Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ANNE MARIE VOGEL,   
 
                                            File No. 925720
 
                 Claimant, 
 
                                             A P P E A L
 
            vs.       
 
                                            D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   
 
                              
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 Defendant appeals from an arbitration decision awarding 
 
            claimant 40 percent permanent partial disability benefits.  
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing, claimant's exhibits 1, 2 and 3, and 
 
            defendant's exhibits A, B, C, D, E and F.  Both parties 
 
            filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendant states the issues on appeal as:
 
            
 
                 1.  The deputy industrial commissioner erred in finding 
 
            that an injury confined to the fingers is compensable by the 
 
            Second Injury Fund; and
 
            
 
                 2.  The deputy industrial commissioner erred in finding 
 
            that claimant's industrial disability was 40 percent.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The arbitration decision filed February 17, 1992, 
 
            adequately and accurately reflects the pertinent findings 
 
            and will not be (totally) reiterated here.  The following 
 
            additional findings are made, however.
 
     omical injury 
 
            to claimant's right hand was physically located in her index 
 
            and middle fingers.  He then concluded that the evidence did 
 
            not show any physiological injury in the metacarpus or 
 
            carpus of claimant's right hand.  The deputy then construed 
 
            section 85.64 to find that a loss of use of fingers or thumb 
 
            is in fact a loss of use of the hand.  Those findings and 
 
            that conclusion are not necessary in order to conclude that 
 
            claimant had a loss of use in the hand under the facts 
 
            presented.  
 
            
 
                 Physical Therapist Bower, in evaluating claimant, found 
 
            that claimant was unable to flex the metacarpal joint of 
 
            either her right index or right middle finger.  In Simmons, 
 
            the commissioner held that loss of flexion of the metacarpal 
 
            or knuckle joint resulted in loss of hand motion such that 
 
            the hand was impaired as a result of the injury.  The 
 
            rationale of Simmons is applicable to this claim and is 
 
            adopted.  It is expressly found and concluded that 
 
            claimant's loss of flexion in the metacarpal joints in her 
 
            right index and middle fingers is a condition that impairs 
 
            claimant's motion in her right hand such that claimant has 
 
            sustained a loss of use of the hand.  Claimant's loss of use 
 
            of the hand is a qualifying second member injury entitling 
 
            claimant to benefits from the Second Injury Fund.  
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                           
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 The Second Injury Fund of Iowa pay claimant 
 
            seventy-four (74) weeks of compensation for permanent 
 
            partial disability at the rate of one hundred twenty-one and 
 
            18/100 dollars ($121.18) per week payable as an accrued 
 
            amount in a lump sum on the date of filing of this decision.  
 
            
 
                 Defendant pay costs of this appeal, including the costs 
 
            of transcription of the arbitration hearing.
 
            
 
                 Defendant file claim activity reports pursuant to rule 
 
            343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Dahl
 
            Attorney at Law
 
            974 73rd Street, Suite 16
 
            Des Moines, IA  50312
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover Bldg.
 
            Des Moines, IA  50319
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                            3202
 
                                            Filed April 30, 1993
 
                                            Byron K. Orton
 
                       
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ANNE MARIE VOGEL,   
 
                                             File No. 925720
 
                 Claimant, 
 
                                               A P P E A L
 
            vs.       
 
                                             D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   
 
                              
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
            
 
            3202
 
            
 
                 Deputy affirmed and modified.
 
            
 
                 Rationale of Simmons v. Black Clawson Hydrotile, 
 
            Thirty-fourth Biennial Rep., Iowa Industrial Commissioner 
 
            313 (App. Decn. 1979), followed in finding that claimant's 
 
            inability to flex the metacarpal joint on either her right 
 
            index or her right middle finger resulted in impairment to 
 
            the hand such that claimant had a loss of use of the hand 
 
            which qualified as a second injury for purposes of 
 
            entitlement to Second Injury Fund benefits.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANNE MARIE VOGEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 925720
 
                                          :
 
            PAMECO MAIL SERVICE,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE FARM INSURANCE          :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration initially brought 
 
            by Anne Marie Vogel against her employer and its insurance 
 
            carrier as well as against the Second Injury Fund of Iowa. 
 
            Vogel entered into an agreement for settlement with full 
 
            commutation with the employer prior to hearing.  Under that 
 
            settlement, she was determined to have a 50 percent 
 
            permanent partial disability of the right hand for which she 
 
            was provided 90 weeks of compensation benefits.  It is noted 
 
            that, under section 85.34(2)(l), the loss of a hand provides 
 
            an entitlement to 190 weeks of compensation.  Fifty percent 
 
            of that amount would be 95 weeks rather than 90 weeks as 
 
            provided by the settlement which was approved by this 
 
            agency.  The agency file does not contain any explanation 
 
            for the apparent inconsistency in the settlement process.  
 
            The remaining claim to be determined by this decision is the 
 
            claim against the Second Injury Fund of Iowa.  The primary 
 
            issue to be determined is the claimant's entitlement to 
 
            permanent partial disability compensation from the Second 
 
            Injury Fund of Iowa.  An underlying issue is whether the 
 
            injury and its permanent disability is limited to the 
 
            claimant's fingers and, if so, whether that relieves the 
 
            Second Injury Fund from liability.  A second issue is 
 
            whether the Second Injury Fund receives credit for the full 
 
            90 weeks of permanent partial disability compensation paid 
 
            by the employer, even if the compensable value of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            scheduled injury is determined to be less than 90 weeks.
 
            
 
                 The case was heard at Des Moines, Iowa, on December 2, 
 
            1991.  The evidence in the proceeding consists of the 
 
            testimony from Anne Marie Vogel and Ada Jackson.  The record 
 
            also contains claimant's exhibits 1, 2 and 3 and defendants' 
 
            exhibits A, B, C, D, E and F.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Anne Marie Vogel is a 34-year-old woman who is a 1976 
 
            high school graduate.  She has subsequently taken classes in 
 
            math, English and secretarial skills through the area 
 
            community college.  Anne reported that, prior to the injury, 
 
            she could type up to 100 words per minute and was also quite 
 
            fast using a calculator.
 
            
 
                 Anne's work history is quite varied.  While in high 
 
            school, she performed repair and maintenance work on 
 
            apartments operated by her father.  The work included 
 
            activities such as painting, drywall and concrete work.  She 
 
            has more recently worked as an apartment complex manager.  
 
            While still in high school, Anne began a several-year term 
 
            of employment with the South Side Shopper newspaper.  She 
 
            performed a variety of functions including warehouse work, 
 
            labeling and finally as a camera technician.  She developed 
 
            film and performed ad layout, paste-up and composition for 
 
            the shopper publication.  Anne has also held a number of 
 
            other jobs including microfilming and fast food work.
 
            
 
                 Anne's physical ailments include anxiety attacks which 
 
            have afflicted her since high school.  They appear to be 
 
            reasonably well controlled by Zanex medication.  A part of 
 
            the anxiety disorder reportedly manifests itself by making 
 
            Anne unable to function adequately in stressful situations.
 
            
 
                 Anne severely lacerated her left foot while vacationing 
 
            in Florida in approximately 1980.  She has subsequently 
 
            undergone a series of surgical treatments for the foot with 
 
            results that are far less than optimal (claimant's exhibit 
 
            1, pages 35-53).  As indicated by physical therapist Thomas 
 
            W. Bower, she is unable to actively to move her big, second 
 
            and third toes.  The big toe overlaps the second causing a 
 
            loss of balance.  The foot is sensitive to cold.  Bower 
 
            rated her as having a 24 percent permanent impairment of the 
 
            left foot (claimant's exhibit 1, pages 25-27).
 
