent partial disability at 
 
            the rate of two hundred eighty-four and 30/100 dollars 
 
            ($284.30) per week commencing February 6, 1990.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jim Lawyer
 
            Attorney at Law
 
            1200 35th St. STE 500
 
            West Des Moines, Iowa  50265
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803
 
                      Filed July 2, 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            MARILYN SHAFFER,    :
 
                      :
 
                 Claimant, :      File No.  925034
 
                      :
 
            vs.       :
 
                      :  A R B I T R A T I O N
 
            FEDERAL EXPRESS,    :
 
                      :      D E C I S I O N
 
                 Employer, :    
 
                 Self-Insured,  :      
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant, age 35, with L5-S1 surgery, a 10 percent to 35 
 
            percent impairment, 10-pound lifting restrictions, high 
 
            school education, heavy labor work experience, no offer to 
 
            re-employ by employer and no vocational rehabilitation found 
 
            55 percent industrially disabled.
 
            Claimant earned $10.40 per hour at the time of injury and 
 
            now earns $7.50 per hour.
 
            
 
 
 
 
           
 
           
 
           
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
         
 
SHERRI K. MOREHOUSE,   
 
         
 
     Claimant,       
 
         
 
vs.             
 
                                     File No. 925056
 
BLUE STAR FOODS,       
 
                                  A R B I T R A T I O N
 
     Employer,       
 
     Self-Insured,                   D E C I S I O N
 
         
 
and             
 
         
 
SECOND INJURY FUND OF IOWA,     
 
         
 
     Defendants.     
 
___________________________________________________________
 
                 STATEMENT OF THE CASE
 
 
 
This case came on for hearing on October 21, 1993, at Council 
 
Bluffs, Iowa.  This is a proceeding in arbitration wherein 
 
claimant seeks compensation for permanent partial disability 
 
benefits as a result of an alleged injury that occurred on 
 
July 20, 1989.  The record in the proceedings consist of the 
 
testimony of the claimant; claimant's daughter, Jennifer 
 
Morehouse; Susan Logan; joint exhibits 1 through 17; and, Second 
 
Injury Fund's exhibits A through C.
 
 
 
                           ISSUES
 
 
 
The issues for resolution are:
 
 
 
1.  Whether an injury arose out of and in the course of 
 
claimant's employment on July 20, 1989, as to claimant's 
 
right leg;
 
 
 
2.  Whether there is a causal connection as to claimant's right 
 
leg injury and the alleged July 20, 1989 injury;
 
 
 
3.  Whether there is a simultaneous bilateral injury to 
 
claimant's right and left legs on July 20, 1989; and,
 
 
 
4.  Whether claimant is entitled to Second Injury Fund benefits.
 
 
 
                       FINDINGS OF FACT
 
 
 
The undersigned deputy, having heard the testimony and considered 
 
all the evidence, finds that:
 
 
 
Claimant testified in person and also through a deposition taken 
 
on September 9, 1992, represented by claimant's exhibit 17.
 
 
 
The Second Injury Fund moved to strike or prevent claimant from 
 
testifying as to certain evidence concerning her schooling 
 
for a nursing home degree and her job search.  The Second Injury 
 
Fund had a standing objection concerning such testimony.  
 
The ruling on said objection was reserved until the time of this 
 
decision.  The Second Injury Fund's motions and objections are 
 
overruled.
 
 
 
Claimant is a 35-year-old high school graduate who received an 
 
associate degree in professional studies and was able to transfer 
 
some courses to Metro College in which she was taking a nursing 
 
home administration program she began in September 1990, full 
 
time, and expected to graduate in the spring of 1993.  She was not 
 
working while going to school full time.  She said she was an "A" 
 
student while in school.  Claimant indicated she could not 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 2
 
 
 
 
 
complete her nursing home administration program and at the time of 
 
her hearing was no longer in the program nor was she going to 
 
school.  She said she needed six months at 40 hours per week practice 
 
in a nursing home to complete her degree of programs and contends 
 
she was unable to do this practice aspects because of her condition.  
 
She contends her knees would not allow her to do it.  She contends 
 
no one explained the physical demands of the nursing home 
 
administrator.  Claimant indicated that she first knew of these 
 
conditions about one and oneéhalf years after she began the course 
 
work when they started setting out certain conditions of practicing.
 
 
 
Claimant began working for defendant employer on March 19, 1984, and 
 
said she had no trouble with her left or right knee at that time.  
 
