Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOY B DECKER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 929412
 
            AALFS MANUFACTURING,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Joy 
 
            Decker against her former employer, Aalfs Manufacturing, and 
 
            its insurance carrier based upon an injury of September 13, 
 
            1989.  It was stipulated that Decker sustained injury which 
 
            arose out of and in the course of employment, that the 
 
            injury produced temporary disability and that the correct 
 
            weekly rate of compensation is $138.94.  The issues in the 
 
            case are whether the injury produced any permanent 
 
            disability, when the healing period ended and whether the 
 
            injury is one which should be compensated industrially or 
 
            under the schedule if permanency resulted. 
 
            
 
                 The record in the proceeding consists of testimony from 
 
            Joy Decker, Paula Harris, Dianna Heins, and David Decker.  
 
            The record also contains claimant's exhibits 1 through 16 
 
            and defendants' exhibits A through 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:
 
            
 
                 Joy Decker was employed at Aalfs Manufacturing from 
 
            1978 through 1990.  She performed repetitive work operating 
 
            sewing machines involved in the manufacture of blue jeans.  
 
            During 1989 her arms began hurting.  On September 13, 1989, 
 
            after reporting her symptoms to her supervisor, Joy was 
 
            referred to the company physician who in turn referred her 
 
            to orthopedic surgeon Rick Wilkerson. Dr. Wilkerson's 
 
            initial diagnosis was that she probably had bilateral 
 
            cubital and carpal tunnel syndromes.  Over the next several 
 
            months Joy participated in a course of conservative 
 
            treatment which included wearing braces or splints, 
 
            prescription medication, time off work and restricted work 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            activities (exhibit 4).  On November 27, 1989, she was 
 
            evaluated by Leonel H. Herrera, M.D., neurologist, who was 
 
            of the impression that she had bilateral ulnar nerve 
 
            compression at the elbows (ex. 14).  
 
            
 
                 Joy's complaints included not only her hands and arms, 
 
            but also her shoulder and neck.  She received physical 
 
            therapy for her neck and shoulder (ex. 13).  On February 13, 
 
            1990, Dr. Wilkerson indicated that her symptoms were worse 
 
            on her left elbow than on her right.  He released her to 
 
            return to work and cautioned her that if her symptoms 
 
            recurred she should return for further care.  On March 15, 
 
            1990, Joy returned to Dr. Wilkerson.  Her symptoms had 
 
            recurred.  At this time Dr. Wilkerson diagnosed her as 
 
            having bilateral cubital and carpal tunnel syndromes.  Since 
 
            it did not resolve with conservative treatment he indicated 
 
            that surgery was the only remaining recourse.  Dr. Wilkerson 
 
            provided permanent impairment ratings of 50 percent of her 
 
            right hand and 15 percent of her left hand if surgery was 
 
            not performed.  Though claimant's condition involves 
 
            compression of the ulnar nerve at her elbows, Dr. Wilkerson 
 
            did not provide an impairment rating for her arms, only for 
 
            her hands.  
 
            
 
                 At that point there was uncertainty regarding what the 
 
            course of future care or treatment would be.  Joy saw Dr. 
 
            Wilkerson on April 4, 1990.  At that time it was reported 
 
            that she was permanently impaired and that she should be 
 
            released from performing further work at Aalfs.  It was 
 
            reported that she had achieved as much medical improvement 
 
            as possible unless surgery was performed.  The impairment 
 
            rating previously made was confirmed on April 4, 1990 and 
 
            again on June 20, 1990 (ex. 4).  It was on April 4, 1990, 
 
            that the decision was apparently made that there would be no 
 
            further attempts to enable Joy to resume work at Aalfs 
 
            Manufacturing.  It is found that on April 4, 1990, it was 
 
            medically indicated that further significant improvement 
 
            from the injury was not anticipated.  
 
            
 
                 Joy has been evaluated by a number of physicians.  Rex 
 
            J. Jones, D.C., on March 26, 1990, rated her as having a 7.5 
 
            percent impairment of each upper extremity, apparently based 
 
            on pain.  Dr. Jones attributes the pain to the ulnar nerve 
 
            (ex. 11).
 
            
 
                 Joy was also evaluated by Jay Michael Donohue, M.D.  
 
            Dr. Donohue reported on May 15, 1990, that she had reached 
 
            maximum medical improvement and that consideration could be 
 
            given to decompression surgery of the left ulnar nerve at 
 
            her elbow.  He rated her at that time as having a 5 percent 
 
            impairment of her left upper extremity, but no impairment of 
 
            the right upper extremity (ex. 5).  Dr. Donohue also 
 
            evaluated claimant on subsequent occasions.  On May 28, 
 
            1991, he confirmed that she had reached maximum medical 
 
            improvement and reported that her subjective complaints far 
 
            outweighed the objective findings.  On October 31, 1990, he 
 
            had diagnosed bilateral upper extremity dysfunction, but 
 
            again felt that she had reached maximum medical improvement 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and at that time he rated her as having no permanent 
 
            impairment.  He also stated that the natural history of her 
 
            overuse syndrome condition is gradual improvement.  On 
 
            September 19, 1990, he had reported that she would not be 
 
            able to return to production line activity (ex. 3).
 
            
 
                 Joy has also been evaluated by Joel T. Cotton, M.D.  
 
            Dr. Cotton found no evidence of residual physical or 
 
            neurological injury.  He found that there was no indication 
 
            for any physical restrictions or limitations.  He agreed 
 
            that she had reached maximum medical benefit.  He reported 
 
            that she had not suffered any permanent impairment and that 
 
            there was no evidence of an overuse syndrome (ex. B). 
 
            
 
                 The opinions of the physicians in this regard vary 
 
            widely.  The evaluation from Dr. Cotton is the most recent 
 
            but it also was performed at a time when Joy was far removed 
 
            from the type of repetitive activities which caused her 
 
            problems.  It is not remarkable that there would be no 
 
            evidence of an overuse syndrome since she had refrained from 
 
            the injurious activity for a considerable amount of time 
 
            before seeing Dr. Cotton.  His opinions are rejected.  
 
            
 
                 The ratings from Dr. Wilkerson, the primary treating 
 
            physician, seem quite high in comparison to those commonly 
 
            seen in other cases of individuals having similar symptoms, 
 
            complaints and diagnostic tests.  The earlier rating from 
 
            Dr. Donohue is somewhat consistent with those seen in other 
 
            cases as are the ratings from Dr. Jones.  
 
            
 
                 It is irreconcilable to report that a person has 
 
            suffered no impairment, but cannot resume repetitive 
 
            activity such as production line work.  If there were no 
 
            impairment, there would be no reason for an activity 
 
            restriction.  While a condition might not fit within the 
 
            criteria of a guide for rating impairments, the pratical 
 
            fact of the matter is that loss of ability to perform a 
 
            function establishes the existance of an impairment of 
 
            function and a partial disability.  
 
            
 
                 It is clear that in this case the cubital tunnel at the 
 
            elbow is involved.  The impairment is therefore not limited 
 
            to the hands.  The normal characteristics of overuse 
 
            syndrome conditions is that they resolve considerably when 
 
            the offending activity is discontinued.  They recur if the 
 
            offending activity is resumed.  It is, nevertheless, 
 
            difficult to arrive at a determination of the degree of 
 
            disability when dealing with an overuse syndrome condition.  
 
            In this case it is found, based upon the evidence in the 
 
            record of this case and based upon agency experience from 
 
            other cases with similar circumstances, that Joy Decker has 
 
            a 5 percent permanent impairment of each arm as a result of 
 
            the overuse syndrome, also known as a cumulative trauma 
 
            injury, which she sustained while employed at Aalfs 
 
            Manufacturing.  
 
            
 
                                conclusions of law
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant's problem with her continuing residual 
 
            symptoms affecting her arms is a continuation of the problem 
 
            that was originally caused by her work injury.  There has 
 
            been no break in the chain of causation.  The permanent 
 
            disability which currently afflicts her was proximately 
 
            caused by the original work injury.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 It is determined that Joy's healing period ended on 
 
            April 4, 1990, in accordance with the determination made by 
 
            Dr. Wilkerson.  Compensation for permanent partial 
 
            disability begins at termination of the healing period.  Her 
 
            entitlement to permanent partial disability compensation 
 
            therefore commences on April 5, 1990. 
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  Compensation for scheduled 
 
            permanent partial disability is determined under Iowa Code 
 
            section  85.34(2)(a) - (t) according to the functional loss 
 
            of use of the member without considering the impact of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury upon the individual's earnings or earning capacity.  
 
            Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 
 
            (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 
 
            184 N.W. 746 (1921).  An agency rule such as 343 IAC 2.4 
 
            should not be construed, beyond its own terms, in a manner 
 
            which makes it the exclusive means of measuring scheduled 
 
            disabilities.  The terminology in those guides differs from 
 
            the statute.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
            (Iowa 1986).  The role of the guide adopted by the agency 
 
            rule is limited to the extent that it is consistent with the 
 
            statute.
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 Joy has had complaints involving her shoulder and neck.  
 
            There has been no medically demonstrated disability, 
 
            impairment, physiological abnormality or derangement other 
 
            than the carpal tunnel and cubital tunnel conditions which 
 
            have been diagnosed.  Her injury is therefore a scheduled 
 
            injury.  It does not extend into the body as a whole.  It is 
 
            noted that impairment of the upper extremity may be 
 
            impairment of the shoulder which extends into the body as a 
 
            whole or impairment of the arm which is limited to the 
 
            scheduled member.  In this case all of the permanent 
 
            physical injury, anatomical damage and impairment is located 
 
            in the arm.  The disability is therefore a scheduled 
 
            disability.
 
            
 
                 Benefits for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 It has been found that Joy has a 5 percent permanent 
 
            impairment of each arm.  Under the AMA Guides made pertinent 
 
            to this case by rule 343 IAC 2.4, each 5 percent impairment 
 
            of the upper extremity converts to a 3 percent impairment of 
 
            the whole person.  When combined under the combined values 
 
            chart, these amount to a 6 percent funcitonal impairment of 
 
            the whole person.  Under the provisions of Code section 
 
            85.34(2)(s) claimant is therefore entitled to recover 30 
 
            weeks of compensation for permanent partial disability.  
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Joy Decker's healing 
 
            period under section 85.34(1) ended on April 4, 1990.
 
            
 
                 It is further ordered that defendants pay Joy Decker 
 
            thirty (30) weeks of compensation for permanent partial 
 
            disability at the stipulated rate of one hundred 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            thirty-eight and 94/100 dollars ($138.94) per week 
 
            commencing April 5, 1990.
 
            
 
                 It is further ordered that defendants receive credit 
 
            for all permanent partial disability compensation which has 
 
            been previously paid.  Any unpaid past due amounts shall be 
 
            paid to Decker in a lump sum together with interest pursuant 
 
            to section 85.30.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. E.W. Wilcke
 
            Attorney at Law
 
            1510 Hill Ave
 
            PO Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                               1808 1402.40 1803.10
 
                                               Filed February 26, 1993
 
                                               Michael G. Trier
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            JOY B DECKER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 929412
 
            AALFS MANUFACTURING,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY CO.,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1808 1402.40
 
            Where physicians had widely varying opinions as to 
 
            percentage of impairment, the claimant's credibility was 
 
            relied upon to find a 5 percent impairment of each arm as a 
 
            result of overuse syndrome.  A recent examination by an 
 
            employer-chosen physician which found no impairment and no 
 
            evidence of overuse syndrome was discounted because the 
 
            claimant had not engaged in repetitive activity for 
 
            approximately two years prior to the time of the recent 
 
            examination.  Claimant had not undergone surgery.  Her 
 
            carpal tunnel and cubital tunnel syndromes were relatively 
 
            mild.
 
            
 
            1803.1
 
            Carpal tunnel and cubital tunnel were scheduled injuries and 
 
            did not extend into the body even though claimant had 
 
            complaints of discomfort in her shoulder and neck.  No 
 
            pathology in the shoulder or neck areas had been identified.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            ABBY D. WARD,    
 
                        
 
                 Claimant,                File Nos. 929589/979230
 
                                                    979231/979232
 
            vs.         
 
                                                    A P P E A L
 
            IBP, 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 November 19, 1992 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
                Claimant suffered a cumulative injury.  Although 
 
            claimant eventually left work, she was not compelled to 
 
            leave work due to her work injury.  Under Oscar Mayer 
 
            Foods v. Tasler, 483 N.W.2d 824 (Iowa 1992), the Iowa 
 
            Supreme Court held that for purposes of computing 
 
            benefits it is appropriate to fix the date of injury as 
 
            of the time at which the disability manifests itself.  
 
            The Commissioner is entitled to a substantial amount of 
 
            latitude in making a determination regarding the date 
 
            of manifestation since this is an inherently fact-based 
 
            determination.  
 