            
 
                 After completing a secretarial course in approximately 
 
            1986, Anne commenced employment with Pameco.  Initially, she 
 
            worked in data entry.  After leaving Iowa to manage 
 
            apartments in Arizona, she returned to Pameco and worked in 
 
            the warehouse area.  She reported difficulty with her foot, 
 
            but was able to accommodate and perform her work.  Within 
 
            that same time frame, she assisted her boyfriend in a 
 
            masonry business on weekends.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On July 20, 1989, Anne was operating a labeling 
 
            machine.  While cleaning it, another worker restarted the 
 
            machine causing Anne's right hand to become caught in the 
 
            machine.  She related that her hand was pulled into the 
 
            machine up to the first knuckles of two fingers and that a 
 
            bit of her thumb was taken into the machine.  She was seen 
 
            at the Mercy Hospital emergency room and diagnosed as having 
 
            a laceration of the index finger with a crush and fracture 
 
            of the middle finger of her right hand.  A one-half 
 
            centimeter laceration was noted on the distal phalanx on the 
 
            palmar aspect of the right index finger (claimant's exhibit 
 
            1, page 16).  Accordingly to neurologist Steven R. Adelman, 
 
            D.O., Anne injured the digital nerve in her index finger 
 
            (claimant's exhibit 1, page 9).  In early 1988, she 
 
            fractured her right thumb while playing softball 
 
            (defendants' exhibit D, page 21).
 
            
 
                 Anne testified at hearing that, as a result of her hand 
 
            injury, she is unable to perform activities such as data 
 
            entry, camera work or apartment maintenance.  She feels 
 
            that, due to the condition of her foot, she should not play 
 
            sports and should stay off it as much as possible.  She 
 
            requires special hand-made shoes.  She takes 
 
            anti-inflammatory medication whenever her foot swells, an 
 
            event which is not infrequent.  She is able to bend her 
 
            right thumb only a little.  She is unable to bend her index 
 
            finger.  The middle finger can bend only slightly and has 
 
            little feeling.  The index finger has no feeling.  At times, 
 
            pain will shoot up her right arm if she touches either of 
 
            the injured fingers in the wrong manner.
 
            
 
                 Des Moines orthopaedic surgeon Sinesio Misol, M.D., 
 
            rated the impairment of Anne's right hand at seven percent 
 
            in a report dated October 13, 1989.  Physical therapist 
 
            Bower has rated the right hand at 38 percent.  The 
 
            impairment ratings arrived at by Bower for Anne's left foot 
 
            and right hand were based upon extensive objective testing.  
 
            Those ratings are found to be correct.  Bower's tests and 
 
            impairment rating results are commonly relied upon by 
 
            orthopaedic surgeons.  His ratings are strongly corroborated 
 
            by the settlement entered into by the parties for the right 
 
            hand injury.  For these reasons, the rating from Dr. Misol 
 
            is rejected and that made by Bower is accepted.
 
            
 
                 At the present time, Anne is working as a maintenance 
 
            and cleaning person at a Des Moines bar.  Her hours have 
 
            been reduced to where she currently works only one day per 
 
            week.  She is paid at the rate of $5.00 per hour.  Earning 
 
            at the rate of approximately $5.00 per hour is consistent 
 
            with the hourly rates claimant earned prior to the time she 
 
            injured her right hand.
 
            
 
                 Recently, Anne has received treatment for her hand from 
 
            Jose V. G. Angel, M.D.  Dr. Angel has found Anne to exhibit 
 
            slightly diminished strength and function with her right 
 
            hand.  He stated that she is unable to perform rapid, 
 
            repetitive activities requiring either strength or 
 
            dexterity.  He feels that her deficit is permanent and is 
 
            due to a combination of traumatic arthritis and neural 
 
            damage.  He feels that she should be able to perform light 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            activities with her right hand, including moderate lifting.  
 
            He stated that it is unlikely she will have sufficient 
 
            dexterity to perform typing, note taking or other repetitive 
 
            activities that require flexion and extension of her thumb 
 
            and index finger (claimant's exhibit 1, page 1).  The 
 
            recommendations from Dr. Angel are not directly 
 
            controverted.  They appear consistent with the impairment 
 
            rating found by therapist Bower and are accepted as being 
 
            correct.
 
            
 
                 Anne underwent a preliminary evaluation through the 
 
            Iowa Division of Vocational Rehabilitation.  She was 
 
            characterized as being severely handicapped on account of 
 
            her right hand and anxiety disorder.  The records do not 
 
            reflect that the vocational rehabilitation people were aware 
 
            of the problem with Anne's left foot (defendants' exhibit C, 
 
            page 4).  It was recommended that Anne receive a thorough 
 
            evaluation at the Iowa State Vocational Rehabilitation 
 
            facility, but she failed to respond to repeated 
 
            communications (defendants' exhibit C, pages 6 and 7).
 
            
 
                 Anne has typically worked to the satisfaction of her 
 
            former employers (defendants' exhibit E).  It is noted that 
 
            her resume which is found in defendants' exhibit E contains 
 
            grammatical errors.  This indicates that her written 
 
            communication skills are not particularly strong.
 
            
 
                 Anne therefore presents herself as a 34-year-old woman 
 
            who is unable to perform many of her past employments due to 
 
            the condition of her right hand as well as the condition of 
 
            her left foot.  She is further limited by her anxiety attack 
 
            problem.
 
            
 
                                conclusions of law
 
            
 
                 When the injury is a scheduled injury such as the one 
 
            in this case, Code section 85.64 entitles the claimant to 
 
            recover for all disability that was proximately caused by 
 
            the July 20, 1988, injury.  Second Injury Fund v. Neelans, 
 
            436 N.W.2d 355 (Iowa 1989); Second Injury Fund v. Mich Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1979).
 
            
 
                 The first issue to be addressed is whether the injury 
 
            is one which triggers Second Injury Fund liability.  It is 
 
            argued that, if the injury is limited to the fingers and 
 
            does not extend into the metacarpal bones in the palm of the 
 
            hand, the situation is one which does not subject the Fund 
 
            to liability.  Fellow deputy commissioners have so ruled as 
 
            shown in the cases cited by the Fund.  The pertinent members 
 
            of the body mentioned in section 85.64 include the hand, 
 
            arm, foot, leg and eye.  There is no mention of fingers or 
 
            toes.  A close review of the record of this case shows that 
 
            the left foot injury was not limited anatomically to the 
 
            toes.  It clearly is one which can be a basis for Second 
 
            Injury Fund liability.  Claimant has complaints involving 
 
            her thumb, but those complaints are not shown to be a result 
 
            of the 1988 work place injury.  They appear to be more 
 
            likely related to the softball injury which fractured the 
 
            thumb.  The anatomical injury to claimant's right hand is 
 
            found to be physically located in her index and middle 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            fingers.  The evidence does not show any physiological 
 
            injury in the metacarpus or carpus of her right hand.
 
            
 
                 This finding triggers a need to perform statutory 
 
            construction of section 85.64.  It is generally presumed 
 
            that statutory words are used in their ordinary and usual 
 
            sense with the meaning commonly attributed to them.  
 
            American Home Products Corp. v. Iowa State Bd. of Tax 
 
            Review, 302 N.W.2d 140 (Iowa 1981).  One must look to the 
 
            object to be accomplished, the mischief to be remedied, or 
 
            the purpose to be served, and place on the statute a 
 
            reasonable or liberal construction which will best effect, 
 
            rather than defeat, the legislature's purpose.  City of 
 
            Mason City v. Public Employment Relations Bd., 316 N.W.2d 
 
            851, 854 (Iowa 1982).  The policy is to liberally construe 
 
            workers' compensation statutes in favor of the worker.  
 
            Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 
 
            1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 
 
            (Iowa 1980).  The Workers' Compensation Act is to be 
 
            construed to provide benefits to all who can fairly be 
 
            brought within its coverage.  Usgaard v. Silver Crest Golf 
 
            Club, 256 Iowa 453, 459, 127 N.W.2d 636, 639 (1964).  Its 
 
            beneficent purpose is not to be defeated by reading 
 
            something into it that is not there.  Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979).  Reference to 
 
            Webster's New World Dictionary, Third College Edition 
 
            (1988), at page 610, defines the hand as, "The part of the 
 
            human body attached to the end of the forearm, including the 
 
            wrist, palm, fingers and thumb."  Black's Law Dictionary, 
 
            Sixth Edition (1990), at page 715, states that the hand 
 
            includes the digits or fingers.  Stedman's Medical 
 
            Dictionary, Twenty-fourth Edition (1982), at page 833, 
 
            likewise includes the fingers as a part of the hand.  Gray's 
 
            Anatomy, (1974), at page 158, states, "The skeleton of the 
 
            Hand is subdivided into three segments--the Carpus or 
 
            wrist-bones; the Metacarpus or bones of the palm; and the 
 
            Phalanges or bones of the digits."  It is clear that all 
 
            references agree that the fingers are in fact a part of the 
 
            hand.  Stedman's Medical Dictionary defines finger as ". . . 
 
            one of the digits of the hand."  Webster's New World 
 
            Dictionary, at page 507, defines finger as ". . . any of the 
 
            five jointed parts projecting from the palm of the hand."  
 
            The references consistently consider fingers to be an 
 
            integral part of a hand.
 
            
 
                 The scheduled member system of section 85.34 provides 
 
            separate compensation benefits for losses of specified 
 
            fingers and the thumb.  It likewise provides specified 
 
            benefits when the loss is to the hand.  Under that scheduled 
 
            system, the loss of all fingers and the thumb provides 170 
 
            weeks of compensation while the complete loss of the hand 
 
            provides 190 weeks of compensation, an amount only slightly 
 
            more than what would be payable if all fingers were lost.  
 
            Under section 85.34(2), when the injury only affects a 
 
            finger, it is compensated as a loss of the finger, rather 
 
            than as a loss of part of the hand.  Section 85.34(2) does 
 
            not statutorily define a hand as something which has no 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            fingers.  It simply provides that, when the injury to the 
 
            hand affects only fingers, the employer's liability is to be 
 
            determined according to which finger or fingers were 
 
            disabled rather than according to the equivalent disability 
 
            of the hand.
 
            
 
                 It is noted that Dr. Misol and therapist Bower rated 
 
            the disability as a disability of the hand, even though 
 
            ratings can be made of fingers and the ratings appear to 
 
            have been based solely on the impairment of the fingers.  
 
            Nevertheless, they both apparently consider that disability 
 
            of fingers is a disability of the hand.  When one envisions 
 
            what is meant by the term "hand," the visual image which 
 
            appears includes the fingers and thumb, not merely the palm.  
 
            It is therefore concluded that, for purposes of Code section 
 
            85.64, the term "hand" includes the fingers and thumb.  A 
 
            person's hand functions primarily through the fingers and 
 
            thumb.  Any loss of use of the fingers or thumb is in fact a 
 
            loss of use of the hand.
 
            
 
                 For purposes of comparison, the term "arm" is also used 
 
            in Code section 85.34.  References to those same texts, 
 
            namely Webster's New World Dictionary, at page 74, Stedman's 
 
            at page 109, and Gray's at page 144, fail to include the 
 
            hand in the definitions of "arm" that are found.  This is a 
 
            further indication that, while the fingers are an integral 
 
            part of the hand for purposes of construction of this 
 
            statute, the hand is not included in the proper definition 
 
            of the arm.  It is therefore concluded that this case is one 
 
            in which liability of the Second Injury Fund exists.
 
            
 
                 When determining Second Injury Fund liability, the 
 
            total disability is evaluated industrially.  The employee is 
 
            evaluated taking into account all disabilities which exist.
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Anne has lost the ability to perform the clerical work 
 
            for which she was trained and for which she was apparently 
 
            well suited.  The condition of her foot limited her in some 
 
            occupations.  Most individuals, however, make their living 
 
            more through the use of their hands than they do through the 
 
            use of their feet.  Many jobs are performed from a seated 
 
            position but involve extensive use of the hands.  Likewise, 
 
            many jobs require use of the hands but do not require 
 
            repetitive hand use.  Anne's anxiety problem is difficult to 
 
            assess in terms of employability, but it does not appear as 
 
            though it was significantly limiting to her prior to the 
 
            1988 injury.  Most of the work for which she is trained and 
 
            suited does not appear to be the type of high stress work 
 
            which would be affected by the anxiety problem.  While Anne 
 
            is working at essentially the same hourly rate of pay as she 
 
            had experienced prior to this most recent injury, she has 
 
            experienced a significant loss of access to jobs for which 
 
            she was trained and well suited prior to this most recent 
 
            injury.  When all pertinent factors are considered, it is 
 
            determined that Anne Marie Vogel has a 40 percent permanent 
 
            partial disability as a result of the combination of her 
 
            injuries.  This tentatively entitles her to 200 weeks of 
 
            permanent partial disability compensation.
 
            
 
                 The compensable value of the preexisting scheduled 
 
            losses must be determined and deducted.  A 24 percent 
 
            impairment of the left foot carries a compensable value of 
 
            36 weeks.
 
            
 
                 The proper amount to be deducted for the hand injury is 
 
            not as readily ascertained.  The parties settled the case 
 
            based upon a 50 percent impairment rating which would have 
 
            provided 95 weeks of compensation.  Claimant was paid only 
 
            90 weeks of compensation under the settlement documents.  On 
 
            the other hand, the highest rating of permanent impairment, 
 
            the one found to be correct, was 38 percent, an amount which 
 
            provides a compensable value of 72.2 weeks.  The agency has 
 
            ruled that settlements entered into between the employee and 
 
            the employer are not determinative in cases involving the 
 
            Fund since the Fund is not a party to those settlements.  
 
            Northrup v. Tama Meat Packing, File No. 724196 (App. Decn., 
 
            March 19, 1990).  A literal reading of Iowa Code section 
 
            85.38 could be used to deny all credits; however, that 
 
            section makes reference to the employer not being entitled 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            to receive credit for payments from other sources.  It does 
 
            not disqualify the Second Injury Fund.  Double recoveries 
 
            are normally avoided.  Schonberger v. Roberts, 456 N.W.2d 
 
            201, 202 (Iowa 1990); Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988); Caylor v. Employer's Mutual Casualty Co., 337 N.W.2d 
 
            890 (Iowa App. 1983); Wilson Foods Corp. v. Cherry, 315 
 
            N.W.2d 756 (Iowa 1982).  It is concluded that the pro tanto 
 
            credit rule should be applied in this case.  It is the rule 
 
            which gives the liable party, in this case the Fund, credit 
 
            for the amount of settlements paid by others which exceeds 
 
            the other's actual share of the entire liability, in this 
 
            case the employer, against whom the claim has been made.  
 
            Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 181 (Iowa 
 
            1990).  Application of this rule therefore makes the Second 
 
            Injury Fund entitled to full credit for the 90 weeks of 
 
            benefits paid by the employer.  It is not entitled to 95 
 
            weeks of credit since the settlement is not binding on the 
 
            fund.  The evidence in the case shows the correct impairment 
 
            to be only 38 percent of the hand rather than 50 percent 
 
            which was stated in the settlement documents between the 
 
            claimant and the employer.  The Second Injury Fund receives 
 
            credit for the excess amount paid by the employer.
 
            
 
                 The compensable value which is to be deducted from the 
 
            200 week entitlement is therefore 126 weeks.  The liability 
 
            of the Fund is therefore 74 weeks.
 