Claimant described the nature of her work with defendant employer 
 
which was as a general laborer on the line.  She stood doing her 
 
job, weighed meats, etc.  The floor she stood on was concrete.
 
 
 
Claimant testified she injured her left knee on July 18, 1985, 
 
when she fell over a cement block.  She had arthroscopy surgery 
 
on her left knee and the doctor gave her a permanent partial 
 
impairment of 5 percent and claimant was paid workers' compensation 
 
by defendant employer because of that injury.  Claimant said she 
 
continued to have left knee problems between the surgery and up 
 
to her July 20, 1989 alleged injury.  Claimant said she had no 
 
right knee problems from 1985 to July 1989.  Claimant described 
 
how she injured herself on July 20, 1989.  She said she was 
 
moving an ice tank full of sauce while she was operating the sauce 
 
line and in the process of turning a corner with the ice tank, 
 
she slipped on something and lost control of the ice tank and 
 
wound up being stuck between the ice tank and a pallet full of 
 
shrink wrap.
 
 
 
At the hearing, she indicated that her left knee hurt.  She said 
 
she had difficulty walking and favored the left leg a lot, thereby, 
 
putting weight on the right side.  She said her knee became worse 
 
and in September 1989, the doctor did an arthroscopy on the left 
 
knee.  She said that after this surgery, most of her weight then 
 
was placed on her right leg and she told the doctor the right 
 
leg was getting worse.
 
 
 
On October 19, 1989, claimant said she had bilateral knee surgery.  
 
She said she had a slow recovery and couldn't squat.  She 
 
returned to light duty in November 1989 and indicated her knees 
 
were still sore and she was afraid of the plant environment 
 
as the floor were often wet and slippery.  Claimant contends 
 
that the company did not sufficiently accommodate her or that 
 
her job was such that she still had to get up and down.  She said 
 
she made an effort but finally quit on April 16, 1990.  At the 
 
time she quit, claimant indicated in her deposition that she was 
 
working part-time for BQC Tapes and that she did that job 
 
full-time after quitting defendant employer and was making $5 
 
per hour putting together CDs.  She then left that employment 
 
to go to school.  She acknowledged that she probably would still 
 
be working there if they still had a job available if she hadn't 
 
quit to go to school.  (Joint Exhibit 17, page 5)
 
 
 
In claimant's deposition it appeared that the employer was attempting 
 
to work her back into what she was doing before or at least 
 
attempting to accommodate her.  She was on the second shift at 
 
that time and the plant attempted to accommodate her and it 
 
appeared she wanted to be on the first shift which would be the 
 
day shift and which was a shift she was originally on at the 
 
time of her alleged injury.  Claimant then indicated that she was 
 
tired of the hassle and had been there six years and had had 
 
enough and that is when she quit. (Jt. Ex. 17, p. 14)
 
 
 

 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 3
 
 
 
 
 
Claimant related the current problem she is having which includes 
 
not being able to stand for a long period of time or sitting for 
 
over an hour or so and she can now walk only three or four 
 
blocks.
 
 
 
Claimant was then asked as far as what jobs she looked for and 
 
as indicated earlier there was an objection to this line of 
 
testimony by the Second Injury Fund because as per Second Injury 
 
Fund's exhibit A, interrogatory No. 28, they asked for claimant's 
 
job seeking and at that time, apparently around January 1992, 
 
when she answered her interrogatories, she indicated she had worked 
 
for defendant employer until May 1990 and quit to start school.  
 
 
 
The Second Injury Fund's objection was basically that there was no 
 
updating of her interrogatories to show or give the Second Injury 
 
Fund any indication of where she attempted to become employed or 
 
what jobs she sought.  The Fund understood she hadn't been seeking 
 
any jobs.  They felt at a disadvantage and moved to strike any 
 
testimony as to any job seeking evidence.  As indicated earlier, 
 
the motion was overruled.  The undersigned might note that he 
 
was not impressed with the alleged job search or any effort 
 
claimant made.
 
 
 
Claimant related one of the reasons she went back to school was 
 
that she understood that a graduate from the nursing home and 
 
administration program could earn $20,000 to $25,000 per year and 
 
with experience could earn up to $40,000, and this type of job 
 
would get her out of the production industry.
 