            
 
                 In this case, claimant's injury manifested itself 
 
            when the condition became severe enough to prompt 
 
            claimant to seek medical treatment.  That occurred on 
 
            May 3, 1988.  Claimant's petition for benefits was not 
 
            filed until April 18, 1991.  Under Iowa Code section 
 
            85.26(1), claimant's petition was not timely filed.
 
            
 
                 Even if claimant's action had been timely brought, 
 
            claimant has failed to carry her burden of proof to 
 
            show that she has suffered a permanent condition as a 
 
            result of her work injury.  
 
            
 
            THEREFORE, it is ordered: 
 
            
 
            Claimant shall take nothing further from these proceedings.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript. 
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            P.O. Box 188
 
            Storm Lake, Iowa 50588
 
            
 
            Mr. John M. Comer
 
            Attorney at Law
 
            P.O. Box 515, Dept. 41
 
            Dakota City, NE  68731
 
            
 
 
            
 
                   
 
                                               5-1800; 2400
 
                                               Filed March 31, 1993
 
                                               Byron K. Orton
 
                                               MAM
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            ABBY D. WARD,    
 
                        
 
                 Claimant,                File Nos. 929589/979230
 
                                                    979231/979232
 
            vs.         
 
                                                A P P E A L
 
            IBP, INC.,       
 
                                              D E C I S I O N
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            
 
            5-1800
 
            Claimant was unable to prove that he had sustained any 
 
            permanent partial disabilities because of repetitive motions 
 
            in the work place.  Claimant had no objective evidence to 
 
            support his claim for benefits.
 
            
 
            2400
 
            The industrial commissioner held that for purposes of 
 
            determining an injury date, the injury was held to have 
 
            manifested itself on the date claimant's condition became 
 
            severe enough to prompt claimant to seek medical attention.  
 
            The rationale of Oscar Mayer Foods v. Tasler was followed.  
 
            As a consequence, claimant did not timely file her petitions 
 
            pursuant to Iowa Code section 85.26.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ABBY D. WARD,                 :
 
                                          :    File Nos. 929589/979230
 
                 Claimant,                :              979231/979232
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            IBP, INC.,                    :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petitions 
 
            of claimant, Abby Ward, against his self-insured employer, 
 
            IBP, Inc.  The petitions were filed on April 18, 1991.  The 
 
            cases were consolidated and they were heard on September 1, 
 
            1992 in Storm Lake, Iowa at the Buena Vista County 
 
            Courthouse.  The record consists of joint exhibits A-C and 
 
            E-J.  The record also consists of the testimony of claimant, 
 
            Abby Dean Ward.
 
            
 
                 At the commencement of the hearing procedures claimant, 
 
            through his attorney, made a motion to dismiss file number 
 
            929589 which had an alleged injury date of September 19, 
 
            1989.  The undersigned deputy orally granted the motion to 
 
            dismiss.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 For file number 979230, April 15, 1988:
 
            
 
                 1)  Whether claimant is entitled to any permanent 
 
            partial disability benefits from a work-related injury on 
 
            April 15, 1988; and,
 
            
 
                 2)  Whether claimant has filed his original notice and 
 
            petition in a timely fashion.
 
            
 
                 For file number 979231, February 11, 1991:
 
            
 
                 1)  Whether claimant is entitled to any permanent 
 
            partial disability benefits from a work-related injury on 
 
            February 11, 1991; and,
 
            
 
                 2)  Whether claimant has filed his original notice and 
 
            petition in a timely fashion.
 
            
 
                 For file number 979232, January 22, 1991:
 
            
 
                 1)  Whether claimant is entitled to any permanent 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            partial disability benefits from a work-related injury on 
 
            January 22, 1991; and,
 
            
 
                 2)  Whether claimant has filed his original notice and 
 
            petition in a timely fashion.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 30 years old.  He dropped out of high 
 
            school in 1980 after he completed the eleventh grade.  
 
            Claimant described his class rank as being in the middle of 
 
            the class.
 
            
 
                 After he left high school, claimant commenced his 
 
            working career in order to assist his family.  He began 
 
            working in the construction industry where he built and 
 
            erected grain bins, installed fiberglass insulation, erected 
 
            steel, and generally engaged in strenuous labor.  For his 
 
            efforts, claimant was compensated at the rate of $4 to $6.50 
 
            per hour.
 
            
 
                 On August 21, 1987, claimant commenced his employment 
 
            with defendant.  He started at $6.00 per hour and was 
 
            assigned to boning loins.  His duties included pulling ribs, 
 
            using a straight knife to remove bones, and working at a 
 
            fast pace.  By the end of the 1987 calendar year, claimant 
 
            was earning $6.25 per hour.
 
            In 1988, claimant began experiencing difficulties with his 
 
            right wrist, forearm and elbow.  On May 3, 1988, claimant 
 
            sought medical treatment from Brian W. Nelson, M.D., at Iowa 
 
            Lakes Orthopedics.  Dr. Nelson diagnosed claimant's 
 
            condition as:  "Possible carpal tunnel syndrome as yet 
 
            unresponsive to conservative care.  Patient showed several 
 
            non-organic signs of pathology today."  (Exhibit C-1)
 
            
 
                 An EMG was conducted with negative results.  Later Dr. 
 
            Nelson modified his diagnosis to "a mild over-use syndrome."  
 
            (Ex. C-2).  He placed claimant on light duty and ordered 
 
            physical therapy.  Claimant missed no work.
 
            
 
                 As of July 12, 1988, Dr. Nelson opined:
 
            
 
                 ASSESSMENT:  Overuse syndrome.  Patient has 
 
                 responded nicely to conservative care.  He still 
 
                 has just a mild touch of lateral epicondylitis 
 
                 which should give him no permanent problems.
 
            
 
                 PLAN:  1) Return to full duties with no 
 
                    restriction.
 
                   2)  There will be no permanent impairment.
 
                   3)  Patient is advised to continue wearing 
 
            his tennis elbow splint and to ice down the 
 
            elbow at the end of work.
 
                   4)  I will follow this patient up on a PRN 
 
            basis.
 
            
 
            (Ex. C-4).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant continued with conservative treatment.  On 
 
            February 6, 1989, claimant returned to the Iowa Lakes 
 
            Orthopedics Clinic for bilateral arm pain.  David M. 
 
            Lingren, M.D., diagnosed claimant's condition as:
 
            
 
                 ASSESSMENT:  1) Bilateral flexor tendonitis 
 
                 involving the hand and wrist.  At this time, I 
 
                 feel we should start anew with treatment of this 
 
                 tendonitis with appropriate relief of his boxing 
 
                 job and anti-inflammatory measures.
 
            
 
            (Ex. C-8).
 
            
 
            Claimant remained on light duty.
 
            
 
                 In January of 1990, claimant was examined by J. Michael 
 
            Donohue, M.D.  The orthopedic surgeon opined:
 
            
 
                 EVALUATION:  Of the upper extremities reveals what 
 
                 appears to be an extensor tendon sheath cyst over 
 
                 the long finger extensor tendon at the level of 
 
                 the wrist.  It is minimally tender.  Wrist range 
 
                 of motion is otherwise full.  Examination of the 
 
                 right forearm reveals enlargement of what more 
 
                 than likely is another flexor tendon sheath cyst 
 
                 that measures 6 cm. x 3 cm. in the volar surface 
 
                 of the forearm.  Examination of the back today 
 
                 reveals good range of motion but tenderness over 
 
                 the right posterior superior iliac spine and 
 
                 pelvic brim.  The patient has also developed some 
 
                 hamstring tightness especially on the right side.
 
            
 
                 ASSESSMENT:  1)  Tendonitis with flexor tendon 
 
                 sheath cyst formation of left wrist extensor 
 
                 tendons and right forearm.
 
                         2)  Mild flare-up of low back injury.
 
            
 
                 PLAN:  With respect to his upper extremity 
 
                 problems, the patient currently has permanent 
 
                 restriction to avoid repetitive use of the upper 
 
                 extremities.  I believe no other intervention is 
 
                 indicated at this time other than further 
 
                 observation.  I also recommended icing of the 
 
                 swollen areas at the end of a work shift if they 
 
                 remain symptomatic.
 
            
 
            (Ex. C-34).
 
            
 
                 Dr. Donohue opined that:
 
            
 
                 EVALUATION:  of the upper extremities reveals 
 
                 persistence in the mid-forearm flexor tendon 
 
                 ganglion although this is not tender.  Elbow and 
 
                 wrist range of motion are full.  Evaluation of the 
 
                 left upper extremity reveals resolution of the 
 
                 previous dorsal ganglion over the wrist.  CMS is 
 
                 intact.
 
            
 
                 ASSESSMENT:  1)  Status post low back injury--I 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 believe the patient has reached maximal medical 
 
                 improvement and has not sustained any permanent 
 
                 impairment from this injury.
 
                         2)  Status post overuse syndrome 
 
            right upper extremities--improving with 
 
            strengthening activities and at this time, I do 
 
            not anticipate the patient to require any further 
 
            treatment and we will plan on discharging him from 
 
            clinic.  Based on findings today, I do not feel he 
 
            has sustained any permanent impairment with 
 
            respect to his right upper extremity symptoms and 
 
            left dorsal wrist ganglion which again has 
 
            resolved.  I related to the patient that should 
 
            his situation change at any time in the future, I 
 
            will be happy to re-evaluate him them [sic].  
 
            Otherwise, follow-up will be on a prn basis.
 
            
 
            (Ex. C-37).
 
            
 
                 Dr. Donohue imposed restrictions on claimant's 
 
            activities.  The physician restricted claimant from 
 
            repetitive gripping, pushing, or pulling with the right 
 
            upper extremity while claimant went through rehabilitation.  
 
            (Ex. C-39)  Later Dr. Donohue modified the restrictions to:  
 
            activities as tolerated by claimant.  The modified 
 
            restrictions were based upon claimant's functional capacity 
 
            evaluation on April 8, 1992 and upon claimant's subjective 
 
            complaints.
 
            
 
                 After his functional capacity evaluation, Randy 
 
            Presler, P.T., opined that:
 
            
 
                 C. Isometric Strength Testing - Abby was not 
 
                    retested on isometric strength testing.  His 
 
                    values were ABOVE the 80th percentile in all 4 
 
                    standardized lifting positions (arm lift, leg 
 
                    lift, back lift, and high far lift).  Abby has 
 
                    EXCELLENT static strength capabilities.
 
            
 
                 D. Aerobic Fitness Testing - Abby was re-evaluated 
 
                    on the bicycle ergometry test.  His aerobic 
 
                    capacity was tested at 44 ml/kg/min.  This 
 
                    places him in the AVERAGE category and is an 
 
                    improvement from his testing on May 6th.  Abby 
 
                    has the ability to sit, stand, and walk 
 
                    intermittently throughout the course of an 8 
 
                    hour day.  He demonstrates the ability to 
 
                    perform in the HEAVY physical demand level of 
 
                    work which is characterized by lifting 100 
 
                    pounds occasionally and 50 pounds of less 
 
                    frequently.
 
            
 
                 We will plan to discontinue Abby from our Work 
 
                 Hardening Program as he is improved in all values 
 
                 and is now able to tolerate work in the heavy 
 
                 physical demand level.  I do not know if he will 
 
                 be returning to work at IBP at this time.
 
            
 
            (Ex. C-47).
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant was medically disqualified from pulling ribs 
 
            and from repetitive motion.  Claimant was then transferred 
 
            to operating the Cry-O-Vac Machine.  He operated the machine 
 
            from April 24, 1989 until claimant voluntarily terminated 
 
            his employment on March 12, 1991.  While claimant had been 
 
            placed on light duty, he missed no work because of his work 
 
            injuries until he terminated his employment.  At the time of 
 
            his separation, claimant was earning $8.22 per hour.
 
            
 
                 After his voluntary termination, claimant sought an 
 
            independent medical examination from A. J. Wolbrink, M.D., 
 
            an orthopedic surgeon.  Dr. Wolbrink examined claimant on 
 
            April 1, 1992.  The physician authored a report of the same 
 
            date in which he opined that:
 
            
 
                 On examination I found Mr. Ward to be 69 inches 
 
                 tall and weigh 208 pounds.  Has tenderness with 
 
                 some mild muscle spasm in the right trapezius.  He 
 
                 has normal range of motion of the cervical spine 
 
                 except for slight limitation of motion to the 
 
                 right.  Neurologic exam was normal throughout the 
 
                 upper extremities with normal reflexes and no 
 
                 focal muscular weakness.  He has had mild diffuse 
 
                 weakness in the right upper extremity.  The right 
 
                 shoulder had no apparent tenderness.  There was 
 
                 crepitation in the rotator cuff.  He had normal 
 
                 range of motion throughout all directions in the 
 
                 right shoulder.  Impingement sign was not truely 
 
                 positive.  He did have some discomfort with 
 
                 abduction impingement testing.  The right elbow 
 
                 had a normal range of motion.  There was some 
 
                 tenderness in the medial epicondyle and along the 
 
                 ulnar nerve in the notch at the elbow.  He was a 
 
                 bit diffusely tender along the flexor tendons of 
 
                 the right forearm.  Has normal range of motion of 
 
                 the right wrist, hand, and fingers.  Tinel's sign 
 
                 seems to be positive.  Phalen's test caused mild 
 
                 symptoms after about one minute.  There was a 
 
                 little weakness of intrinsic muscles in the right 
 
                 hand.  The left arm had normal motion throughout 
 
                 the shoulder, elbow, wrist, and hand.  Grip 
 
                 strength measure 51, 36, and 42 kg. in the right 
 
                 hand and 57, 56, and 46 kg. with serial mea
 
                 surements in the left hand.  Mr. Ward had normal 
 
                 range of motion of the lumbar spine being able to 
 
                 forward bend to toe touch but he did have some 
 
                 reported pain as he rose from the full flexion 
 
                 position.  He still had at least 30o of extension 
 
                 and 30o of side bending and full rotation 
 
                 throughout the thoracolumbar spine.  Neurologic is 
 
                 normal with symmetrical reflexes and strength 
 
                 through the lower extremities.
 