            
 
                 More than 74 weeks have elapsed since the date that 
 
            weekly benefits were last payable by the employer.  Under 
 
            section 85.64, the payments from the Fund are to be 
 
            commenced ". . . after the expiration of the full period 
 
            provided by law for the payments thereof by the employer, 
 
            . . . ."  This means that, if paid promptly, the Fund should 
 
            have commenced weekly payments at the time the employer's 
 
            legal obligation for weekly payments ceased.  Under any 
 
            interpretation of the record, that occurred more than 74 
 
            weeks ago.  The Second Injury Fund is not liable for payment 
 
            of interest.  Second Injury Fund of Iowa v. Braden, 459 
 
            N.W.2d 467 (Iowa 1990).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the Second Injury Fund of 
 
            Iowa pay Anne Marie Vogel seventy-four (74) weeks of 
 
            compensation for permanent partial disability at the 
 
            stipulated rate of one hundred twenty-one and 18/100 dollars 
 
            ($121.18) per week payable in a lump sum effective on the 
 
            date of entry of this decision.  The total amount thereof is 
 
            eight thousand nine hundred sixty-seven and 32/100 dollars 
 
            ($8,967.32).
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against the Second Injury Fund of Iowa pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the Second Injury Fund of 
 
            Iowa file claim activity reports as requested by this agency 
 
            pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1704; 3202; 3203
 
                                               Filed February 17, 1992
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ANNE MARIE VOGEL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 925720
 
                                          :
 
            PAMECO MAIL SERVICE,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            STATE FARM INSURANCE          :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1704; 3202; 3203
 
            It was held that, for purposes of section 85.64, fingers are 
 
            an integral part of the hand and that, even though the 
 
            injury and disability may be limited to the fingers, such 
 
            nevertheless constitutes a loss of use of the hand which 
 
            triggers Second Injury Fund liability.  Cites Webster, 
 
            Stedman, Black and Gray.
 
            Where employer settled case for an amount greater than the 
 
            actual scheduled impairment, the Second Injury Fund was 
 
            entitled to credit for the amount by which the employer's 
 
            payments exceeded the actual compensable value of the most 
 
            recent scheduled injury.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            EUGENE M. ANDERSON,   
 
                      
 
                 Claimant,   
 
                        
 
            vs.         
 
                                           File Nos. 926111/974256
 
            MAYTAG COMPANY,       
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 27, 1994 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            Claimant's petition was timely filed under Iowa Code section 
 
            85.26(1).  Under the discovery rule, a claimant's date of 
 
            injury is that point in time when the claimant knows, or 
 
            should know, that the injury he or she has suffered is both 
 
            serious and work related.  Where a claimant has a prior, 
 
            nonwork-related condition that would lead a reasonable 
 
            person to believe the nonwork-related condition was the 
 
            source of the present symptoms, it is reasonable that the 
 
            claimant would not be held to know his or her condition was 
 
            work related until receiving medical advice that the present 
 
            condition was caused by work conditions and not the prior 
 
            nonwork-condition.  Meinhardt, Appeal Decision, February 26, 
 
            1993 (#916721).  Here, claimant had a prior arthritic 
 
            condition that may have accounted for his knee pain.
 
            Claimant testified that he felt pain on May 3, 1989, but 
 
            could not identify a specific incident that might have 
 
            caused the pain.  Claimant's pain was in a different knee 
 
            than the knee in which he had previously experienced 
 
            arthritic pain, and claimant testified that the pain was of 
 
            a different type.  Although this might under other scenarios 
 
            have put claimant on notice that his knee pain was not due 
 
            to his arthritis, claimant was immediately given medical 
 
            advice by the defendants' physician assistant that he was 
 
            not injured.  Shortly thereafter, Dr. McBride specifically 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            advised claimant his pain was due to his arthritis and that 
 
            no injury had occurred.
 
            It was only when claimant was referred to Dr. Bashara, a 
 
            specialist in orthopedic surgery, that claimant was given 
 
            medical advice that his knee condition was not due to his 
 
            arthritis, but rather due to work activity.  This occurred 
 
            on May 8, 1989.  Under the discovery rule, claimant was not 
 
            aware that a work injury occurred until May 8, 1989.  
 
            Claimant's petitions filed on May 7, 1991 were within two 
 
            years of this date and therefore comply with Iowa Code 
 
            section 85.26(1).
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
                                        ________________________________
 
                                        BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven Shindler
 
            Mr. Brent Cashatt
 
            Attorneys at Law
 
            1000 Equitable Bldg.
 
            Des Moines, Iowa 50309-3715
 
            
 
            Mr. Terry L. Monson
 
            Mr. Michael J. Eason
 
            Attorneys at Law
 
            100 Court Ave., Ste 600
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803; 2402
 
                                              Filed July 27, 1994
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            EUGENE M. ANDERSON,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File Nos. 926111/974256
 
            MAYTAG COMPANY,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANY,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            5-1803
 
            Nonprecedential, extent of disability case.
 
            
 
            2402
 
            Claimant had preexisting arthritis in his knees.  His work 
 
            injury involved an injury to the knee.  Although claimant 
 
            testified the pain was different than before and in a 
 
            different knee, he was told by the employer's physician and 
 
            by another doctor that his pain was due to his arthritis.  A 
 
            few days later, he was told by a third physician that he had 
 
            suffered a work injury.  Relying on Meinhardt, Appeal 
 
            Decision, February 26, 1993 (#916721), held on appeal that 
 
            where a claimant suffers a prior condition that would 
 
            reasonably account for his current pain or impairment, the 
 
            statute of limitations did not start to run under the 
 
            discovery rule until claimant was given medical advice that 
 
            his condition was the result of a new work injury and not 
 
            the preexisting condition.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         EUGENE M. ANDERSON,           :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :       File Nos. 926111
 
                                       :                 974256
 
         MAYTAG COMPANY,               :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         EMPLOYERS MUTUAL COMPANY,     :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                STATEMENT OF THE CASE
 
         
 
              This is a consolidated proceeding in arbitration brought by 
 
         Eugene M. Anderson, claimant, against Maytag Company, employer, 
 
         hereinafter referred to as Maytag, and Employers Mutual Insurance 
 
         Company, insurance carrier, defendants, for workers' compensation 
 
         benefits as a result of alleged injuries on May 3, 1989 and May 
 
         8, 1989.  On October 18, 1993, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.
 
         
 
              According to the hearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1. An employee-employer relationship existed between 
 
         claimant and defendant employer at the time of the alleged 
 
         injury.
 
         
 
              2.  Claimant is seeking temporary total or healing period 
 
         benefits only from January 9, 1991 through March 17, 1991 and 
 
         defendants agree that he  was not working at this time. 
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is a scheduled member 
 
         disability to the leg.
 

 
         
 
         Page   2
 
         
 
         
 
              4.  If permanent partial disability benefits are awarded, 
 
         they shall begin as of March 18, 1991.
 
         
 
              5.  At the time of injury, claimant's gross rate of weekly 
 
         compensation was $536.00;  he was married;  and, he was entitled 
 
         to 3 exemptions. Therefore, claimant's weekly rate of 
 
         compensation is $333.10, according to the industrial 
 
         commissioner's published rate booklet for this injury. 
 
         
 
              6.  It was stipulated that the providers of the requested 
 
         medical expenses would testify as to their reasonableness and 
 
         defendants are not offering contrary evidence.  The medical bills 
 
         submitted by claimant at the hearing are causally connected to 
 
         the left leg condition upon which the claim herein is based but 
 
         that the issue of their causal connection to a work injury 
 
         remains an issue to be decided herein.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of  employment; 
 
         
 
              II.  Whether or not the claim was timely filed under Iowa 
 
         Code section 85.26 or whether there was timely notice under Iowa 
 
         Code section 85.23;
 
         
 
              III. The extent of claimant's entitlement to disability 
 
         benefits; and,
 
         
 
              IV. The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
              
 
              A credibility finding is necessary to this decision as 
 
         defendants placed claimant's credibility at issue during cross 
 
         examination as to the nature and extent of the injury and 
 
         disability.   From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              Claimant worked for Maytag as an assembler from  August 3, 
 
         1964 until May 28, 1992 at which time he took early retirement 
 
         due to knee and heart problems.
 