 
 
Jennifer Morehouse, claimant's 17-year-old daughter, testified 
 
she has lived with her mother since July 20, 1989, and that she 
 
now has to help her out more than before.  She indicated she 
 
scrubs the floors, does all the heavy work and cleaning, washes 
 
the dishes, and takes care of her mother when she is not feeling 
 
well.  She indicated that before July 20, 1989, claimant could 
 
go up and down the stairs and did not need a brace to support her 
 
knee.  She said that she and her mother used to ride bicycles, 
 
go for long walks, went bowling and dancing at church.  She said 
 
she doesn't dance anymore or cannot do what she used to do.
 
 
 
Susan Logan testified that she has known claimant for 13 years 
 
and is her good friend.  She is 33 years of age.  She indicated 
 
she visits claimant at her home and has noticed changes.  She 
 
said that she and claimant used to go dancing in 1980 and 1982 
 
and lived together in 1984 when claimant had her first injury.  
 
She said she didn't live with claimant at the time of her July 
 
20, 1989 injury but indicated claimant's left knee would go 
 
out and she and claimant's daughter would have to catch claimant.  
 
She said she used to bowl with claimant but they don't do it 
 
anymore nor do they walk or ride bicycles.
 
 
 
Although there is testimony and evidence that would indicate 
 
that pursuant to the July 20, 1989 alleged injury that there 
 
may have been injury to the knees, but the greater and overwhelming 
 
evidence as reflected in claimant's exhibits 1 through 5 show 
 
that claimant's first complaints were really to her left knee and 
 
that was where the treatment was taking place.  This conclusion 
 
seems to be summed up in the October 18, 1990 letter of Louis 
 
F. Tribulato, M.D (Jt. Ex. 1(a)), in which he indicated that 
 
claimant did not mention pain in her right knee when he first 
 
saw her and that it was only after arthroscopic surgery on 
 
her left knee that she started complaining of pain in the right 
 
knee and this at the time was attributed to favoring the left 
 
knee and putting additional weight and stress on the right knee.  
 
The record shows claimant's first surgery on her left knee was 
 
September 6, 1990.  Although there were some underlying 
 

 
 
 
 
 
MOREHOUSE V.BLUE STAR FOODS
 
PAGE 4
 
 
 
 
 
problems of claimant's right knee that were ultimately determined, 
 
the doctor opined that this condition was aggravated and was 
 
made symptomatic as a result of claimant favoring her left knee 
 
and therefore the right knee symptoms were due to problems 
 
with the left knee which required her to favor her left knee 
 
and put more weight on her right knee.  Although he indicated 
 
the basic pathology was not caused by the work-related injury, 
 
the basic pathology that she had in her right knee was 
 
apparently symptomatic prior to the injury to the left knee 
 
and was made symptomatic as a result of favoring her left knee.  
 
He therefore opined that the impairment to claimant's right 
 
knee is related to the left.  The report of Jack A. McCarthy, 
 
M.D., (Jt. Ex. 2(a)) supports that claimant's initial injury 
 
was to her left knee.  There is no mention of her right knee 
 
on this August 17, 1989 report.
 
 
 
Joint exhibit 4(b) is the operative report of claimant's 
 
September 6, 1989 arthroscopy of her left knee.  Again, there 
 
is no indication of any problems with her right knee at that 
 
time.
 
 
 
Joint exhibit 5(a) is the October 19, 1989 hospital record in 
 
which claimant was admitted and prepared to have a bilateral 
 
retinacular release.
 
 
 
Joint exhibit 7(a) is the April 1, 1986 report of R. Michael 
 
Gross, M.D., in which he opined that claimant had a 5 percent 
 
permanent disability of the left knee as a result of her 
 
partial medial meniscectomy that she had on August 6, 1985.
 
 
 
Joint exhibit 7(e)(2) is the August 9, 1989 notes of Dr. McCarthy 
 
in which the history again given by the claimant reveals her 
 
contention that she injured her left knee again.
 
 
 
Joint exhibit 10 is an exhibit that includes the interview 
 
and data concerning claimant receiving vocational rehabilitation 
 
benefits and various grants and reflects within said document 
 
claimant's authorization and help in going to school to get her 
 
professional studies degree and nursing home administration 
 
degree from Metropolitan Community College.  On page 5 of said 
 
exhibit under the date of January 27, 1992, it indicates that 
 
claimant had a 3.6 grade average and that she was taking 
 
several classes at the present time and that the combination of 
 
classes would allow her to get the two degrees.  It further 
 
indicated that claimant was not able to get a practicum that 
 
semester and therefore would be graduating a year later than 
 
anticipated as a practicum is only offered in the winter term.  
 