            
 
                 X-rays were taken of the cervical spine, right 
 
                 shoulder and lumbosacral spine.  These may show a 
 
                 little degenerative change within the 
 
                 acromioclavicular joint of the right shoulder but 
 
                 otherwise are essentially normal.  The radiologist 
 
                 report is included for your information.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 In my opinion Mr. Ward has occupational cervical 
 
                 brachial disorder or tendonitis which involves the 
 
                 cervical spine, shoulder, and forearm on the 
 
                 right.  He also had a strain of the lumbar spine 
 
                 and is having some mechanical type back problems 
 
                 more recently.
 
            
 
                 In my opinion Mr. Ward has a permanent impairment 
 
                 of twelve percent of the right upper extremity due 
 
                 to his occupational cervical brachial disorder.  
 
                 This involves most of the upper extremity and 
 
                 trapezius to the cervical spine and therefore, it 
 
                 is translated to seven percent permanent 
 
                 impairment of the whole person.  He does have some 
 
                 occasional problems with the lumbar spine but at 
 
                 present has no permanent impairment.  It would be 
 
                 my opinion that the impairment of the upper 
 
                 extremity from the occupational cervical brachial 
 
                 disorder is a result of the repetitive trauma of 
 
                 his work as a significant cause of the factor.
 
            
 
                 At the present time I do not know of a treatment 
 
                 that would provide significant improvement in his 
 
                 condition.  Physical therapy modalities and 
 
                 periodic use of nonsteroidal anti-inflammatory 
 
                 medication would provide some relief.  It may be 
 
                 worth while to do an EMG to determine more 
 
                 objectively the involvement of the ulnar nerve at 
 
                 the elbow or carpal tunnel syndrome as part of 
 
                 this disorder.  If that would show significant 
 
                 involvement, surgical carpal tunnel release might 
 
                 be considered.
 
            
 
            (Ex. E-2 & 3).
 
            
 
                 At the time of the hearing, claimant was employed by 
 
            Camblin Plumbing and Heating at $8.00 per hour.  His duties 
 
            included soldering copper tubing, installing new pipes, and 
 
            installing underground sewers.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue before the undersigned is whether 
 
            claimant has timely filed his three petitions.  The 
 
            petitions were all filed on April 18, 1991.
 
            
 
                 Section 85.26 of the Iowa Code provides in relevant 
 
            portion:
 
            
 
                 1.  An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 An original proceeding for benefits must be commenced 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            within two years from the date of the occurrence of the 
 
            injury for which benefits are claimed or within three years 
 
            from the date of the last payment of weekly compensation 
 
            benefits if weekly compensation benefits have been paid 
 
            under section 86.13.  Section 85.26(1).  A proceeding in 
 
            review-reopening must be commenced within three years from 
 
            the date of the last payment of weekly benefits under either 
 
            an award for payments or an agreement for settlement.  
 
            Section 85.26(2).  The "discovery rule" may extend the time 
 
            for filing a claim where weekly benefits have not yet been 
 
            paid.  The rule does not extend the time for filing a claim 
 
            where benefits have been paid.  Orr v. Lewis Cent. School 
 
            Dist., 298 N.W.2d 256 (Iowa 1980).  Under the rule, the time 
 
            during which a proceeding may be commenced does not begin to 
 
            run until the claimant, as a reasonable person, should 
 
            recognize the nature, seriousness and probable compensable 
 
            character of the condition.  The reasonableness of 
 
            claimant's conduct is to be judged in light of the 
 
            claimant's education and intelligence.  Claimant must know 
 
            enough about the condition to realize that it is both 
 
            serious and work connected.  Orr, 298 N.W.2d at 261; 
 
            Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).
 
            
 
                 Failure to timely commence an action under the 
 
            limitations statute is an affirmative defense which 
 
            defendants must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).
 
            
 
                 Recently, the Iowa Supreme Court addressed the "statute 
 
            of limitations" in the workers' compensation arena.  In the 
 
            case of Oscar Mayer Foods v. Tasler, 483 N.W.2d 824 (Iowa 
 
            1992), the Iowa Supreme Court held:
 
            
 
                    The date of injury is an important 
 
         ls are 
 
                 province of administrative tribunal, not the 
 
                 court's.).  We thus reject an interpretation of 
 
                 the term "manifestation" that will always require 
 
                 an employee suffering from a repetitive-trauma 
 
                 injury to fix, as the date of accident, the time 
 
                 at which the employee first became aware of the 
 
                 physical condition, presumably through medical 
 
                 consultation, since by their very nature, 
 
                 repetitive-trauma injuries often will take years 
 
                 to develop to the point where they will constitute 
 
                 a compensable workers' compensation injury.  See 
 
                 Oscar Mayer & Co. v. Industrial Comm'n, 531 
 
                 N.E.2d 174, 176 (Ill. App. Ct. 1988). Instead, the 
 
                 Commissioner is entitled to consider a multitude 
 
                 of factors such as absence from work because of 
 
                 inability to perform, the point at which medical 
 
                 care is received, or others, none of which is 
 
                 necessarily dispositive.
 
            
 
                    Thus, for purposes of the cumulative injury 
 
                 rule, the Commissioner's determination regarding 
 
                 the date on which the injury manifests itself, so 
 
                 long as supported by substantial evidence as is 
 
                 required by Iowa Code section 17A.19(8)(f), will 
 
                 not be disturbed on appeal.  Our review of the 
 
                 record leads us to conclude that there is 
 
                 substantial support for the Commissioner's 
 
                 determination that the various traumas Tasler 
 
                 sustained in the course of her five and a half 
 
                 years with Oscar Mayer combined to manifest 
 
                 themselves as a single compensable injury on 
 
                 February 3, 1989.  Accordingly, the date of injury 
 
                 established by the Commissioner was proper.
 
            
 
                 As in Tasler, supra, there is substantial evidence in 
 
            the record to determine that the various traumas which 
 
            claimant sustained during the duration of his employment 
 
            were combined to manifest themselves as a single compensable 
 
            injury on April 24, 1989.  That date was the date on which 
 
            claimant, due to medical disqualification, was transferred 
 
            from pulling ribs to operating the Cry-O-Vac machine.  
 
            Claimant was no longer physically capable of performing the 
 
            job as a rib puller.  Claimant, as a consequence, has 
 
            complied with section 85.26.
 
 
 
                 The second issue before the undersigned deals with the 
 
            nature and extent of any permanent partial disability 
 
            benefits.  The parties have stipulated that claimant had 
 
            sustained a work injury.  The physicians at Iowa Lakes 
 
            Orthopedics Clinic treated claimant.  They examined and 
 
            treated him on numerous occasions.  Their exams revealed few 
 
            objective findings.  Most of claimant's complaints were 
 
            subjective in nature.  The functional capacity evaluation 
 
            demonstrated that claimant had movements within the normal 
 
            range.  The testing physical therapist opined that claimant 
 
            was capable of performing in the "heavy physical demand 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            level of work."  Claimant had "full active range of motion 
 
            of both shoulders."  (Ex. C)  He was advised to engage in 
 
            activities as tolerated.  Any possible restrictions were 
 
            based on subjective complaints only.  The opinions of 
 
            treating medical practitioners were given much weight.
 
            
 
                 It is acknowledged that Dr. Wolbrink rated claimant as 
 
            having a 12 percent functional impairment of the right upper 
 
            extremity.  However, the opinion of Dr. Wolbrink is not 
 
            accorded as much weight as are the opinions of the 
 
            orthopedic surgeons at the Great Lakes Orthopedics Clinic.  
 
            The treating physicians, including Dr. Donohue, had ample 
 
            opportunities to examine and treat claimant.  Dr. Wolbrink, 
 
            on the other hand, was retained only to provide an 
 
            evaluation for purposes of litigation.  He examined claimant 
 
            on one occasion.  That occasion occurred more than one year 
 
            after claimant had voluntarily terminated his employment 
 
            with defendant-employer.  The opinion of Dr. Wolbrink is not 
 
            given much weight.  Consequently, it is the determination of 
 
            the undersigned that claimant has not sustained any 
 
            permanent disability as a result of his work injury/injuries 
 
            on April 24, 1989.  Claimant takes nothing further from 
 
            files numbered 979230, 979231 and 979232.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Each party shall pay the party's costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            606 Ontario Street
 
            P O Box 188
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. John M. Comer
 
            Attorney at Law
 
            P O Box 515   Dept #41
 
            Dakota City, Nebraska  68731
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               5-1800; 2400
 
                                               Filed November 19, 1992
 
                                               MICHELLE A. McGOVERN
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ABBY D. WARD,  
 
                      
 
                 Claimant,                 File Nos. 929589/979230
 
                                                     979231/979232
 
 
 
            vs.                            A R B I T R A T I O N
 
 
 
            IBP, INC.,    
 
                                             D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant was unable to prove that he had sustained any 
 
            permanent partial disabilities because of repetitive motions 
 
            in the work place.  Claimant had no objective evidence to 
 
            support his claim for benefits.
 
            
 
            2400
 
            The deputy industrial commissioner held that for purposes of 
 
            determining an injury date, the injury was held to have 
 
            manifested itself on the date claimant was medically 
 
            disqualified from boning ribs and was transferred to 
 
            operating a Cry-O-Vac machine.  The rationale of Oscar Mayer 
 
            Foods v. Tasler was followed.  As a consequence, claimant 
 
            timely filed his petitions pursuant to section 85.26.
 
            
 
 
         
 
         
 
         
 
         
 
                                         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         TIMOTHY ALLEN CORLEY,           :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 929739
 
         DEALERS WAREHOUSE COMPANY,      :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         KEMPER INSURANCE COMPANY,       :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
                     
 
              This matter has been remanded to the industrial commissioner 
 
         from the district court.  In an arbitration decision filed July 
 
         15, 1991 claimant was awarded temporary total disability benefits 
 
         and reasonable and necessary medical benefits.  At that time the 
 
         issue of entitlement to permanent disability had been bifurcated.  
 
         The employer and its insurance carrier (hereinafter defendants) 
 
         filed a notice of appeal.  It was ruled that the attempted appeal 
 
         was interlocutory and defendants sought judicial review of that 
 
         ruling.  The district court in its decision on July 22, 1992 
 
         overruled the agency's ruling dismissing the appeal as 
 
         interlocutory and remanded to the industrial commissioner for a 
 
         determination on the merits of defendants' appeal.  Subsequent to 
 
         the remand by the district court a hearing was held and an 
 
         arbitration decision filed on the bifurcated issue of entitlement 
 
         to permanent disability benefits.  In an arbitration decision 
 
         filed December 30, 1993, claimant was awarded fifty weeks of 
 
         permanent partial disability commencing June 1, 1991.  That 
 
         decision indicated that healing period would end May 31, 1991.  
 
         That decision has not been appealed. 
 
         
 
              Because the arbitration decision filed December 30, 1993 
 
         specified claimant's entitlement to permanent disability benefits 
 
         and has become final, it is unclear whether a remand decision is 
 
         appropriate.  However, because the district court has directed 
 
         that the merits of defendants' appeal be considered, this 
 
         decision will resolve the district court's directive.
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy on April 15, 1991 and all exhibits admitted into the 
 
         record at that hearing, has been reviewed de novo on remand.  The 
 
         decision of the deputy filed July 15, 1991 is affirmed and is 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         adopted as the remand decision in this case with the following 
 
         additional comments:
 
         
 
              In a subsequent hearing and proposed decision which has now 
 
         become final it was determined that claimant had sustained a 
 
         permanent disability.  Therefore, the characterization of weekly 
 
         indemnity benefits in this matter should ultimately be that those 
 
         weekly benefits are healing period benefits.  However, at the 
 
         time of the hearing and the proposed decision which is the 
 
         subject of this remand decision the award of weekly indemnity 
 
         benefits was characterized as temporary total disability 
 
         benefits.  As determined in the subsequent proceeding the 
 
         temporary weekly indemnity benefits should terminate on May 31, 
 
         1991 when claimant returned to work.
 