         
 
              On or about May 3, 1989, claimant injured his left leg while 
 
         working at Maytag.   This injury arose out of and in the course 
 
         of his employment.  The injury consisted of a torn meniscus in 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         the left knee.  A sudden onset of pain occurred while twisting 
 
         his knee in his job duties at some time during the day.  This was 
 
         a specific traumatic event but claimant was not performing 
 
         anything specific at the time and had no idea at the time that 
 
         this injury occurred.  Claimant had prior right knee pain due to 
 
         preexisting arthritis unrelated to his job and claimant believed 
 
         at the time this pain was only arthritis.
 
         
 
              Claimant's belief that no injury occurred was in part based 
 
         upon the company physician assistant who concluded that there was 
 
         no injury and gave no diagnosis.  Claimant was referred to Donald 
 
         F. McBride, M.D., for evaluation and Dr. McBride concurred with 
 
         claimant and thought the problem was arthritis with no specific 
 
         injury.  Claimant was obese and this condition contributed to the 
 
         conclusion by claimant and his physicians at the time that there 
 
         was no compensable injury. 
 
         
 
              Dr. McBride referred claimant to a specialist, Jerome G. 
 
         Bashara, M.D., an orthopedic surgeon.  During his evaluation and 
 
         testing on May 8, 1989, Dr. Bashara concluded that claimant's 
 
         symptoms were not only arthritis but the result of a work injury 
 
         resulting in a torn meniscus and he recommended further testing.  
 
         
 
              The insurance carrier then transferred claimant's care to 
 
         another orthopedic surgeon, Scott B. Neff, D.O. Dr. Neff 
 
         disagreed with Dr. Bashara and indicated that claimant's problems 
 
         were not the result of injury, only degenerative arthritis.    
 
         Defendants then denied the compensability of the claim.  
 
         
 
              Over the next two years claimant continued to have 
 
         difficulties and eventually returned to Dr Bashara.  On January 
 
         9, 1991, Dr Bashara after confirming his original diagnosis of 
 
         meniscus tear surgically repaired the injury.  Claimant returned 
 
         to work on March 19, 1991.  It is found that the original 
 
         physician's assistant and Dr. McBride misdiagnosed the condition.  
 
         This misdiagnosis lead claimant to believe that there was no 
 
         injury or compensable claim until May 8, 1991.
 
         
 
              It is specifically found that claimant was not aware of the 
 
         presence of an injury or its probable compensable nature until 
 
         May 8, 1989 when he was first informed of the injury by Dr. 
 
         Bashara.  It is further found that claimant filed his petition 
 
         for benefits as a result of this work injury on May 3, 1991, 
 
         within two years of the date claimant first became aware of the 
 
         injury and its probable compensable nature. It is also 
 
         specifically found that defendants had actual knowledge of the 
 
         potential compensability of this claim within 90 days of May 3, 
 
         1989.
 
         
 
              The work injury of May 3, 1989 is found to be a cause of a 
 
         19 percent permanent impairment to the leg.   This finding is 
 
         based upon the treating physician, Dr Bashara, the only physician 
 
         to correctly diagnose claimant's problems and the only physician 
 
         to rate claimant's impairment.
 

 
         
 
         Page   4
 
         
 
         
 
         
 
              With reference to the reasonableness of the requested 
 
         medical expenses in the hearing report, the parties stipulated 
 
         that the providers would testify as to their reasonableness and 
 
         defendants were not offering contrary evidence.  Therefore, it is 
 
         found that the expenses are reasonable.
 
         
 
                                 CONCLUSIONS OF LAW
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury arising 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, 
 
         generally, Cedar Rapids, Comm. Sch.  Dist. v. Cady, 278 N.W.2d 
 
         298 (Iowa 1979);  Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955).  An employer takes an employee subject 
 
         to any active or dormant health impairments. A work-connected 
 
         injury which more than slightly aggravates the condition is 
 
         considered to be a personal injury.  Ziegler v. U.S. Gypsum, 252 
 
         Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein.
 
         
 
              In the case sub judice, there is little dispute in the 
 
         record that the incident of the first onset of pain occurred on 
 
         May 3, 1989.
 
              
 
              II. Claimant must establish by a preponderance of the 
 
         evidence that he filed his claim with this agency within the 
 
         prescribed period of time allowed under Iowa Code section 85.26.  
 
         Such a showing is necessary to demonstrate this agency's subject 
 
         matter jurisdiction over the controversy and a condition 
 
         precedent to filing suit for compensation benefits under chapters 
 
         85, 85A, 85B and 86 of the Iowa Code.  Mousel v Bituminous 
 
         Material and Supply Co., 169 N.W.2d 763 (Iowa 1969). Lack of 
 
         subject matter jurisdiction may be raised in any manner at any 
 
         time  during the course of legal proceedings.  Qualley v Chrysler 
 
         Credit Corp, 261 N.W.2d 466 (Iowa 1978). An administrative or 
 
         judicial tribunal may raise the issue on its own motion at any 
 
         time.  see Uchtorff v Dahlin 363 N.W.2d 264 (Iowa 1985).  
 
         However, a statute of limitations defense may be waived, but 
 
         defendant must have intent to do so.  Carter v Continental 
 
         Telephone Company, 373 N.W.2d 524, 526 (Iowa 1985).  Generally, 
 
         claims for benefits must be filed within two years of the date of 
 
         injury or within three years of the date of a late payment of 
 
         weekly benefits.  There is no limitation on a claim for medical 
 
         benefits under Iowa Code section 85.27 if no denial of liability 
 
         is filed with this agency or if no notice of such denial is 
 
         served upon an injured worker within six months after the  
 
         commencement  of payment of  weekly benefits.
 
         
 
              An injured employee is permitted to file a workers' 
 
         compensation claim after the prescribed periods in Iowa Code 
 
         section 85.26 under the so called "discovery rule."  In Orr v 
 
         Lewis Central School District, 298 N.W.2d 256 (Iowa 1980), the 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         Iowa Supreme Court held that the two year period to file a claim 
 
         does not start to run until the worker discovers or in the 
 
         exercise of reasonable diligence should have discovered the 
 
         nature, seriousness and probable compensable character of the 
 
         injury.
 
         
 
              An employee may provide information to an employer which 
 
         would satisfy the actual knowledge notice requirement of Iowa 
 
         Code section 85.23 without at the same time nullifying his right 
 
         to the benefits of the discovery rule.  Because the discovery 
 
         rule is based upon entirely different purposes and reasoning than 
 
         the notice requirement, the same set of facts may provide for a 
 
         different result under sections 85.23 and 85.26.  Dillinger v 
 
         City of Sioux City, 368 N.W.2d 176, 180 (Iowa 1985).  At a time 
 
         when the employee did not know the probable compensable nature of 
 
         his injury, allowing him to later utilize the discovery rule to 
 
         delay the commencement of the section 85.26 limitation period, 
 
         the employer may have actual knowledge under section 85.23 of the 
 
         reasonable possibility of a claim. Id.
 
              
 
              Defendants have also raised the  issue of lack of notice of 
 
         the work  injury within 90 days from  the date of the occurrence 
 
         of the injury under Iowa Code section 85.23.  Although an 
 
         employer may have actual knowledge of an injury, the actual 
 
         knowledge requirement under Iowa code section 85.23 is not 
 
         satisfied unless the employer has information putting him on 
 
         notice that the injury may be work-related.  Robinson v Dept of 
 
         Transportation, 296 N.W.2d 809, 811 (Iowa 1980).  The time period 
 
         for notice of claim does not begin to run until claimant, as a 
 
         reasonable man, should recognize the nature, seriousness and 
 
         probable compensable character of his injury or disease.  Id.  An 
 
         employee may provide information to an employer at the time of 
 
         injury which would satisfy the actual knowledge notice 
 
         requirement under Iowa Code section 85.23 without nullifying his 
 
         right to the benefits under the discovery rule.  Dillinger, 368 
 
         N.W.2d 176, 180 (Iowa 1985).  The purpose of the notice 
 
         requirement is to alert the employer to the possibility of a 
 
         claim so that an investigation can be made while the information 
 
         is fresh. Id.  Although claimant may have reported an injury when 
 
         it occurred, such knowledge is not necessarily knowledge of its 
 
         nature, seriousness and probable compensable character.
 