Page 6 of said report of the date of July 2, 1992 indicates 
 
claimant planned to graduate in May of 1993 and has an overall 
 
grade point average of 3.5.
 
 
 
The undersigned does not know why joint exhibit 12 was submitted 
 
as an exhibit.  It has no bearing on this case and does not 
 
help decide any dispute.
 
 
 
The undersigned notes that the Second Injury Fund's exhibits B 
 
and C are identical to joint exhibits 15 and 16, respectively.  
 
The undersigned does not know why there is duplication 
 
particularly since at the beginning of the hearing he emphasized 
 
the fact he didn't want there to be any duplication.
 
 
 
Joint exhibit 16 or Second Injury Fund's exhibit C is a document 
 
that seems to indicate that claimant received a full duty 
 
release from work injury as of July 12, 1990.  This document 
 
is a self serving document and the undersigned sees no such medical 
 
release in the file.  The July 12, 1990 date is the date 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 5
 
 
 
 
 
claimant was terminated officially from her employment with 
 
defendant employer because of her voluntarily leaving work in 
 
April and not giving any indication she wanted to continue 
 
working.  The undersigned believes that the most recent status 
 
of claimant's restrictions or conditions as to what she can 
 
do are reflected in the April 19, 1990 report of Dr. Tribulato. 
 
(Jt. Ex. 1(c)(3)) in which the doctor indicated that he 
 
thought claimant should definitely avoid any work which required 
 
squatting or kneeling and no work which requires running, 
 
jumping or twisting of the knees.  She should also avoid hard 
 
and damp cements since this tends to aggravate symptoms 
 
claimant has.  It would appear from the record that the defendant 
 
employer did not have work for claimant that would prevent 
 
claimant from violating any of those conditions.  If defendant 
 
did, it doesn't seem like defendant employer made a very 
 
good effort to comply.  Likewise, it seems like claimant made 
 
no follow-up effort although she was interested in trying to 
 
work for defendant in some capacity as reflected in her 
 
November 22, 1989 letter. (Jt. exhibit 11) Claimant did 
 
return to work and worked for defendant employer until she 
 
quit in April 1990.  There is nothing in the record showing 
 
any follow-up by the claimant after April 16, 1990, but the 
 
record shows claimant was eventually interested in going to 
 
school and was working for a tape company voluntarily for $5 
 
versus the $7.10 she was earning in July of 1989.
 
 
 
The parties are arguing whether an injury to claimant's right 
 
leg arose out of and in the course of her employment on 
 
July 20, 1989.  It appears from the evidence that the 
 
undersigned has several choices.  Either that there was no 
 
injury to claimant's right leg or that a separate injury occurred 
 
to claimant's right leg on a date different than July 20, 
 
1989, or that there was a simultaneous bilateral injury to 
 
claimant's right and left leg on July 20, 1989, or there was an 
 
injury that was a sequela of claimant's July 20, 1989 work injury.
 
 
 
The undersigned finds that the much greater weight of evidence 
 
shows that claimant did not incur a simultaneous bilateral 
 
injury to her lower extremities on July 20, 1989.  Claimant 
 
contends that she suffered injuries to both knees on that date.  
 
If that is a fact, then the histories are devoid of any evidence 
 
of that for the most part and that the first indication of 
 
problems of the right knee was around October 1989 at which time 
 
claimant had a bilateral release on her right and left knee.  
 
Claimant is taking an alternative position which the undersigned 
 
believes is in fact the situation and that is that claimant's 
 
right leg problems are a sequela of her left knee work injury 
 
that occurred on July 20, 1989.
 
 
 
The greater weight of medical evidence shows that when claimant 
 
began having problems with her left leg pursuant to her July 
 
20, 1989 work injury, she was favoring that leg and it caused 
 
additional weight bearing on claimant's right leg.  This is 
 
supported by Dr. Tribulato.  It is also very understandable on 
 
how these things occur.  Claimant is a rather heavy weight 
 
individual.
 
 
 
The evidence shows that claimant was having no trouble of any 
 
consequence or nature with her right leg prior to July 20, 
 
1989, and although she might have had an underlying latant condition 
 
that can be and was in fact aggravated, the undersigned finds 
 
that any aggravation of any underlying condition that existed prior 
 
to July 20, 1989 was materially aggravated, lighted up and 
 
heightened by her July 20, 1989 work injury.
 