         
 
              Defendants shall pay the costs of this matter including 
 
         transcription of the hearing and shall reimburse claimant for the 
 
         filing fee if previously paid by claimant.
 
         
 
              Signed and filed this ____ day of August, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Delbert C. Binford
 
         Attorney at Law
 
         1200 Hub Tower
 
         699 Walnut St.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       5-1801
 
                                       Filed August 22, 1994
 
                                       Byron K. Orton
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         TIMOTHY ALLEN CORLEY,           :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 929739
 
         DEALERS WAREHOUSE COMPANY,      :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         KEMPER INSURANCE COMPANY,       :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         5-1801
 
         
 
              Claimant sustained his burden of proof that his injury arose 
 
         out of and in the course of his employment.
 
         
 
              Claimant was awarded temporary total disability benefits.
 
         
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TIMOTHY ALLEN CORLEY,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 929739
 
            DEALERS WAREHOUSE COMPANY,    
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MANUFACTURERS   
 
            MUTUAL INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                 INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Timothy 
 
            Allen Corley, claimant, against Dealers Warehouse Company, 
 
            employer, and American Manufacturers Mutual Insurance 
 
            Company, insurance carrier, defendants for benefits as the 
 
            result of an injury that occurred on September 12, 1989.  A 
 
            hearing was held in Des Moines, Iowa, on May 6, 1993, and 
 
            the case was fully submitted at the time of the hearing.  
 
            Claimant was represented by Delbert C. Binford.  Defendants 
 
            were represented by Joe M. Barron.  The record consists of 
 
            the testimony of Timothy A. Corley, Claimant.  Claimant's 
 
            exhibits received into evidence for this hearing are exhibit 
 
            K, pages 71 to 80; exhibit L, pages 87 and 88; exhibit M, 
 
            pages 89 to 112; exhibit N, pages 113 and 114; exhibit O, 
 
            page 115; exhibit P, page 116; exhibit Q, page 117 to 154; 
 
            exhibit R, pages 155 to 158; exhibit T, the district court 
 
            proceedings in the industrial commissioner's file; exhibit 
 
            U, pages 1 to 19 (Transcript pages 9 to 18).  Claimant's 
 
            proposed exhibit S, was excluded because it was not timely 
 
            served and in the opinion of the deputy constituted unfair 
 
            surprise (Tran. pp. 10-14).  Defendants' exhibits received 
 
            into evidence are as follows:  exhibit 1, 2, 4, and 5; 
 
            exhibit D, pages 9 to 25; exhibit E, pages 32 and 33; 
 
            exhibit G, page 39; exhibit H, pages 40, 45, and 48 to 50; 
 
            exhibit I, pages 51 and 52; exhibit J, pages 53 and 54; and 
 
            the testimony of Gerold Young, Gary Balch, Timothy Kuhn, and 
 
            Lloyd Ramey, which appears in the transcript of the first 
 
            hearing on pages 77 through 154 (Tran. pp. 6 to 9).  The 
 
            deputy ordered a transcript of the hearing.  
 
            
 
                               PRELIMINARY MATTER
 
            
 
                 A previous hearing took place on April 15, 1991.  A 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            deputy industrial commissioner filed a decision on July 15, 
 
            1991, which determined (1) that claimant sustained an injury 
 
            on September 12, 1989, which arose out of and in the course 
 
            of employment with employer, (2) that the injury was the 
 
            cause of temporary disability, (3) that claimant was 
 
            entitled to a running award of temporary disability benefits 
 
            and (4) that claimant was entitled to medical benefits.
 
            
 
                 Official Notice is taken of the prior decision of July 
 
            15, 1991 and the transcript of that hearing (Tran. p. 8).  
 
            Iowa Administrative Procedure Act Rule 17A.14(4).  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues to be 
 
            determined as a result of this second hearing.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which he is 
 
            entitled; and
 
            
 
                 Whether claimant is entitled to penalty benefits.
 
            
 
                 In the event of an award of permanent disability 
 
            benefits it will be necessary to determine the commencement 
 
            date of benefits because the prior deputy made a running 
 
            award of temporary disability benefits, and in order to 
 
            determine the commencement date of permanent disability 
 
            benefits, it will be necessary to determine when the 
 
            temporary disability benefits ended.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 It is determined that the injury of September 12, 1989 
 
            (1) was the cause of permanent disability, (2) that claimant 
 
            has sustained a 10 percent industrial disability to the body 
 
            as a whole, and (3) that claimant is entitled to 50 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Claimant was injured while loading downspout onto a 
 
            fork lift with another employee.  Claimant testified, "... 
 
            in the process of putting the box onto the forks and the 
 
            fork lift, I felt a sharp pain in the lower back." (Tran. p. 
 
            37).
 
            
 
                 Claimant was initially seen by Roger H. Brown, D.C., on 
 
            September 14, 1989 (Ex. B, p. 2).  Dr. Brown diagnosed a 
 
            lumbosacral sprain/strain (Ex. B, p. 7A).  
 
            
 
                 Claimant also saw Dr. Brown again shortly before this 
 
            hearing on March 18, 1993, for back symptoms that recurred 
 
            on March 15, 1993, when he felt a pop in his back while 
 
            getting out of bed.  In a report dated May 3, 1993, Dr. 
 
            Brown found that claimant suffered from "... acute lumbar 
 
            facet syndrome complicated by degenerative disc disease and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            a lumbosacral transitional vertebra." (Ex. L, p. 88).  Dr. 
 
            Brown added that exacerbations could occur on the slightest 
 
            provocation.  Dr. Brown provides causal connection to 
 
            permanent disability from this injury  of September 12, 
 
            1989, with the following words:  "The previous injury is 
 
            significant because the tissues that were injured heal with 
 
            a scar tissue that is brittle and inelastic, thus is much 
 
            more susceptible to re-injury." (Ex. L, p. 88).
 
            
 
                 Thus, Dr. Brown concluded that the injury was the cause 
 
            of a permanent susceptibility or predisposition to re-injury 
 
            in the future.  A susceptibility or predisposition to 
 
            re-injury or future injury is determined to be a permanent 
 
            disability.  However, Dr. Brown did not provide a permanent 
 
            functional or physical impairment rating for this injury.  
 
            
 
                 Claimant went to see Robert Foley, M.D., on October 11, 
 
            1989.  Dr. Foley's x-rays were normal.  He also reported 
 
            that claimant refused to receive physical therapy 
 
            treatments.  Dr. Foley referred claimant to William R. 
 
            Boulden, M.D., an orthopedic surgeon.  Dr. Foley did not 
 
            indicate that there would be any permanent impairment or 
 
            disability, however, Dr. Foley only saw claimant in the 
 
            early phases of treatment (Ex. C, p. 8).
 
            
 
                 Claimant saw Dr. Boulden on October 19, 1989.  The 
 
            doctor diagnosed myofascial pain with tightness.  He 
 
            recommended stabilization exercises and work hardening (Ex. 
 
            D, p. 9).
 
            
 
                 The work hardening was terminated prematurely by the 
 
            physical therapist on December 21, 1989, for the reason that 
 
            claimant failed to fully cooperate with his own 
 
            rehabilitation.  Dr. Boulden then placed claimant in a light 
 
            duty work classification.  He said that claimant could not 
 
            perform his former job because claimant had exerted 
 
            submaximal effort and exhibited a lack of motivation 
 
            throughout the work hardening program.  Therefore he was not 
 
            physically reconditioned to perform his former job.  Dr. 
 
            Boulden said that he could not in good conscience send 
 
            claimant back to his old job because of claimant's lack of 
 
            physical rehabilitation which was due to claimant's lack of 
 
            motivation and submaximal effort to become rehabilitated 
 
            (Ex. D, pp. 12 & 13).
 
            
 
                 Thomas W. Bower, P.T., recommended that the physical 
 
            therapy be terminated on December 22, 1989, because (1) 
 
            claimant's perceived pain complaints were inconsistent with 
 
            most orthopedic problems and (2) because claimant made no 
 
            progress or improvement during the entire course of the 
 
            program because of his poor motivation and submaximal effort 
 
            (Ex. D, pp. 13-15), based on the physical capacity 
 
            examination that Mr. Bower conducted on November 17, 1989 
 
            (Ex. H, pp. 40, 41-44).
 
            
 
                 Dr. Boulden determined that claimant "... would have 
 
            improved better than he did, if he would have worked harder 
 
            at the program," based on most other cases (Ex. D, p. 23).
 
            
 
                 Although the restrictions of Dr. Boulden at the time of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the previous hearing would justify an award of running 
 
            temporary disability benefits at that time, subsequent 
 
            evidence at the second hearing shows (1) that they were not 
 
            intended to be permanent, (2) that they were not renewed 
 
            after a subsequent extensive physical capacity examination 
 
            and (3) that claimant performed work after the first hearing 
 
            and prior to the second hearing that demonstrated that these 
 
            restrictions are no longer necessary.  These restrictions 
 
            were only intended to last until claimant regained physical 
 
            rehabilitation.
 
            
 
                 There was no permanent impairment rating at the time of 
 
            the first hearing.  Therefore, the first deputy could not 
 
            use maximum medical improvement as a standard to terminate 
 
            temporary disability.  Iowa Code section 85.34(1).  Claimant 
 
            was temporarily totally disabled at that time and had not 
 
            returned to work and from the evidence available at that 
 
            time, it could not be said that he could return to 
 
            substantially similar employment.  Iowa Code section 
 
            85.33(1).
 
            
 
                 At the time of this hearing the fact that claimant was 
 
            foreclosed from his former employment was not proven to be 
 
            caused by a lack of proper medical treatment on the part of 
 
            defendants, but rather it was because of claimant's own lack 
 
            of motivation and his own submaximal effort to achieve 
 
            rehabilitation.  Claimant should not be allowed to parlay 
 
            his industrial disability into a greater award because of 
 
            his own failure to cooperate with the medical treatment that 
 
            was offered to achieve the purpose of the fullest 
 
            rehabilitation possible.  
 
            
 
                 Claimant should not be allowed to purposely obstruct 
 
            his own recovery and obstruct a determination of what his 
 
            recovery might have been had he exerted a reasonable effort, 
 
            and at the same time profit from an award of increased 
 
            industrial disability based on claimant's obstruction of his 
 
            recovery and the obstruction of the ability of an 
 
            independent observer to determine what it might have been if 
 
            claimant had exerted a reasonable effort (Ex. H, p. 48).
 
            
 
                 Dr. Boulden and Mr. Bower reviewed a video of claimant 
 
            carrying large garbage containers down a slope, bending over 
 
            at the waist and picking something up, getting in and out of 
 
            a vehicle without significant difficulty, running up two 
 
            stairs at a time and extending his leg in the air to step 
 
            over a barrier.  They found these activities inconsistent 
 
            with claimant's pain complaints but they were unable to 
 
            change his employment classification from sedentary because 
 
            they were unable to measure or quantify what they viewed in 
 
            the video (Ex. D, pp. 16 & 17).  Dr. Boulden and Mr. Bower 
 
            did find, "There is no question, that all aspects of this 
 
            case have shown some questionable credibility of this 
 
            individual." (Ex. D, p. 17; Ex. 4).
 
            
 
                 Exhibit 4 is a video taken on various dates --- January 
 
            14, 1990, January 15, 1990, January 31, 1990 and February 
 
            12, 1990.  It shows the activities of claimant as described 
 
            by Dr. Boulden and Physical Therapist Bower.  Exhibit 5 is 
 
            another video taken on May 7, 1990 and May 8, 1990, showing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant carrying a child approximately two years old.  To a 
 
            layman it would not appear that claimant's ability to lift, 
 
            carry, run or jump was significantly impaired.
 
            
 
                 Dr. Boulden ordered an MRI of the lumbar spine on March 
 
            13, 1990.  This film indicated degenerative disc disease at 
 
            the level of L4-5, with no evidence of protrusion or 
 
            herniation.  Disc space height was well maintained.  The 
 
            thecal sac maintained normal morphalogy.  There was no 
 
            evidence of formaminal stenosis.  Lumbar alignment was 
 
            within normal alignment.  The remaining discs demonstrated 
 
            no disc degeneration or herniation (Ex. D, pp. 32 & 33).  
 
            
 
                 On April 18, 1990, Dr. Boulden, as the primary treating 
 
            physician, (Tran. pp. 21 & 38) supplies causal connection 
 
            between claimant's work and the injury as well as the injury 
 
            and claimant's disability in the following statements.  "We 
 
            feel that Mr. Corley's low back condition is related to the 
 
            injury which, according to his history, occurred starting 
 
            [September] 12, 1989.  ... In conclusion, I feel that Mr. 
 