         
 
              In the case sub judice, claimant was found specifically not 
 
         to have had knowledge of the injury or compensability of the 
 
         claim until May 8, 1989.  As a result of this finding, the claim 
 
         is timely under Iowa Code section 85.26(2) and there was timely 
 
         notice under Iowa Code section 85.23.
 
         
 
              Defendants further contend that the delay in service of the 
 
         original notice of the claims herein was untimely.
 
         
 
              Defendants argue that another deputy commissioner lacked 
 
         jurisdiction to reinstate the petitions early dismissed by 
 
         mistake of the agency.  The undersigned deputy lacks jurisdiction 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         to review the actions of another deputy.  Untimeliness of service 
 
         may have something to do with when a case is ripe for hearing, 
 
         but it is not a defense under our statue of limitation.  There 
 
         was no question that the original notice and petition herein was 
 
         filed on May 8, 1989.  Subsection 3 of Iowa Code 85.26 
 
         specifically states that filing the petition and original notice 
 
         is the only act constituting "commencement" for purposes of this 
 
         section.
 
              
 
              III. A permanent partial disability is either scheduled or 
 
         unscheduled. A 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 compensation payable is limited to that set 
 
         forth in the appropriate subdivision of Iowa Code section 
 
         85.34(2).  Barton v.  Nevada Poultry Company, 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.,  184 
 
         N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u),  the 
 
         industrial commissioner may equitably prorate compensation 
 
         payable in those cases where 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 suffered 
 
         a 19 percent permanent loss of use of his leg.   Based on such a 
 
         finding, claimant is entitled to 41.8 weeks of permanent partial 
 
         disability benefits under Iowa Code section 85.34(2)(o) which is 
 
         19 percent of 220 weeks, the maximum allowable weeks of 
 
         disability for an injury to the leg in that subsection.  
 
         
 
              Claimant's entitlement to permanent partial disability also 
 
         entitles him to weekly benefits 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 he  was performing at the time of 
 
         injury; or, until it is indicated that significant improvement 
 
         from the injury is not anticipated, whichever occurs first. It 
 
         was found  that claimant was off work from January 9, 1991 
 
         through March 17, 1991 due to the work injury.  Healing period 
 
         benefits will be awarded accordingly.
 
         
 
              IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of  reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant is entitled to an order of 
 
         reimbursement if he has paid those expenses.  Otherwise, claimant 
 
         is entitled only to an order directing the responsible defendants 
 
         to make such payments directly to the provider.  See Krohn v. 
 
         State, 420 N.W.2d 463  (Iowa 1988)
 
         
 
              In the case at bar, the parties stipulated that the 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         requested medical expenses were related to the alleged leg 
 
         condition.  Given the finding that the expenses are reasonable, 
 
         they will all be awarded.
 
         
 
                                     ORDER
 
         
 
              1. The claim set for in file no. 974256 is dismissed.  
 
         Defendants are ordered to pay the costs of this claim.
 
         
 
              2.  The following is ordered in claim no 926111:
 
         
 
              a. Defendants shall pay to claimant forty-one point eight 
 
         (41.8) weeks of permanent partial disability benefits at a rate 
 
         of three hundred thirty-three and 10/100 dollars ($333.10) per 
 
         week from March 18, 1991.
 
         
 
              b.  Defendants shall pay to claimant temporary total 
 
         disability/healing period benefits from January 9, 1991 through 
 
         March 17, 1991, at the rate of three hundred thirty-three and 
 
         10/100 dollars ($333.10) per week.
 
         
 
              c.  Defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him.  Otherwise, defendants shall pay the 
 
         provider directly along with any lawful late payment penalties 
 
         imposed upon the account by the provider.
 
         
 
              d.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.  
 
         
 
              e.  Defendants shall receive credit for  previous  payments 
 
         of benefits under a non-occupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2), less 
 
         any tax deductions from those payments.
 
         
 
              f.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              g.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              h.  Defendants 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 January, 1994.
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr Steven Shindler
 
         Mr Brent Cashatt
 
         Attorneys at Law
 
         1000 Equitable Bldg
 
         Des Moines IA 50309-3715
 
         
 
         Mr Terry L Monson
 
         Mr Michael J Eason
 
         Attorneys at Law
 
         100 Court Ave  Ste 600
 
         Des Moines IA 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed January 27, 1994
 
                                            Larry P. Walshire
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            EUGENE M. ANDERSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :      File Nos. 926111
 
                                          :                974256
 
            MAYTAG COMPANY,               :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Nonprecedential, extent of disability case.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JOHN C. LEMKE,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No.  926134
 
         UNITED PARCEL SERVICE,        :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE CO., :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by John Lemke as 
 
         a result of an injury to his right foot or leg which occurred on 
 
         August 2, 1989.  Defendants admitted compensability for the 
 
         injury, paid weekly benefits and paid medical expenses.
 
         
 
              The case was heard and fully submitted at Davenport, Iowa, 
 
         on March 8, 1991.  The record in the proceeding consists of joint 
 
         exhibits A through D and testimony from claimant.
 
         
 
                                      issues
 
         
 
              The issues presented for determination are as follows:
 
         
 
              1.  Claimant's entitlement to permanent partial disability, 
 
         and 
 
         
 
              2.  Claimant's rate of weekly compensation.
 
         
 
                                 findings of fact
 
         
 
              Having considered all the evidence received the following 
 
         findings of fact are made:
 
         
 
              Claimant injured his right foot while at work for employer 
 
         on August 2, 1989.  He incurred lost time as a result of the 
 
         injury from August 3, 1989 through September 13, 1989, according 
 
         to the parties stipulation.  At the time of the injury claimant 
 
         had only worked four days for employer.
 
         
 
              
 
         
 
              
 
         
 
              Claimant testified that he was hired by employer as a 
 
         part-time employee to work year round for 15 hours per week at 
 
         the rate of $8 per hour.  Claimant stated that he had just 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         graduated from high school and the employment for United Parcel 
 
         Service (UPS) was his first job.  Claimant was to work part-time 
 
         while attending college classes.
 
         
 
              Defendants paid claimant his weekly benefits at the rate of 
 
         96 cents per week alleging that his rate should be based upon the 
 
         yearly earnings divided by 52 pursuant to Iowa Code section 
 
         85.36(10).
 
         
 
              Iowa Code section 85.36(7) states that if an employee has 
 
         been employed for less than 13 weeks prior to the injury the wage 
 
         should be calculated based upon what the employee would have 
 
         earned had he been so employed for the full 13 weeks.  Claimant's 
 
         testimony that he was hired to work 15 hours per week year round 
 
         was not refuted.  In this matter, defendants should have 
 
         calculated the rate under Iowa Code section 85.36(7).  It is 
 
         found that had claimant worked the full 13 weeks preceding the 
 
         injury he would have averaged 15-hour work weeks.  It is found 
 
         that claimant's gross weekly earnings in this matter amounts to 
 
         $120 per week which results in a weekly benefit rate of $80.40 
 
         with the claimant as single and entitled to one exemption.
 
         
 
              Claimant also raised the issue of permanent disability.  
 
         John E. Sinning, Jr., M.D., was of the opinion that no permanent 
 
         impairment resulted from the injury (exhibit B, page 3).  No 
 
         other evidence of permanent disability was offered.  It is found 
 
         that claimant has failed to prove by a preponderance of the 
 
         evidence that the injury of August 2, 1989, was the cause of 
 
         permanent disability.
 