 
 
 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 6
 
 
 
 
 
It is undisputed that claimant had a 5 percent permanent impairment
 
to her left leg prior to July 20, 1989, and that permanency 
 
existed to that leg on that date.  The evidence shows that claimant 
 
has a 15 percent permanent impairment to her left leg and to her 
 
right leg, 5 percent of which impairment to her left leg 
 
preexisted from a prior injury in 1985.  The undersigned therefore 
 
finds that claimant's 15 percent impairment to her right leg 
 
and the 10 percent of the impairment to her left leg and the 
 
surgeries claimant had on the left leg in September 1989 and 
 
the bilateral release on October 19, 1989 were causally 
 
connected to claimant's July 20, 1989 work injury.  
 
 
 
The undersigned therefore finds that the defendant employer 
 
is liable to the claimant for 33 weeks of permanent partial  
 
disability benefits for the 15 percent permanent impairment 
 
to claimant's right leg and 22 weeks for the 10 percent permanent 
 
impairment caused to claimant's left leg by the July 20, 1989 
 
injury, amounting to 22 weeks, the total amount being 55 weeks 
 
for which defendant employer is liable to the claimant at the 
 
stipulated rate of $168.69.
 
 
 
The Second Injury Fund takes the position that there was a 
 
simultaneous bilateral injury and that therefore would leave 
 
them free of any liability.  Although as mentioned above, the 
 
undersigned found there wasn't a bilateral simultaneous injury 
 
to the left and right leg, the mere fact that there is a bilateral 
 
injury in addition to a prior qualifying first injury does not 
 
under the law of this agency free the Second Injury Fund from any 
 
liability.  The undersigned is only mentioning this because in the 
 
Second Injury Fund's brief it seemed to indicate there is no chance 
 
of finding any liability of any kind on the Second Injury Fund if 
 
you have a first injury to the left leg and then a subsequent 
 
bilateral simultaneously injury to the left and right legs.
 
 
 
The undersigned must now determine as to whether the Second Injury 
 
Fund has any liability.   Since claimant does have loss of 
 
5 percent permanent impairment of her left leg as a result of her 
 
first injury in 1985, and has incurred a second injury to her 
 
right leg as a result of a July 20, 1989 injury that has resulted 
 
in a 15 percent permanent impairment, and since both of the 
 
permanent disabilities as to the initial injury and the second 
 
injury exists as of the date of the hearing, the Second Injury 
 
Fund has some liability.
 
 
 
The claimant voluntarily quit work for defendant employer and 
 
it appears she did this mainly in order to seek through further 
 
education a degree in nursing home administration and a degree 
 
in professional studies.  Claimant was a good student and she 
 
pursued her education through the help of vocational rehabilitation 
 
and certain grants and other subsidies and welfare that helped 
 
her live during these period along with having received some 
 
workers' compensation benefits.  Claimant anticipated to 
 
substantially and economically enhance herself and had dreams of 
 
starting off with $25,000 to $30,000 in income and reaching 
 
ultimately with experience $40,000 to $45,000 in income versus 
 
$7.10 which is approximately what she was earning at the time she 
 
left defendant employer's employment and the $5 she was earning 
 
when working for a tape company prior to beginning school.
 
 
 
Somewhere along the line claimant's desire to complete her 
 
nursing home education program was aborted because claimant could 
 
not complete a practicum.  The undersigned is not sure from the 
 
evidence as to whether it is because the program couldn't be 
 
offered or claimant contends her injury prevents her from doing 
 
the practicum or applying for it.  It seems unbelievable that at 
 
the stage claimant began school and was taking the courses to 
 
attempt to complete this program which she anticipated completing 
 
no later than the spring of 1993 and actually had anticipated 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 7
 
 
 
 
 
completing sooner, she did not know the conditions or requirements 
 
for the program.  Claimant knew her physical capacities by that 
 
time or, at least, her contentions and it seems that proper inquiries 
 
could have been and should have been made by her plus it seems 
 
that the vocational rehabilitation people or whoever else may have 
 
aided her in getting all of the money and grants for this education 
 
should have had the program sufficiently outlined and should have 
 
known if claimant could complete it or not.  
 
 
 
The evidence is insufficient as far as the undersigned is 
 
concerned as to know the total picture concerning this.  
 