            Corley's disc problems have been exacerbated by his 
 
            work-related injury and in fact, may have been caused by 
 
            it." (Ex. D, pp. 18 & 19).
 
            
 
                 Claimant did not see Dr. Boulden between June 12, 1990 
 
            and August 22, 1991.  However, during that period of time he 
 
            wrote to defendants' counsel in which he stated that he 
 
            recommended surgery in the event that claimant's pain 
 
            progressed to the point that he could no longer tolerate it 
 
            and if claimant was willing to assume the risks of surgery 
 
            (Ex. D, pp. 26, 28-30).  
 
            
 
                 On August 22, 1991, Dr. Boulden noted that claimant had 
 
            returned to work and that he recommended against surgery 
 
            unless claimant's symptoms would dictate it (Ex. N, p. 
 
            114.5).
 
            
 
                 Claimant was examined by Daniel J. McGuire, M.D., an 
 
            orthopedic surgeon, who reported on November 28, 1990.  Dr. 
 
            McGuire was critical of claimant's work record, his 
 
            education, his educational effort, and claimant's 
 
            cooperation with the medical treatment that had been 
 
            previously offered in this case.  Dr. McGuire characterized 
 
            claimant as "belligerent" (Ex. I, p. 51).  Dr. McGuire 
 
            stated, "He refused to bring his diagnostic studies to the 
 
            office today, on the advice of his lawyer.  Again, another 
 
            example of his incredible belligerence in trying to help 
 
            take care of himself.  It is obvious that this patient has 
 
            no desire to help us take care of him." (Ex. I, p. 51).
 
            
 
                 Dr. McGuire did not say that claimant's complaints were 
 
            or were not caused by the injury of September 12, 1989, but 
 
            rather he concluded, "IMPRESSION:  Low back pain, etiology 
 
            unknown." (Ex. I, p. 52).
 
            
 
                 Dr. McGuire found claimant's denial of prior back 
 
            problems inconsistent with his medical records.  The doctor 
 
            did not believe surgery was indicated for this injury.  He 
 
            added, 
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    "Also with his litigious history, I am sure he 
 
                 would find problems with his surgeon and proceed 
 
                 from there.  I apologize that I am so brutely 
 
                 (sic) honest, but we have to be realistic about 
 
                 this gentleman.  He has shown no real significant 
 
                 work history for a 24-year-old gentleman.  He has 
 
                 no educational skills to be able to proceed in a 
 
                 different field.  He has shown no effort at trying 
 
                 to help himself and improve his life style. ... I 
 
                 have no desire to assume the care of this 
 
                 gentleman.  I have been asked to render an 
 
                 opinion.  I think it would be a waste of my time 
 
                 to assume the care of this patient since he has 
 
                 demonstrated no previous history of desire to get 
 
                 better (Ex. I, p. 52).
 
            
 
                 Dr. McGuire did not give a professional medical opinion 
 
            as to whether claimant had or had not sustained a physical 
 
            or functional impairment based upon the Guides to Evaluation 
 
            of Permanent Impairment published by the American Medical 
 
            Association, the Orthopedic Surgeons Guide, or any other 
 
            rating criteria.  
 
            
 
                 However, the disability evaluation of Dr. McGuire is as 
 
            follows:  "DISABILITY:  Zero (0).  From my standpoint he can 
 
            return to a light duty job and with progressive 
 
            conditioning, hopefully be able to return to his normal 
 
            duty." (Ex. I, p. 52).  
 
            
 
                 Thus, not only the treating orthopedic surgeon, Dr. 
 
            Boulden, but also an evaluating orthopedic surgeon for 
 
            defendants, Dr. McGuire, were hopeful and had expectations 
 
            that claimant could resume normal work if he cooperated with 
 
            his medical rehabilitation program.  However, both Dr. 
 
            Boulden and Dr. McGuire were unable to state that claimant 
 
            could or could not resume his normal duties because claimant 
 
            obstructed a determination on this point by refusing to 
 
            seriously cooperate with the rehabilitation that was 
 
            offered.  Because of this it is impossible to determine 
 
            whether he is in fact foreclosed from his former employment 
 
            or not.  Schofield v. Iowa Beef Processors, Inc., II Iowa 
 
            Industrial Commissioner Report 334, (Appeal Decn. 1984).  
 
            
 
                 Thus, claimant has deprived himself of the necessary 
 
            proof that he is foreclosed from his former employment or 
 
            employments.  Michael v. Harrison County, Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 218, 220 
 
            (App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe 
 
            Products Co., I Iowa Industrial Commissioner Report 282 
 
            (Appeal Decn. 1984).
 
            
 
                 On November 23, 1992, claimant was again examined by 
 
            Physical Therapist Bower.  Mr. Bower concluded his report as 
 
            follows:  "Dr. Boulden has concluded that the injuries that 
 
            occurred at work were indeed certainly the primary causative 
 
            factor in this patient's overall complaints.  Therefore, 
 
            with that conclusion, we feel this patient has sustained an 
 
            overall 5% impairment to the body as a whole." (Ex. N, pp. 
 
            113 & 114).  This letter which is addressed to defendants' 
 
            attorney is signed by both Thomas W. Bower, P.T., and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            William R. Boulden, M.D..  Thus, both the physical therapist 
 
            chosen by defendants and the treating orthopedic surgeon 
 
            selected by defendants clearly establish that the injury of 
 
            September 12, 1989, was the cause of a 5 percent impairment 
 
            to the body as a whole (Ex. N, pp. 113 & 114).
 
            
 
                 Claimant was evaluated still another time by Physical 
 
            Therapist Bower on February 3, 1993, who conducted an 
 
            extensive and intensive functional capacity examination on 
 
            that date (Ex. M, pp. 93-113).  Physical Therapist Bower 
 
            repeated his earlier statements concerning causation and 
 
            impairment but he indicated that in view of the fact that 
 
            claimant had degenerative disc disease that a 5 percent 
 
            impairment rating was generous.  Mr. Bower stated, 
 
            
 
                    "... An impairment rating was rendered on the 
 
                 23rd of November of 1992, giving Mr. Corley a 5% 
 
                 impairment to the body as a whole.  Even today, I 
 
                 feel this was likely somewhat generous inasmuch as 
 
                 the degenerative changes noted through MRI 
 
                 undoubtedly were preexisting and were nothing more 
 
                 than aggravated by the incidents occurring in 
 
                 September." (Ex. M, p. 89).  
 
            
 
                 Mr. Bower continued to find that claimant's perceived 
 
            complaints of pain did not correlate with common clinical 
 
            tests and measurements for legitimate pain.  He gives 
 
            several detailed examples from his testing (Ex. M, pp. 
 
            90-92).  Mr. Bower concluded, "It, therefore, is the 
 
            conclusion that there is indeed some symptom exaggeration 
 
            appearing to exist with this patient." (Ex. M, p. 90).
 
            
 
                 In summary, then, Dr. Brown found that some permanent 
 
            impairment caused by this injury by way of increased 
 
            susceptibility and predisposition to re-injury.  Dr. Boulden 
 
            and Physical Therapist Bower found that there was a 5 
 
            percent permanent impairment to the body as a whole based 
 
            upon an aggravation of claimant's previously existing 
 
            degenerative disc condition at L4-5.  Dr. McGuire was unable 
 
            to determine the etiology of claimant's complaints of pain 
 
            and failed to give a permanent impairment rating of any kind 
 
            based upon the factors use in the AMA Guides or any other 
 
            criteria for permanent impairment ratings.  Dr. McGuire did 
 
            say that in his opinion claimant had zero (0) disability.
 
            
 
                 Thus, the opinions of Dr. Brown and Dr. Boulden and 
 
            Physical Therapist Bower are preferred over the absence of 
 
            an opinion on causal connection and permanent functional or 
 
            physical impairment on the part of Dr. McGuire.  Rockwell 
 
            Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 
 
            1985).  Dr. McGuire's opinion of zero disability is 
 
            interpreted to mean that he also believed that claimant also 
 
            had no physical or functional impairment.  Other evidence of 
 
            industrial disability is considered as follows.
 
            
 
                 Claimant was 22 years old at the time of the injury and 
 
            26 years old at the time of this hearing.  Claimant's young 
 
            age tends to reduce his industrial disability for the reason 
 
            that claimant had not yet reached the peak of his lifetime 
 
            earning capacity and he has several years in which to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            develop other career avenues which would enhance his earning 
 
            capacity.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Decn. April 28, 1989).
 
            
 
                 Claimant dropped out of high school in the second or 
 
            junior year and had not as yet obtained a GED (Tran. p. 40).  
 
            The absence of an education tends to increase a person's 
 
            industrial disability, however, at his young age claimant is 
 
            capable of obtaining a GED as well as other academic and 
 
            on-the-job training.  Conrad v. Marquette School, Inc., IV 
 
            Iowa Industrial Commissioner Report 74, 89 (1984).  
 
            
 
                 Claimant's past employments include (1) assistant 
 
            manager for fast food restaurants, (2) roofing laborer and 
 
            (3) installer of chain link fences and gates (Tran. p. 41).  
 
            Therefore, claimant has demonstrated his ability to learn 
 
            both management and laboring skills.  It was not 
 
            demonstrated by any of the medical evidence or nonmedical 
 
            evidence that claimant was actually foreclosed from 
 
            performing any of these past employments.  Therefore, it was 
 
            not demonstrated that claimant is foreclosed from returning 
 
            to any of these former employments and earning the current 
 
            rate which they are paying at this time.  Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (App. Decn. January 30, 
 
            1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).  
 
            
 
                 Claimant testified that he was earning $6.75 per hour 
 
            with employer at the time of this injury and at the time of 
 
            the hearing he was earning $6 per hour as a furniture 
 
            repairman stripping, sanding, regluing and refinishing 
 
            furniture (Tran. p. 34).  This constitutes an 11 percent 
 
            actual loss of earnings.  Likewise, claimant's income tax 
 
            returns for the first nine and one-half months in 1989 (the 
 
            year of the injury) (Ex. P, pp. 139-147) show that he earned 
 
            less in 1992 (Ex. P, pp. 120-126), when the fact that 
 
            claimant did not work in the last two and one-half months of 
 
            1989 is taken into account.  This is also demonstrated by 
 
            the projection of income prepared by claimant's attorney 
 
            (Ex. O, pp. 115 & 116).  
 
            
 
                 At the same time, claimant's loss of actual earnings, 
 
            which creates a presumption of loss of earnings capacity, 
 
            must be offset by the fact that claimant did not cooperate 
 
            with his physical rehabilitation and did not make a maximal 
 
            effort to be physically rehabilitated.  This forced 
 
            claimant's physician, Dr. Boulden, in conscience, to 
 
            restrict claimant to light duty work.  Thus, it is not 
 
            possible to accurately assess how much of claimant's loss of 
 
            actual earnings and loss of possible earning capacity is 
 
            attributable to his own failure to cooperate with the 
 
            medical care that was offered and how much is attributable 
 
            to this injury.  Claimant's failure to cooperate with the 
 
            medical care offered and the rehabilitation program reduces 
 
            his industrial disability.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Claimant testified that his search for other or better 
 
            employment was not successful (Tran. pp. 40 & 42).  However, 
 
            it must be considered that claimant only applied for work at 
 
            three different prospective employers which in turn limited 
 
            his ability to find employment.
 
            
 
                 Claimant's physical abilities do not appear to be 
 
            severely limited.  Claimant testified that he has been able 
 
            to play basketball and football of a casual nature with 
 
            relatives and friends (Tran. p. 42).  He also performs 
 
            isometric exercises (Tran. p. 43).  
 
            
 
                 Based on claimant's testimony he is performing work in 
 
            the medium and heavy category even though at one time he was 
 
            restricted by Dr. Boulden to light duty work.  In his 
 
            current employment as a furniture repairman claimant strips, 
 
            sands, reglues and refinishes furniture (Tran. p. 34).  Most 
 
            of his work is at waist level.  He has performed this work 
 
            for approximately two years from May of 1991 to May of 1993 
 
            (Tran. p. 34).  At one point he testified that he lifts 20 
 
            pounds from floor to waist and about 40 pounds from waist to 
 
            chest (Tran. p. 35).  He also stated that sometimes he is 
 
            required to lift as much as 75 to 100 pounds with the help 
 
            of another person (Tran. p. 50).  He said that once in a 
 
            great while he lifts over 50 pounds if it is needed (Tran. 
 
            p. 51).  
 
            
 
                 Light duty work is 20 pounds or less.  Medium work is 
 
            between approximately 20 pounds and 50 pounds.  Heavy work 
 
            is lifting more than 50 pounds.  Thus, it appears that 
 
            claimant has at least on occasion, performed both medium and 
 
            heavy lifting in his current job which exceeds his claimed 
 
            weight restriction of only 20 pounds.  
 