         
 
                                conclusions of law
 
         
 
              The basis of compensation shall be the weekly earnings of 
 
         the injured employee at the time of the injury.  Weekly earnings 
 
         means gross salary, wages, or earnings of an employee to which 
 
         such employee would have been entitled had the employee worked 
 
         the customary hours for the full pay period in which the employee 
 
         was injured, as regularly required by the employee's employer for 
 
         the work or employment for which the employee was employed, 
 
         computed or determined as follows and then rounded to the nearest 
 
         dollar:
 
         
 
              ...
 
         
 
              6.  In the case of an employee who is paid on a daily, or 
 
         hourly basis, or by the output of the employee, the weekly 
 
         earnings shall be computed by dividing by thirteen the earnings, 
 
         not including overtime or premium pay, of said employee earned in 
 
         the employ of the employer in the last completed period of 
 
         thirteen consecutive calendar weeks immediately preceding the 
 
         injury.
 
         
 
         (Iowa Code section 85.36)
 
         
 
                 In the case of an employee who has been in the 
 
              employ of the employer less than thirteen calendar 
 
              weeks immediately preceding the injury, the employee's 
 
              weekly earnings shall be computed under subsection 6, 
 
              taking the earnings, not including overtime or premium 
 
              pay, for such purpose to be the amount the employee 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              would have earned had the employee been so employed by 
 
              the employer the full thirteen calendar weeks 
 
              immediately preceding the injury and had worked, when 
 
              work was available to other employees in a similar 
 
              occupation.
 
         
 
         [Iowa Code section 85.36(7)]
 
         
 
              Claimant has proven by the preponderance of the evidence 
 
         that his weekly benefit rate in this case is $80.40.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory. The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that the injury of August 2, 1989, resulted in permanent 
 
         disability to his right foot or leg.
 
         
 
                                      order
 
         
 
              IT IS THEREFORE, ORDERED:
 
         
 
              Defendants are to pay claimant temporary total disability 
 
         benefits at the rate of eighty and 40/100 dollars ($80.40) for 
 
         the period August 3, 1989 through September 13, 1989.
 
         
 
              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 April, 1991.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MARLON D. MORMANN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. James Hoffman
 
         Attorney at Law
 
         PO Box 1087
 
         Middle Road
 
         Keokuk, Iowa  52632-1087
 
         
 
         Mr. Greg Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 E 3rd St
 
         Davenport, Iowa  52801-1596
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803 3000 3002 3003
 
                      Filed April 1, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN C. LEMKE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  926134
 
            UNITED PARCEL SERVICE,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant offered no medical evidence concerning permanent 
 
            disability.  No permanent partial disability awarded.
 
            
 
            53000 53002 53003
 
            Claimant was injured after four hours on his first day of 
 
            work at a part-time job.  Defendants calculated rate 
 
            according to 52 weeks of earnings which resulted in payment 
 
            of 96 cents per week.  
 
            Testimony that claimant was hired to work 15 hours per week 
 
            year round was not refuted.  Claimant's wage calculated 
 
            under 85.36(7) in that had claimant worked the full 13 weeks 
 
            prior he would have averaged 15 hours per week.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD SCHRAMM,    
 
                      
 
                 Claimant,                       File No. 926166
 
                      
 
            vs.                                   A P P E A L
 
                      
 
            FDL FOODS, INC.,                    D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 9, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 S LaSalle St., Ste 1527
 
            Chicago, IL  60603
 
            
 
            Mr. James M. Heckmann
 
            Mr. Stuart G. Hoover
 
            Attorneys at Law
 
            One Cycare Plaza, Ste 216
 
            Dubuque, IA  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed July 10, 1992
 
                                                 Byron K. Orton
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RICHARD SCHRAMM,    
 
                      
 
                 Claimant,                      File No. 926166
 
                      
 
            vs.                                  A P P E A L
 
                      
 
            FDL FOODS, INC.,                   D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            9, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD SCHRAMM,              :
 
                                          :       File No. 926166
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            FDL FOODS, INC.,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Schramm, claimant, against FDL Foods, Inc., employer 
 
            (hereinafter referred to as FDL), a self-insured defendant, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on August 16, 1989.  On August 15, 1991, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered 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.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and FDL at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits from August 17, 1989 through March 
 
            24, 1991, except for a few days in which he worked a total 
 
            of six hours.
 
            
 
                 3.  Claimant's rate of weekly compensation in the event 
 
            of an award of weekly benefits from this proceeding shall be 
 
            $260.42.
 
            
 
                 4.  Claimant has been paid 15 6/7 weeks of compensa
 
            tion.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  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:
 
            
 
                 Claimant, age 44, worked for FDL from 1987 until his 
 
            injury of August 16, 1989.  After that time, claimant 
 
            attempted to return to work four times but unsuccessfully.  
 
            Claimant remains unemployed at the present time.  Claimant's 
 
            job at FDL was that of a laborer in a meat packing plant.  
 
            Claimant was called a floater or a person who fills in as 
 
            needed.  At the time of the alleged injury, claimant was 
 
            assigned to hanging hams.  This job required placing hams on 
 
            moveable hangers attached to overhead rails called "trees."  
 
            Claimant was required after hanging the hams on these trees 
 
            to push the trees along the overhead rail within the plant.
 
            
 
                 On or about August 16, 1989, claimant injured his low 
 
            back at FDL while hanging and pushing hams.  The back strain 
 
            and subsequent occurrence of pain while working at this time 
 
            did not appear to be hotly contested during the hearing.  
 
            The fighting issue was the causal connection and legitimacy 
 
            of subsequent disability and treatment for chronic and con
 
            tinuing low back pain subsequent to this injury.  Claimant 
 
            reported his severe pain immediately to the plant medical 
 
            office on August 16, 1989, and was treated accordingly.  
 
            Claimant called in sick the next day complaining of back 
 
            pain and was seen by L. C. Faber, M.D.  Claimant was hospi
 
            talized for tests and was also evaluated by Julian Nemmers, 
 
            M.D., an orthopedic surgeon.  Both Dr. Faber and Dr. Nemmers 
 
            agreed that claimant suffered a back strain from his injury 
 
            on August 16, 1989, but felt that claimant had exaggerated 
 
            pain complaints given the lack of findings from their exami
 
            nations and tests.  Claimant attempted a return to work in 
 
            September and October but each time he left work after only 
 
            a few hours complaining of low back pain.  On December 12, 
 
            1989, Dr. Nemmers opined that claimant reached maximum heal
 
            ing from his injury and released claimant to return to work 
 
            without restrictions.  Dr. Nemmers opined that claimant's 
 
            condition was not permanent and attributed claimant's con
 
            tinuing pain complaints and inability to return to work as 
 
            "functional overlay/malingering."
 
            
 
                 It is found that the work injury of August 16, 1989, 
 
            was a cause of claimant's absence from work from August 16, 
 
            1989 through December 12, 1989.  However, it could not be 
 
            found that claimant's disability and treatment for low back 
 
            pain subsequent to December 12, 1989, was a result of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            injury in August of 1989.  Claimant's failure in this matter 
 
            stems from conflicting evidence as to the legitimacy and 
 
            causal connection of the continuing low back pain.  The con
 
            flicting evidence started with the opinions of Dr. Nemmers 
 
            in December of 1989, as discussed above.  After his opinion, 
 
            claimant sought treatment from the VA Hospital in Iowa City, 
 
            Iowa.  Further testing by VA doctors again failed to find 
 
            any objective problems.  Claimant then returned to work in 
 
            March 1990 but again left after a few hours due to low back 
 
            pain.  Claimant then sought treatment from Thomas Hughes, 
 
            M.D., an occupational medicine physician.  Upon a diagnosis 
 
            of chronic pain disorder, Dr. Hughes treated claimant con
 
            servatively over the next few months with medication, exer
 
            cises, trigger point injections, ice massages and physical 
 
            therapy.  All of this treatment was unsuccessful in achiev
 
            ing any lasting relief of claimant's pain and the doctor 
 
            discontinued his treatment in August 1990.  Dr. Hughes felt 
 
            that claimant's pain was real and noted objective signs such 
 
            as muscle spasms, distorted body posture and a consistent 
 
            pattern of complaints.  He opined that claimant cannot 
 
            return to work at FDL as he is not capable of performing 
 
            such heavy work.  He recommends that claimant not stand for 
 
            more than one hour and indicates that claimant cannot toler
 
            ate prolonged walking and should only perform tasks requir
 
            ing minimal bending, stooping, lifting, kneeling and crawl
 
            ing.  Dr. Hughes believes that claimant has a permanent par
 
            tial impairment consisting of 18 percent to the body as a 
 
            whole.
 