It is obvious the defendants, particularly Second Injury Fund, 
 
did not know that claimant wasn't going to be able to complete 
 
her nursing home administration program through the Metro Community 
 
College and seemed surprised at the hearing.  Claimant  then 
 
testified that she did try to find employment or jobs and sent 
 
out some resumes.  This, again, surprised the Second Injury Fund 
 
as they thought claimant was still getting her education.  
 
It was this testimony in these areas that caused the Second 
 
Injury Fund to raise their objections which were overruled.  
 
 
 
The undersigned will mention again that he was not impressed 
 
with claimant's testimony as to either looking 
 
for jobs or her contention that she send out resumes.  There is 
 
no clear evidence to whom she sent them or what type of job she 
 
was looking for.  The undersigned might therefore add that even 
 
though he overruled the Second Injury Fund's objections to 
 
testimony in the areas of claimant's education and stopping the 
 
same and claimed she made an attempt to look for jobs, the 
 
undersigned has given no weight to such evidence or testimony of 
 
claimant, therefore, resulting in no detriment to the Second 
 
Injury Fund.
 
 
 
The greater weight of evidence does show that claimant has been 
 
affected by her first and second injury and that she is unable 
 
to return to the work for which she was formerly performing 
 
for defendant employer at the time of her injury and also at the 
 
time that she quit work in April of 1990.  The undersigned 
 
believes that the defendant employer could have accommodated and 
 
might still be able to accommodate the claimant but claimant then 
 
took the choice of getting her education.  That was her voluntary 
 
choice.  Claimant then worked for awhile at $5 per hour for a 
 
tape company before beginning school full time.  The evidence would 
 
seem to indicate that claimant with her present situation may 
 
still find work in the range of $5 to $8 per hour.  Although 
 
education is never wasted, it appears that the education claimant 
 
had to be a nursing home administrator is of no value as to 
 
obtaining such position even though it may have given her some 
 
insights as to something else.  
 
 
 
The undersigned finds that claimant does have a loss of income 
 
as a result of her July 20, 1989 injury and the sequela to said 
 
injury.  The undersigned further finds that claimant is able to 
 
do some work and is not totally disabled as she contends.  The 
 
undersigned feels that claimant needs to be more motivated and 
 
that once this litigation ends, she may have more incentive to try 
 
to find a job.  Claimant must realize that she does have some 
 
permanent impairment so she will have aches and pains and that is 
 
why she is getting compensation for her impairments and any second 
 
injury benefits that may be allowed herein.  Claimant must go on 
 
with her life and be more motivated.  Claimant is young and has a 
 
good intellectual capacity as she was getting as high as a 3.6 
 
average at the Metro Community College being a full-time student.
 
 
 
Taking into consideration claimant's injuries; her present 
 
condition; her work experience; her intellectual abilities; her 
 
wages prior to injury and after injury; the location and severity 
 
of her injury; her age; any healing period which was in dispute; 
 
her motivation; and, functional impairment to her left and 
 
right lower extremities, the undersigned finds that claimant has 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 8
 
 
 
 
 
currently a 35 percent industrial disability which in and as 
 
itself would amount to 175 weeks.  Deducting from that amount 25 
 
weeks due to claimant's 5 percent permanent impairment to her 
 
left leg from the first injury in 1985 and 55 weeks which is 
 
the defendant employer's liability as a result of the July 20, 
 
1989 injury to claimant's left leg and the sequela to said injury 
 
occurring to claimant's right leg, the Second Injury Fund is 
 
liable to the claimant for 95 weeks of permanent partial 
 
disability benefits at the rate of $168.69 per week.
 
 
 
The parties stipulated that any disability benefits would 
 
begin April 6, 1990.  The defendant employer's liability for 
 
55 weeks of permanent disability benefits would end April 26, 1991, 
 
and the Second Injury Fund then would begin paying their 95 
 
weeks on April 27, 1991.
 
 
 
                      CONCLUSIONS OF LAW
 
 
 
Claimant has the burden of proving by a preponderance of the 
 
evidence that she received an injury on July 20, 1989, which 
 
arose out of and in the course of her employment. McDowell v. Town 
 
of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
 
 
The claimant has the burden of proving by a preponderance of 
 
the evidence that the injury of July 20, 1989, is causally 
 
related to the disability on which ?she now bases?her claim.  
 