            
 
                 At the same time, claimant testified at the hearing 
 
            that during the functional capacity examination of Physical 
 
            Therapist Bower it caused him immediate problems with his 
 
            low back, buttocks and legs, on the right more than the 
 
            left, when he was required to lift the boxes used in this 
 
            examination (Tran. pp. 44 & 45).  Bower's reports indicate 
 
            that when claimant got to a certain point he simply quit 
 
            trying.  
 
            
 
                 By comparison, claimant's job at the time of the injury 
 
            for employer involved operating a forklift (tow motor) and 
 
            manually lifting between 50 and 95 pounds at times (Tran. 
 
            pp. 47 & 48).  Thus, it would appear that the lifting 
 
            requirements of claimant's job for employer, and claimant's 
 
            job with his current employer, are not widely different.
 
            
 
                 Claimant acknowledged that on one of his applications 
 
            for employment which is dated October 20, 1992, there is a 
 
            statement just above his signature which instructed him to 
 
            describe any position or types of positions for which he 
 
            should not be considered, or job duties which he could not 
 
            perform because of physical, mental or medical disability.  
 
            Claimant acknowledged that he wrote "none" in response to 
 
            this entry (Tran. p. 55).  Claimant explained that the job 
 
            he was applying for was a delivery driver position 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            delivering bearing parts and he assumed that it would not 
 
            include heavy work (Tran. p. 62).
 
            
 
                 Claimant testified that he was not taking medications 
 
            at the time of the hearing (Tran. p. 47).  He further 
 
            testified that Dr. Boulden's physician's assistant 
 
            recommended isometric exercises and Dr. Brown recommended 
 
            lying down (Tran. pp. 48 & 49).  Claimant further testified 
 
            that his pain has continued but that he is not contemplating 
 
            surgery (Tran. pp. 46 & 47).
 
            
 
                 The restrictions imposed by Dr. Boulden on December 4, 
 
            1990 of no repetitive bending, twisting and lifting with his 
 
            back and no prolonged sitting and standing are considered to 
 
            be temporary restrictions, pending the full or complete 
 
            physical rehabilitation of claimant, which are no longer in 
 
            affect at the time of the hearing on May 6, 1993.  There is 
 
            no indication that they were permanent restrictions.  They 
 
            were not mentioned by Mr. Bower in claimant's final physical 
 
            capacity examination.  Furthermore, neither (1) claimant's 
 
            job for employer or (2) his current employer, required 
 
            bending, twisting, or lifting that could be described as 
 
            repetitive in nature.  According to claimant's testimony 
 
            these functions were only occasional.  Nor is there any 
 
            evidence that claimant has performed any prolonged standing 
 
            or sitting in either his employment for this employer or his 
 
            current employment.  
 
            
 
                 The medical records introduced by defendants show that 
 
            claimant was involved in an automobile accident on May 28, 
 
            1986 and another automobile accident on November 28, 1987.  
 
            Claimant acknowledged this was true (Tran. pp. 56 & 57).  
 
            Claimant explained that he had not missed any work from 
 
            employer prior to this injury due to back problems and that 
 
            at the time of the injury he was able to perform all the 
 
            functions required by his job for employer (Tran. p. 63).  
 
            He denied having any back problems immediately prior to or 
 
            at the time of this injury (Tran. p. 63).  He denied and 
 
            there is no evidence that he was seeking medical treatment 
 
            for any back problems at the time of this injury (Tran. p. 
 
            64; Defts' exhibits 1 & 2).  
 
            
 
                 However, these same medical records show that claimant 
 
            did receive extensive treatment with a local orthopedic 
 
            surgeon and also with the department of neurology at The 
 
            University of Iowa Hospitals and Clinics (Clmt's Exs. 1 & 
 
            2).  
 
            
 
                 Lloyd Ramey, Timothy Kuhn, and Gary Balch testified 
 
            that they had witnessed claimant perform strenuous work of 
 
            substantial lifting without any difficulty on one or more 
 
            occasions.
 
            
 
                 Wherefore, taking into consideration (1) that 
 
            claimant's injury was not a severely traumatic injury but 
 
            rather was described as a sharp pain in his back while 
 
            loading downspout, (2) that the physical therapist and 
 
            doctor who determined that claimant had a permanent 
 
            impairment of 5 percent added that this determination was 
 
            generous, (3) the fact that claimant was basically treated 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            with conservative measures of medication, recommended 
 
            physical therapy, and work hardening and no surgery was 
 
            required, but that this injury has caused a susceptibility 
 
            to future injury, (4) that claimant's plain x-rays were 
 
            normal, (5) that claimant's MRI disclosed a preexisting 
 
            degenerative disc disease at L4-5 which contributed to 
 
            claimant's disability in this case, (6) that claimant is not 
 
            permanently restricted from any particular kind of work at 
 
            this time and can perform his work with his current 
 
            employer, (7) considering that claimant's restriction by Dr. 
 
            Boulden to light duty work was caused by his own failure to 
 
            cooperate with the medical rehabilitation that was offered 
 
            and make a sincere, reasonable effort to fully accomplish 
 
            everything that the program offered, (8) considering that 
 
            claimant is physically active in his personal life and his 
 
            current employment and that he is taking no medications and 
 
            not seeking any continued medical treatment, (9) considering 
 
            that claimant has not made an extensive effort to find 
 
            different or better employment, (10) based on claimant's age 
 
            of 22 at the time of the injury and 26 at the time of the 
 
            hearing, (11) claimant's education of only 11 years in high 
 
            school and no GED, (12) considering claimant's past 
 
            employments and his adaptability to perform various jobs of 
 
            either a physical or managerial level, (13) considering that 
 
            claimant has sustained an 11 percent actual loss of 
 
            earnings, (14) considering all the evidence introduced in 
 
            this case, (15) considering all of the factors to determine 
 
            industrial disability, Peterson v. Truck Haven Cafe, Inc., 
 
            vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (App. Decn. February 28, 1985); 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (App. Decn. March 26, 
 
            1985); and applying agency expertise [Iowa Administrative 
 
            Procedure Act 17A.14(i) it is determined that claimant has 
 
            sustained a 10 percent industrial disability to the body as 
 
            a whole which was caused by the injury of September 12, 1989 
 
            and that claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits.
 
            
 
               termination of temporary disability-commencement of 
 
                               permanent disability
 
            
 
                 The previous deputy determined that claimant was 
 
            entitled to a running award of temporary disability benefits 
 
            commencing on January 4, 1990.
 
            
 
                 These temporary disability benefits can now be 
 
            characterized as healing period benefits for the reason that 
 
            it has been determined that claimant has sustained a 
 
            permanent injury.  Iowa Code section 85.34(1).
 
            
 
                 Permanent disability begins at the end of healing 
 
            period.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  Iowa 
 
            Code section 85.34(1).
 
            
 
                 After the previous hearing which took place on April 
 
            15, 1991, claimant testified that he returned to work on 
 
            June 1, 1991, with the current employer on a full-time basis 
 
            (Tran. pp. 44 & 45).  Thus, it is determined that healing 
 
            period should end when claimant returned to work which was 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            employment substantially similar to the employment in which 
 
            the employee was engaged at the time of the injury.  Iowa 
 
            Code section 85.34(1).
 
            
 
                 Thus, healing period should terminate on May 31, 1991 
 
            and permanent partial disability benefits should commence on 
 
            June 1, 1991.
 
            
 
                                 PENALTY BENEFITS
 
            
 
                 It is determined that claimant is not entitled to 
 
            penalty benefits.
 
            
 
                 Where there is a legitimate dispute on either causation 
 
            or the extent of entitlement defendants are not liable for 
 
            penalty benefits.  Juste v. HyGrade Food Products Corp., IV 
 
            Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984).
 
            
 
                 In this case it was fairly debatable whether the injury 
 
            caused any impairment and if so how much.  Dr. Boulden and 
 
            Physical Therapist Bower questioned whether claimant was 
 
            permanently disabled by finding that his pain complaints 
 
            were not consistent with normal medical knowledge and 
 
            experience and that claimant had not exhibited a reasonable 
 
            effort to rehabilitate himself.  Dr. McGuire was very 
 
            critical of claimant on various points and concluded that he 
 
            had no disability from this injury.  Dolan v. Aid Insurance 
 
            Company, 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar Meyer 
 
            Foods Corp., file number 724378 (1989); Collins v. Hawkeye 
 
            Moving & Storage, file number 873651 (Appealed and settled). 
 
            
 
                 Likewise, even though claimant denied he was having any 
 
            problems with his low back on account of the two automobile 
 
            accidents, defense counsel showed that this testimony was 
 
            inconsistent with prior testimony of claimant (Tran. pp. 
 
            60-65).  Claimant's counsel admitted there were 
 
            inconsistencies in his testimony (Tran. p. 65).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made.
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of September 
 
            12, 1989 was the cause of permanent disability.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that he sustained a 10 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 50 weeks of permanent partial disability benefits.  Iowa 
 
            Code section 85.34(2)(u).  
 
            
 
                 That claimant sustained the burden of proof by  
 
            preponderance of the evidence that his healing period ended 
 
            on May 31, 1991 and that his permanent partial disability 
 
            benefits should commence on June 1, 1991.  Teel v. McCord, 
 
            394 N.W.2d 405 (Iowa 1986).  
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 That claimant failed to sustain the burden of proof by 
 
            a preponderance of the evidence that defendants delayed and 
 
            failed to commence permanent partial disability benefits 
 
            without reasonable or probable cause or excuse.  Iowa Code 
 
            section 86.13.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of one hundred eighty-eight and 61/100 dollars ($188.61) per 
 
            week in the total amount of nine thousand four hundred and 
 
            thirty and 05/100 dollars ($9,430.05) commencing on June 1, 
 
            1991.
 
            
 
                 That the previous award of the previous deputy of 
 
            healing period benefits for the period from January 4, 1990 
 
            through May 31, 1991 would consume the credit for the 
 
            twenty-one (21) and three-sevenths (3/7) weeks of workers' 
 
            compensation benefits paid to claimant prior to hearing and 
 
            cannot be used as a credit against this award.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the  transcript, are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Delbert C. Binford
 
            Attorney at Law
 
            1200 Hub Tower
 
            699 Walnut Street
 
            Des Moines, IA  50309
 
            
 
            Mr. Joseph M. Barron
 
            Mr. Paul C. Thune
 
            Attorneys at Law
 
            Des Moines Bldg., Suite 700
 
            405 Sixth Ave.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            P.O. Box 9130
 
            Des Moines, IA  50306-9130
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                    51401, 51402.40, 51803, 1802
 
                                    4000.2
 
                                    Filed December 30, 1993
 
                                    Walter R. McManus
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TIMOTHY ALLEN CORLEY,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 929739
 
            DEALERS WAREHOUSE COMPANY,    
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MANUFACTURERS   
 
            MUTUAL INSURANCE COMPANY,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            51401, 51402.40
 
            
 
                 The injury was found to be the cause of permanent 
 
            disability on the basis of the statement of two treating 
 
            physicians.  Their testimony was preferred over another 
 
            defendant's evaluator who simply said etiology unknown.
 
            
 
            51803
 
            
 
                 It was determined that claimant sustained a 10 percent 
 
            industrial disability.  Impairment rating was 5 percent.  
 
            Loss of actual earnings was 11 percent.
 
            
 
                 Claimant failed to cooperate with work hardening.  The 
 
            doctor then restricted him to light duty because in good 
 
            conscience he could not return him to his old job without 
 
            being rehabilitated for it.  It was determined that claimant 
 
            by his failure to make a good faith effort at 
 
            rehabilitation, and because his pain symptoms did not follow 
 
            normally accepted medical experience, made it impossible to 
 
            accurately judge how disabled he was actually.  Therefore, 
 
            it could not be determined that he was foreclosed from his 
 
            old employment and he could not receive increased industrial 
 
            disability for this factor.  Additionally, in his new job 
 
            claimant was performing medium and heavy work when he chose 
 
            to do so.
 
            
 
            1892
 
            
 
                 A running award for temporary disability benefits from 
 
            a prior hearing was terminated and permanent partial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits were determined to begin when claimant took a 
 
            full-time job in substantially similar employment 
 
            approximately a month after his first hearing.
 
            
 
            4000.2
 
            
 
                 No penalty benefits.  Both the primary treating 
 
            physician, and a defendant's evaluating physician, were very 
 
            critical of claimant's motivation to cooperate with medical 
 
            treatment.  It was determined that it was fairly debatable 
 
            whether claimant had sustained a permanent injury.  
 
            Furthermore, the only impairment rating came very late in 
 
            the course of events in this case.  Likewise, claimant had 
 
            been injured in two previous motor vehicle accidents that 
 
            involved litigation and defendants had legitimately 
 
            questioned their liability for permanency caused by this 
 
            injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1801
 
                      Filed July 15, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            TIMOTHY ALLEN CORLEY,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 929739
 
            DEALERS WAREHOUSE COMPANY,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER INSURANCE COMPANY,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant sustained his burden of proof that his injury arose 
 
            out of and in the course of his employment.
 