            
 
                 However, inconsistent pain reaction behavior has been 
 
            noted by several persons connected to claimant's attempt at 
 
            physical and vocational rehabilitation.  Melvin Harvey, 
 
            L.P.T., stated that in September 1989, during a functional 
 
            abilities evaluation, claimant was so inconsistent in his 
 
            behavior that he could not provide an accurate assessment of 
 
            his capabilities.  In December 1990, claimant was evaluated 
 
            by Dr. Broman, M.D., (first name unknown) prior to attending 
 
            a state vocational rehabilitation facility in Des Moines for 
 
            evaluation of his potential for vocational rehabilitation.  
 
            Dr. Broman noted that most doctors in claimant's case agreed 
 
            that claimant's complaints are almost entirely subjective 
 
            and that claimant exhibited "old problem, lack of motiva
 
            tion."
 
            
 
                 Claimant attended the Iowa Vocational Rehabilitation 
 
            Program in Des Moines in early 1991.  The program was sched
 
            uled for three weeks but claimant left after only one week 
 
            of testing complaining of severe back pain.  Claimant 
 
            explained that it was not so much the tasks involved but the 
 
            walking on concrete floors.  At the facility, vocational 
 
            evaluators and counselors noted inconsistent pain behavior 
 
            by claimant.  For example, claimant one day insisted on 
 
            being carried to his room but later on in the day left to go 
 
            to his room on a floor below using the stairs rather than an 
 
            elevator.  Claimant was told that he should use the elevator 
 
            if he is having pain.  Claimant would complain of pain after 
 
            only simple tasks such as placing poker chips into a plastic 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            bag but would later walk for over six to eight blocks to a 
 
            local convenience store to buy cigarettes.  Claimant com
 
            plained at hearing that he could not tolerate standing on 
 
            concrete floors but most of the tasks would allow him to 
 
            both sit and stand at his option.  An evaluator at the 
 
            facility with many years of experience, Roberta A. Kerr, 
 
            whose deposition testimony appears in the record, testified 
 
            that she felt claimant's behavior was very inconsistent for 
 
            a person with a real disability.
 
            
 
                 Claimant was also evaluated by William O'Dell, LPT, 
 
            using an examination machine called a B200.  This machine 
 
            measures claimant's efforts to achieve a range of motion 
 
            against a standard established by claimant in preliminary 
 
            measurements in which claimant is asked to exert maximum 
 
            effort against an immovable machine.  Using this standard 
 
            and a recognized protocol by the physical therapy community, 
 
            O'Dell found that claimant in subsequent machine usage 
 
            exhibited only mild physical dysfunction, but at the same 
 
            time only exhibited a minimal effort in doing so.  O'Dell 
 
            questioned the legitimacy of claimant's efforts.  Admit
 
            tedly, there is a serious problem in this testing protocol, 
 
            especially in failing to fully rule out the possibility that 
 
            claimant was naturally hesitate due to a fear of pain.  How
 
            ever, this testing, in conjunction with the other evidence 
 
            in this case of claimant's inconsistent pain behavior, was 
 
            enough to raise serious doubts about claimant's disability.
 
            
 
                 The undersigned is simply unconvinced by claimant that 
 
            his continuing problems after December 12, 1989, are real or 
 
            as bad as complained.  Given the views of Dr. Nemmers, the 
 
            only orthopedic surgeon testifying in this case, and the 
 
            opinions of the L.P.T.'s along with the observations of 
 
            vocational rehabilitation personnel, claimant has failed to 
 
            prove that treatment and disability after December 12, 1989, 
 
            was work related.  The views of Dr. Hughes alone were insuf
 
            ficient to establish claimant's case.
 
            
 
                 It should be noted that this decision was not based on 
 
            anything that the undersigned observed in the surveillance 
 
            video tapes placed into evidence.  They revealed nothing of 
 
            significance and in some respects helped claimant's case.  
 
            He chose to use his legs and feet rather than to kneel and 
 
            use his arms and hands to loosen the lug nuts on his van 
 
            tires.  He also, on one occasion, refused to lift a corner 
 
            of a camper top and allowed a friend to do so.  None of 
 
            these tapes or the written description of activities 
 
            observed by the private investigator demonstrated activity 
 
            that would clearly be contrary to the work activity restric
 
            tions imposed by Dr. Hughes.  Dr. Hughes never said that 
 
            claimant had to be bed ridden or that he could not perform 
 
            routine work around the home.  It was repetitive and pro
 
            longed hard work such as meat packing work at FDL that, in 
 
            the opinion of Dr. Hughes, claimant could no longer perform.
 
            
 
                 As all the requested medical expenses were incurred by 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant after December 12, 1989, none of the expenses can 
 
            be found causally connected to the work injury.
 
            
 
                                conclusions of law
 
            
 
                   I.  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.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from sudden unexpected traumatic event.  It is suf
 
            ficient 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).
 
            
 
                 In the case sub judice, as stated in the findings of 
 
            fact, there was only a minimal dispute as to whether or not 
 
            a strain actually occurred at work.  The fighting issue was 
 
            the causal connection of claimant's chronic pain behavior to 
 
            this work injury.  As claimant failed to show this causal 
 
            connection by a preponderance of the evidence, claimant is 
 
            not entitled to compensation for the continuing problems 
 
            after December 1989.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 
            impairment or permanent limitation in work activity.  How
 
            ever, in some instances, such as a job transfer caused by a 
 
            work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  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 cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant failed to meet his 
 
            burden of proof with reference to causal connection.  The 
 
            evidence was too conflicting to enable the undersigned to 
 
            find that the work injury was a cause of the treatment and 
 
            disability after December 1989.  However, claimant is enti
 
            tled to treatment and disability benefits between the date 
 
            of injury and December 12, 1989.
 
            
 
                 Under Iowa Code section 85.33(1) claimant is entitled 
 
            to temporary total disability benefits as a matter of law 
 
            between the date of injury and the time Dr. Nemmers felt 
 
            that claimant would be able to return to work on December 
 
            12, 1989.  This entitles claimant under law to 17 weeks of 
 
            temporary total disability benefits.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant temporary total 
 
            disability benefits from August 17, 1989 through December 
 
            12, 1989, at the rate of two hundred sixty and 42/l00 
 
            dollars ($260.42) per week.
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.
 
            
 
                 3.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendant shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendant shall file activity reports upon the pay
 
            ment of this aware as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            135 S LaSalle St
 
            Suite 1527
 
            Chicago  IL  60603
 
            
 
            Mr. James M. Heckmann
 
            Mr. Stuart G. Hoover
 
            Attorneys at Law
 
            One Cycare Plaza
 
            Suite 216
 
            Dubuque IA  52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed September 9, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD SCHRAMM,              :
 
                                          :       File No. 926166
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            FDL FOODS, INC.,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Claimant failed to show that his chronic pain symptoms were 
 
            causally connected to the injury and compensable.