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  
 
A possibility is insufficient; a probability is necessary.  
 
Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
73 N.W.2d 732 (1955).  The question of causal connection 
 
is essentially within the domain of expert testimony.  
 
Bradshaw v. Iowa Methodist 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, 261 Iowa 352, 154 N.W.2d 128.
 
 
 
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).
 
 
 
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.
 
 
 
Before the Second Injury Fund is triggered three requirements 
 
must be met.  First, the employee must have lost or lost the 
 
use of a hand, foot, leg or eye.  Second, the employee must sustain 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 9
 
 
 
 
 
another loss or loss of use of another member or organ through 
 
a compensable injury.  Third, permanent disability must exist as 
 
to both the initial injury and second injury.  See Allen v. The 
 
Second Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, 
 
Iowa Industrial Commissioner 15 (1980); Ross v. Service 
 
Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa Indus. 
 
Comm'r 273 (1979).
 
 
 
The Fund is responsible for the difference between total disability 
 
and disability for which the employer at the time of the second 
 
injury is responsible.  Section 85.64.  Second Injury Fund v.
 
Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second Injury 
 
Fund v. John Deere Component Works, Iowa Supreme Court Case No. 
 
88-399, filed February 22, 1989.
 
 
 
It is further concluded that:
 
 
 
Claimant incurred an injury that arose out of and in the course 
 
of her employment to her left leg causing claimant to have a 10 
 
percent permanent impairment in addition to a 5 percent permanent 
 
impairment claimant previously had resulting from a 1985 injury, 
 
which impairment was still existing on the date of claimant's 
 
July 20, 1989 work injury.
 
 
 
Claimant incurred an injury to her right leg as a sequela 
 
to and as caused by the July 20, 1989 work injury causing claimant 
 
to have a 15 percent permanent impairment to her right leg.
 
 
 
Claimant did not incur a simultaneous bilateral lower extremity 
 
injury on July 20, 1989.
 
 
 
Claimant incurred a surgery in September 1989 to her left leg 
 
and a bilateral release to claimant's left and right leg in 
 
October of 1989, all caused by claimant's July 20, 1989 work injury.
 
 
 
Although claimant may have had an underlying latent potential 
 
condition in her right knee, claimant had no prior problems affecting 
 
her prior to July 20, 1989, and that the July 20, 1989 work 
 
injury and sequela to the same affecting claimant's right leg 
 
caused claimant's preexisting right leg condition to be 
 
materially and substantially aggravated, heightened and lighted 
 
up.
 
 
 
Defendant employer is liable to claimant for 55 weeks of 
 
permanent partial disability benefits as a result of claimant's 
 
July 20, 1989 work injury and sequela to said injury.
 
 
 
The Second Injury Fund is responsible to pay claimant 95 weeks 
 
of permanent partial disability benefits because of claimant 
 
having a 35 percent industrial disability caused by the July 
 
20, 1989 work injury and the first injury of July 1985, and 
 
that said sum is the net after deducting claimant's prior first 
 
injury impairment and defendant employer's obligation.
 
 
 
                             ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
Defendant employer shall pay unto claimant fiftyéfive (55) weeks 
 
of permanent partial disability benefits at the rate of one 
 
hundred sixtyéeight and 69/100 dollars ($168.69) beginning April 6, 
 
1990, and shall be given credit for twentyétwo (22) weeks of 
 
permanent partial disability previously paid.
 
 
 
Defendant Second Injury Fund shall pay unto claimant ninetyéfive 
 
(95) weeks of permanent partial disability benefits.  Said 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 10
 
 
 
 
 
benefits shall begin April 27, 1991, which is after defendant 
 
employer has paid its fiftyéfive (55) weeks.
 
 
 
Defendant employer shall pay accrued weekly benefits in a lump 
 
sum and shall receive credit against the award for weekly 
 
benefits previously paid.
 
 
 
Defendant employer shall pay interest on benefits awarded herein 
 
as set forth in Iowa Code section 85.30.  Interest accrues on 
 
the benefits the Second Injury Fund pays commencing the date 
 
1984).
 
 
 
In this case it was fairly debatable whether the injury caused 
 
any impairment and if so how much.  Dr. Boulden and Physical 
 
Therapist Bower questioned whether claimant was permanently 
 
disabled by finding that his pain complaints were not consistent 
 
with normal medical knowledge and experience and that claimant 
 
had not exhibited a reasonable effort to rehabilitate himself.  
 