            Claimant was awarded temporary total disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MILDRED L. TUTTLE,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 929743
 
            UNISYS CORPORATION,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            RELIANCE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on March 11, 1991, at 
 
            Mason City, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits from the Second Injury Fund Of Iowa as a 
 
            result of an alleged cumulative injury of October 3, 1989.  
 
            The claimant settled with defendant employer orally 
 
            approximately 24 working hours earlier.  The record in the 
 
            proceeding consists of the testimony of claimant and Mary 
 
            Eason; joint exhibits 1 through 21, 24, 25 and 26 (all these 
 
            numbered exhibits initially were marked as claimant's ex
 
            hibits but the parties greed they should be joint); and 
 
            defendants' exhibits A, B and C.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's October 3, 1989 injury arose out 
 
            of and in the course of her employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to her October 3, 1989 injury;
 
            
 
                 3.  The extent of claimant's disability and entitlement 
 
            to disability benefits;
 
            
 
                 4.  Whether claimant incurred an 85A occupational 
 
            disease; and,
 
            
 
                 5.  Who is to pay the costs, particularly as to Dr. 
 
            Beck's $250 fee and whether it is reasonable and, also, Dr. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            DeBartolo's $100 bill.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 45-year-old high school graduate who 
 
            attended AIB for nine months after high school graduation.  
 
            Her course at AIB involved use of business machines, but not 
 
            computers.
 
            
 
                 Claimant described her work history prior to beginning 
 
            work with defendant corporation in August 1984.  These prior 
 
            jobs involved, but were not necessarily limited to, work as 
 
            a clerk, secretary and receptionist.  Claimant described her 
 
            jobs with defendant employer as repetitive work involving 
 
            putting lugs on cables and wires, prepping wire and then 
 
            working with computer chips, doing labeling, etc.
 
            
 
                 Claimant testified she lost no substantial amount of 
 
            work prior to October 3, 1989.  She said the pain in her 
 
            hands was so bad she could not do her job and took off work 
 
            on October 3, 1989.  She indicated she first noticed her 
 
            pain in September 1989 but didn't really notice it that much 
 
            until she could no longer work and her right upper 
 
            extremity, elbow and wrist became so bad she couldn't put 
 
            parts in the machine.  She said that on July 26, 1989, she 
 
            slipped at work and fell onto a cart striking the left side 
 
            of her back.  She was off work approximately one week from 
 
            this incident.
 
            
 
                 Claimant said she had no upper left extremity problems 
 
            prior to October 3, 1989, but did indicate she had 
 
            complaints on the left.  Claimant said it was the pain in 
 
            her right upper extremity for which she went to the doctor 
 
            who took her off work.  This doctor, Kenneth B. Washburn, 
 
            M.D., referred her to a hand specialist, Thomas DeBartolo, 
 
            M.D., who referred her to the University of Iowa Hospitals 
 
            and Clinics.  Claimant contends she told the doctor and the 
 
            University Hospitals and Clinics of her right and left arm 
 
            problems. She said the Iowa City doctor told her she was 
 
            only there for her right arm.
 
            
 
                 Claimant related she has had other medical problems due 
 
            to having polio as a five-year-old child.  This polio 
 
            affected her neck and the entire right side of her body.  
 
            She said she had no effects of polio on her left side.  
 
            Claimant later said the polio may have affected her left 
 
            upper extremity also.  Claimant's testimony was confusing in 
 
            this area.  Claimant is left handed.  Claimant related those 
 
            problems due to her polio on her right side.  She had to 
 
            have surgeries on her left lower extremity to let her right 
 
            side catch up.
 
            
 
                 Claimant indicated she went to a chiropractor when her 
 
            neck would pop out so he could put it in place again.  She 
 
            said she never had a work problem as to her neck.  She 
 
            related the polio affected her work as to sitting, standing 
 
            and using her arms.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was not called back to work in April 1990 or 
 
            released by Dr. DeBartolo and claimant contends she has not 
 
            been released to go back to work.  Dr. Washburn is the only 
 
            doctor who returned claimant to work April 5, 1990.
 
            
 
                 Claimant related her job search.  She filled out one 
 
            job application but did not get the job.
 
            
 
                 Claimant made application for social security benefits 
 
            in March 1990 before she made her job search.  In November 
 
            1990, social security determined her disabled under the 
 
            Social Security Law (Joint Exhibit 21).  She has made no job 
 
            searches since November 1990.  She contends her repetitive 
 
            work at defendant employer's caused her right upper 
 
            extremity pain and that prior to October 3, 1989, her polio 
 
            condition only caused her to get tired.  She emphasized that 
 
            the new problem she was having was hanging on to things.  
 
            Her hands would go to sleep on her.  Prior to the summer of 
 
            1989, she had no problem gripping items and her employer 
 
            never complained.
 
            
 
                 Claimant said she had neck surgery in November 1990.  
 
            She said this lessened pain on the right side but not the 
 
            left.  She indicated before her neck surgery, she never had 
 
            pain in her left upper extremity.
 
            
 
                 Claimant said she went to vocational rehabilitation to 
 
            see if she could go back to school.  She testified she was 
 
            told rehabilitation would not do anything if a person is on 
 
            SSI.  She was never evaluated nor did she follow up since 
 
            she was receiving social security benefits.  Claimant has no 
 
            intention of going to school.  She now gives the impression 
 
            she can do very little, including writing, vacuuming, doing 
 
            laundry, washing dishes, etc.  Claimant has no future 
 
            educational or employment plans and has not worked since 
 
            April 1, 1990.
 
            
 
                 Claimant related a July 26, 1989 injury that affected 
 
            her left hip, arm and neck.  At the hearing on March 11, 
 
            1991, the claimant without objection from the Second Injury 
 
            Fund asked the undersigned to dismiss file No. 925511, which 
 
            involved the July 26, 1989 injury.  The oral motion to 
 
            dismiss was sustained.
 
            
 
                 Claimant was extensively questioned as to her answers 
 
            to interrogatory Nos. 5 and 6 (Defendants' Exhibit A, pp. 
 
            3-5,6 and her deposition testimony) as to why there is no 
 
            mention of any permanent injury to her left upper extremity.  
 
            Claimant had no credible response.  Claimant again 
 
            emphasized she had polio as a child that affected her right 
 
            lower and upper extremities and affected her entire right 
 
            side, and that she has right side hemiporesis.  Claimant 
 
            seems to indicate that the effects of her polio caused her 
 
            to have problems sitting or standing and that her right leg 
 
            turns out.  When asked about Dr. Washburn's diagnosis on 
 
            March 28, 1990, referring to pain only in her right arm, she 
 
            said that is all he checked.  She contends she mentioned the 
 
            left arm but then said she only went to him for her right 
 
            arm and that was her main problem.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant acknowledged she saw her petition before her 
 
            attorney filed it and that nothing was mentioned regarding 
 
            her left side or left upper extremity.  Claimant disagreed 
 
            with Dr. DeBartolo's analysis of her medical problems when 
 
            he said she has functional overlay.
 
            
 
                 Claimant admitted that when she was released to return 
 
            to work in April 1990, she knew defendant employer had a 
 
            layoff policy and that there was no job at that time due to 
 
            the layoff.  She said she was ready to go back to work at 
 
            that time.
 
            
 
                 Claimant acknowledged that she has done sewing and has 
 
            made quilts and rugs that hang on the wall since her injury 
 
            but contends she has done very little.  She couldn't recall 
 
            how much or how little.  Claimant said she did not make rugs 
 
            after 1989 because she couldn't hang on to them.  Claimant 
 
            seems very uncomfortable with the questioning and her 
 
            answers in this respect.  She downplays this area of 
 
            questioning.  Then, when asked if she testified in her 
 
            deposition in September 1990 that the last time she made 
 
            something was in the summer of 1990, she changed her 
 
            testimony and said she does very little--5 to 10 minutes at 
 
            a time.  The undersigned noticed claimant blushing at this 
 
            time.  As this line of questioning continued, claimant 
 
            admitted that this type of sewing requires repetitive work 
 
            but claimant said her daughter finished the rugs.  
 
            Claimant's attention was called to the fact that she 
 
            mentioned nothing in her deposition about the daughter 
 
            helping or finishing the rugs.
 
            
 
                 On further cross-examination, claimant indicated she 
 
            experienced no noticeable neck problems until one month 
 
            after leaving her employment but that she went to vocational 
 
            rehabilitation before leaving defendant employer.  She then 
 
            indicated she had been demoted and incurred a decrease in 
 
            pay.  She contends her pain came before the demotion.  The 
 
            undersigned questions claimant's credibility.
 
            
 
                 Mary Eason, supervisor of health and medical services 
 
            for defendant employer, testified she talked to claimant 
 
            regarding claimant's employment.  She talked to claimant as 
 
            to her work injury and first report regarding claimant's low 
 
            back problems in July 1989, which resulted in claimant being 
 
            off work one week.  She said claimant later in the fall of 
 
            1990 came to her regarding pain in her right elbow and then 
 
            right hip and right upper extremity.  She emphasized 
 
            claimant said nothing about a left upper extremity problem 
 
            but later, on cross-examination, she was asked about her 
 
            notation on September 28, 1989 as to claimant's lower left 
 
            arm.  She retracted her earlier comment but then later upon 
 
            further questioning said she believed her report as to the 
 
            left was in error because Dr. Washburn, to whom she sent the 
 
            claimant, only checked the claimant's right upper extremity 
 
            and if there was a left upper extremity complaint, the 
 
            doctor would have examined it.
 
            
 
                 Two videos were introduced into evidence and were 
 
            shown.  Ms. Eason testified that they were accurate 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            depictions of claimant's job.
 
            
 
                 Claimant was recalled on rebuttal as to the videos 
 
            (Def. Exs. B and C).  She insisted they do not represent 
 
            what her job was like.
 
            
 
                 The notes of Kenneth B. Washburn, M.D., dated September 
 
            5, 1989 and ending June 15, 1990 (Jt. Ex. 3), basically 
 
            refer to claimant's right arm and cervical spine and polio 
 
            problem.  On April 5, 1990, he made a disability 
 
            determination report as follows:
 
            
 
                 [T]his lady has status post-polio with moderately 
 
                 severe to severe atrophy and weakness of muscle 
 
                 groups, as mentioned above.  She also has some 
 
                 residual tendinitis in the right upper extremity.  
 
                 This would result in 12 percent disability of the 
 
                 upper extremity due to mild decreased range of 
 
                 motion and changes from tendinitis.  She has some 
 
                 limitation of motion of the right hip secondary to 
 
                 chronic muscle imbalance and probably wear and 
 
                 tear in the low back/rt. hip area resulting in 12 
 
                 percent disability of the right hip.  This would 
 
                 result in 12 percent disability of the whole man 
 
                 due to lower extremity problems.  In addition, she 
 
                 has 2 percent disability of the whole man due to 
 
                 neck/cervical disc disease and 5 percent 
 
                 disability of the whole man due to limitation of 
 
                 motion of the back due to problems as mentioned 
 
                 above.
 
            
 
                    In addition, I feel she has 10 percent 
 
                 disability of the whole man due to her old polio 
 
                 with marked weakness in some of the aforementioned 
 
                 muscle groups.  This would result in 26 percent 
 
                 disability of the whole man due to the 
 
                 aforementioned problems.
 
            
 
            (Cl. Ex. 3, p. 5)
 
            
 
                 The doctor's history indicated claimant's polio 
 
            primarily affected her right side but somewhat affected her 
 
            left side also (Jt. Ex. 3, p. 4).
 
            
 
                 On June 15, 1990, Dr. Washburn's note emphasized his 
 
            disability termination report referred to above had little 
 
            to do with her disability at work and was not a 
 
            determination of her work-related disability, her total 
 
            disability (Jt. Ex. 3, p. 6).
 
            
 
                 The University of Iowa's January 24, 1990 report (Jt. 
 
            Ex. 6) indicates post-polio syndrome (muscles become weaker 
 
            faster with polio victims) cannot be excluded nor can 
 
            cervical root tension be excluded (Jt. Ex. 6, p. 2).  A 
 
            report dated February 5, 1990, indicates claimant's upper 
 
            right extremity weakness and tenderness is of unclear 
 
            etiology, but it also refers to claimant's moderate to 
 
            severe focal degenerative spondylolysis of the midcervical 
 
            spine from C3-4 down to C6-7 associated with mild kyphosis.  
 