Dr. McGuire was very critical of claimant on various points and 
 
concluded that he had no disability from this injury.  Dolan v.
 
Aid Insurance Company, 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar 
 
Meyer Foods Corp., file number 724378 (1989); Collins v. 
 
Hawkeye Moving & Storage, file number 873651 (Appealed and 
 
settled). 
 
 
 
Likewise, even though claimant denied he was having any problems 
 
with his low back on account of the two automobile accidents, 
 
defense counsel showed that this testimony was inconsistent 
 
with prior testimony of claimant (Tran. pp. 60-65).  Claimant's 
 
counsel admitted there were inconsistencies in his testimony 
 
(Tran. p. 65).
 
 
 
                     CONCLUSIONS OF LAW
 
 
 
Wherefore, based upon the foregoing and following principles 
 
of law, these conclusions of law are made.
 
 
 
That claimant sustained the burden of proof by a preponderance 
 
of the evidence that the injury of September 12, 1989 was the 
 
cause of permanent disability.  Bodish v. Fischer, Inc., 257 
 
Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 
 
236 Iowa 296 18 N.W.2d 607 (1945).
 
 
 
That claimant has sustained the burden of proof by a preponderance 
 
of the evidence that he sustained a 10 percent industrial 
 
disability to the body as a whole and is entitled to 50 weeks 
 
of permanent partial disability benefits.  Iowa Code section 
 
85.34(2)(u).  
 
 
 
That claimant sustained the burden of proof by  preponderance 
 
of the evidence that his healing period ended on May 31, 1991 
 
and that his permanent partial disability benefits should 
 
commence on June 1, 1991.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  
 
 
 
That claimant failed to sustain the burden of proof by a 
 
preponderance of the evidence that defendants delayed and failed 
 
to commence permanent partial disability benefits without 
 
reasonable or probable cause or excuse.  Iowa Code section 86.13.
 
 
 
                              ORDER 
 
 
 
THEREFORE, IT IS ORDERED:
 
 
 
That defendants pay to claimant fifty (50) weeks of permanent 
 
partial disability benefits at the stipulated rate of one 
 
hundred eighty-eight and 61/100 dollars ($188.61) per week in 
 

 
 
 
 
 
MOREHOUSE V. BLUE STAR FOODS
 
PAGE 11
 
 
 
 
 
the total amount of nine thousand four hundred and thirty and 
 
05/100 dollars ($9,430.05) commencing on June 1, 1991.
 
 
 
That the previous award of the previous deputy of healing period 
 
benefits for the period from January 4, 1990 through May 31, 
 
1991 would consume the credit for the twenty-one (21) and 
 
three-sevenths (3/7) weeks of workers' compensation benefits 
 
paid to claimant prior to hearing and cannot be used as a 
 
credit against this award.
 
 
 
That these benefits are to be paid in a lump sum.
 
 
 
That interest will accrue pursuant to Iowa Code section 85.30. 
 
 
 
That the costs of this action, including the cost of the 
 
attendance of the court reporter at hearing and the cost of the  
 
transcript, are charged to defendants pursuant to rule 343 
 
IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
 
 
That defendants file claim activity reports as requested by this 
 
agency pursuant to rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of December, 1993.
 
                    
 
                    
 
                              ______________________________
 
                              WALTER R. McMANUS, JR.
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. Delbert C. Binford
 
Attorney at Law
 
1200 Hub Tower
 
699 Walnut Street
 
Des Moines, IA  50309
 
 
 
Mr. Joseph M. Barron
 
Mr. Paul C. Thune
 
Attorneys at Law
 
Des Moines Bldg., Suite 700
 
405 Sixth Ave.
 
P.O. Box 9130
 
Des Moines, IA  50306-9130
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1100; 5-1108
 
                                           5-3202; 5-1803
 
                                           Filed December 15, 1993
 
                                           Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SHERRI K. MOREHOUSE,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 925056
 
            BLUE STAR FOODS,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-3202
 
            Found claimant incurred a right knee injury that arose out 
 
            of and in the course of her employment and was a sequela to 
 
            her July 20, 1989 left leg injury resulting in claimant 
 
            being awarded permanent partial disability from defendant 
 
            employer and permanent partial disability from Second Injury 
 
            Fund.
 
            
 
            5-1803
 
            Found claimant did not incur a simultaneous bilateral lower 
 
            extremity work injury.