            It found a normal right elbow.  There is no mention as to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            anything on the left side (Jt. Ex. 7).  In the December 7, 
 
            1989 notes of the Mason City Clinic by Dr. DeBartolo, 
 
            post-polio syndrome and functional overlay were mentioned 
 
            and he thought carpal tunnel was not involved (Jt. Ex. 10, 
 
            p. 2).  He suggested supportive psychotherapy.  The etiology 
 
            was again questioned but in the doctor's notes of March 13, 
 
            1990, which referred to the fact that the neurologic 
 
            evaluation of the University of Iowa had been complete, he 
 
            wrote:
 
            
 
                 I went through all this material with Mrs. Tuttle, 
 
                 lots of concern on her part because it would 
 
                 appear that this developmental and not work 
 
                 related, and I most certainly would agree with 
 
                 that, that I think these are problems that have 
 
                 been slowly increasing, and given the polio and 
 
                 the changes in her neck and affecting her 
 
                 peripheral nerve function, that these are just 
 
                 symptoms that have slowly increased and worsened 
 
                 to where she is no longer able to tolerate the 
 
                 repetitive tasks necessary for employment.
 
            
 
            (Jt. Ex. 10)
 
            
 
                 Dr. DeBartolo, an orthopedic surgeon, in his report of 
 
            February 2, 1990 (Jt. Ex. 13), leaves the undersigned to 
 
            conclude that claimant is disabled primarily because of 
 
            residue from her prior polio.  He was concerned with 
 
            post-polio syndrome and that a majority of her symptoms 
 
            relate back to claimant's suffering from polio as a child.  
 
            He indicated that the claimant's work activities caused her 
 
            to develop a sense of pain and discomfort in her already 
 
            weakened right upper extremity.  The undersigned saw nothing 
 
            in the medical report indicating claimant made rugs or 
 
            quilts or other sewing items.
 
            
 
                 The doctor additionally opined claimant's July 1989 
 
            fall had no effect whatsoever on her preexisting cervical 
 
            condition and has had no effect on the arm symptoms that she 
 
            is experiencing.  He felt claimant's problems are based 
 
            primarily on claimant having suffered polio as a child.
 
            
 
                 On April 23, 1990, Kenneth B. Washburn, M.D., wrote:
 
            
 
                 I certainly believe that this lady's primary 
 
                 problem is residual of old poliomyelitis and and 
 
                 [sic] this has affected her right side, including 
 
                 her right upper extremity.  I believe that she got 
 
                 and continues to have a mild chronic right tennis 
 
                 elbow as result of her having a weak arm....
 
            
 
                    ...I do not feel that her basic underlying 
 
                 problem, that is the polio, has been significantly 
 
                 affected by her work but the other way around - 
 
                 that her work has been affected by her previous 
 
                 existing problem, that is the polio.  I do believe 
 
                 that this lady would have had some problems in her 
 
                 right arm, such as the tennis elbow or painful 
 
                 muscles, whether or not she had worked.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (Jt. Ex. 14)
 
            
 
                 Claimant was sent to John R. Walker, M.D., by 
 
            claimant's attorney.  Dr. Walker issued a report on June 13, 
 
            1990, which is set out on Joint Exhibit 15.  A cervical 
 
            myelogram on September 12, 1990, indicated vertebral body 
 
            and cord/sac distortion from C3-5 possibly related to 
 
            childhood polio.  A radiological report on September 13, 
 
            1990 shows normal examination of claimant's left hip (Jt. 
 
            Ex. 16, p. 12).
 
            
 
                 Vincent C. Traynelis, M.D., from the University of 
 
            Iowa, issued an October 4, 1990 report (Jt. Ex. 17).  
 
            Basically, he found no causal connection or work injuries 
 
            that are causing claimant's problems.
 
            
 
                 It appears to the undersigned that claimant is 
 
            continuing to search for doctors hoping to find one or more 
 
            to counter the prior reports of doctors who have basically 
 
            related claimant's problems to her polio and nonwork causes.
 
            
 
                 On October 31, 1990, David W. Beck, M.D., a 
 
            neurologist, examined claimant obviously at the referral of 
 
            claimant's attorney to determine claimant's disability (Jt. 
 
            Ex. 18).  He finds some of claimant's problems not work 
 
            related and finds claimant has bilateral carpal tunnel 
 
            syndrome which he said is work related due to repetitious 
 
            work with her hands.  This appears to be the first time a 
 
            bilateral carpal tunnel situation has been mentioned.
 
            
 
                 On November 12, 1990, Dr. Traynelis wrote another 
 
            report (Jt. Ex. 19).  He said claimant was developing carpal 
 
            tunnel but claimant did not mention the symptoms in her 
 
            first contact with him.  He feels her symptoms are unlikely 
 
            to be related to her work activity.  He mentioned her 
 
            leisure-type hobbies, such as handicrafts could promote 
 
            carpal tunnel.  He said that any carpal tunnel claimant 
 
            might have has not caused any disability for claimant prior 
 
            to late August or early September 1990, at which point she 
 
            developed symptoms.
 
            
 
                 The battle herein involves the claimant and the Second 
 
            Injury Fund.  The employer disposed of its contest with the 
 
            claimant by a settlement shortly before this case came on 
 
            for hearing.
 
            
 
                 Claimant has had obvious physical problems since she 
 
            was five years old.  The overwhelming weight of medical 
 
            evidence shows claimant's right side has been substantially 
 
            affected by her polio and that any October 3, 1989 injury or 
 
            July 26, 1989 fall did not substantially or materially 
 
            lighten up or aggravate her preexisting polio, post-polio or 
 
            hemiparesis condition.
 
            
 
                 A greater weight of evidence shows claimant's polio and 
 
            its effect on claimant's right side went into claimant's 
 
            body as a whole.  Defendants contend that since there is 
 
            evidence that claimant's right side and upper right 
 
            extremity (polio) went into her body as a whole that this 
 
            automatically eliminates the Second Injury Fund from 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            liability because the first and second injuries must be 
 
            scheduled member permanent injuries before the Second Injury 
 
            Fund is involved.  As to this argument, the undersigned 
 
            finds that, even though the body as a whole injury (polio) 
 
            is involved, within that injury claimant lost some use of 
 
            her right upper extremity.  Therefore, on this argument of 
 
            the Second Injury Fund alone, claimant would prevail as 
 
            having a permanent loss of use of a right upper extremity 
 
            scheduled member.
 
            
 
                 Where is claimant's second injury?  Claimant's petition 
 
            indicates that claimant's second injury on October 3, 1989 
 
            was her right lower extremity.  Claimant's polio (first 
 
            injury) affected claimant's entire right side.  Iowa Code 
 
            section 85.64 provides that there must be a loss of use of 
 
            another such member.  Since both of claimant's upper and 
 
            lower right extremities were permanently injured due to 
 
            polio, it is only logical that there must be another loss of 
 
            use of a different scheduled member to be able to implicate 
 
            the Second Injury Fund in this litigation.  For the most 
 
            part, there is no mention of complaint or referral to a left 
 
            upper extremity injury until Dr. Walker was contacted by 
 
            claimant's attorney to do an evaluation of claimant's 
 
            condition in June 1990.  Claimant did not previously 
 
            complain of any left upper extremity problem, at least to 
 
            any extent.
 
            
 
                 Claimant contends that she mentioned her left upper 
 
            extremities problem to the doctors but it wasn't written 
 
            down.  The undersigned finds this as one of several areas of 
 
            claimant's testimony that he does not find credible.  
 
            Claimant had several surgeries on her left lower extremity 
 
            resulting from her polio problem on the right and the need 
 
            to operate on the left to help the deficiency caused by the 
 
            polio on claimant's right side.  The undersigned believes 
 
            claimant saw a deficiency in her case, particularly as to 
 
            the Second Injury Fund, and that is why late in the game 
 
            there is an introduction of left upper extremity complaints.  
 
            The medical records show, and claimant testified as such, 
 
            that polio also affected her left side but not as much.  
 
            Claimant also complained of cervical spine and back 
 
            problems.  The greater weight of medical testimony shows 
 
            that there is no proximate causal connection to claimant's 
 
            upper or lower left or right extremities or cervical 
 
            problems due to any October 3, 1989 cumulative or 
 
            progressive injury or any July 26, 1989 fall at work.
 
            
 
                 Claimant's medical histories are completely devoid of 
 
            any reference to claimant's hobby work, such as making rugs, 
 
            quilts and other types of sewing which would involve 
 
            repetitive hand and arm movement that could cause claimant's 
 
            current problem bilaterally or substantially aggravate her 
 
            post-polio condition.
 
            
 
                 In her testimony, claimant downplayed her role and 
 
            contends her daughter finished her sewing work.  The 
 
            undersigned does not believe claimant is credible in this 
 
            area either.  She obviously has nothing to do except 
 
            socialize with friends, etc., as she testified she cannot do 
 
            any work.  Only one doctor referred to claimant's handicraft 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            activities and hobbies around the home which could promote 
 
            carpal tunnel syndrome and that if she has developed this, 
 
            it was at a time after August 1, 1990 (Dr. Traynelis' report 
 
            of November 12, 1990, Jt. Ex. 19).  It appears this is the 
 
            only doctor who knew of her handicraft activities.
 
            
 
                 The undersigned accepts as more reliable the medical 
 
            report of those who have treated claimant over the entire or 
 
            greater period of time beginning at or as close to 
 
            claimant's alleged injury of October 3, 1988, as possible, 
 
            and also even going back to July 26, 1989.
 
            
 
                 It appears claimant's polio and post-polio condition 
 
            was affecting her work and not the reverse, as stated by Dr. 
 
            Washburn (Jt. Ex. 14).
 
            
 
                 It appears claimant was familiar with defendant 
 
            employer's layoff policy and this April 1990 layoff seems to 
 
            be the most convenient time to start her disability run and 
 
            conclude her inability to do any work.  She has no 
 
            motivation and her November 30, 1990 decision resulted from 
 
            her March 19, 1990 social security disability application.  
 
            This application and the ultimate decision obviously 
 
            affected the claimant's motivation and desire to try to 
 
            work.  Social security criteria are different than the 
 
            industrial disability criteria in several respects.
 
            
 
                 The undersigned made numerous notations at the time of 
 
            the hearing as to questions of claimant's credibility in her 
 
            answers and demeanor.  Claimant's answers to interrogatories 
 
            only refer to her right side and nothing as to the left 
 
            upper extremity.  The undersigned believes it is unnecessary 
 
            to go into any more detail nor anymore convincing in order 
 
            to substantiate the undersigned's finding that claimant has 
 
            not incurred an injury that arose out of and in the course 
 
            of claimant's employment which affected her right upper 
 
            extremity as plead nor to her left upper extremity as not 
 
            plead.  It appears claimant first introduced the left upper 
 
            extremity allegations in her filings when the claimant 
 
            attempted to place this in the prehearing report to which 
 
            defendant Second Injury Fund objected properly and timely.
 
            
 
                 The undersigned further finds claimant's complaints of 
 
            impairment or claimed disability is not causally connected 
 
            to an October 3, 1989 cumulative or progressive injury nor 
 
            to any July 26, 1989 fall.
 
            
 
                 Claimant has failed to carry her burden of proof on the 
 
            issues of arising out of and in the course of employment and 
 
            causal connection.
 
            
 
                 The above findings make all other issues moot.  Even if 
 
            the undersigned had found in favor of the claimant on all 
 
            the other issues, the undersigned would not have found that 
 
            claimant had an occupational disease.
 
            
 
                 Claimant takes nothing from these proceedings as 
 
            regards to the Second Injury Fund.
 
            
 
                                conclusions of law
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on October 3, 
 
            1989 which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 3, 
 
            1989 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Before the second injury fund is triggered three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, foot, leg or eye.  Second, 
 
            the employee must sustain another loss or loss of use of 
 
            another member or organ through a compensable injury.  
 
            Third, permanent disability must exist as to both the 
 
            initial injury and second injury.  See Allen v. The Second 
 
            Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, 
 
            Iowa Industrial Commissioner 15 (1980); Ross v. Service 
 
            Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa 
 
            Indus. Comm'r 273 (1979).
 
            
 
                 The fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 
 
            300 (Iowa 1970), Second Injury Fund v. John Deere Component 
 
            Works, Iowa Supreme Court Case No. 88-399, filed February 
 
            22, 1989.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant's alleged October 3, 1989 cumulative or 
 
            progressive injury did not arise out of and in the course of 
 
            her employment.
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Claimant's disability and any disability or impairment 
 
            from which she currently complains is not the result of nor 
 
            caused by any October 3, 1989 cumulative or progressive 
 
            injury.  Claimant failed to prove by the greater weight of 
 
            evidence that she incurred a work injury which has resulted 
 
            in the loss of or use of another such member other than the 
 
            one or ones in which claimant alleges was her first injury.
 
            
 
                 Claimant's polio and post-polio condition was the cause 
 
            of claimant's current impairments and any disability and 
 
            that it was claimant's post-polio condition that affected 
 
            claimant's work and not a situation in which claimant's work 
 
            materially, substantially, lighted up or aggravated 
 
            claimant's polio or any preexisting condition that claimant 
 
            had.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing in these proceedings from 
 
            the Second Injury Fund.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert S Kinsey
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            218 6th Ave Ste 300
 
            P O Box 9130
 
            Des Moines IA 50306
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed April 11, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MILDRED L. TUTTLE,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 929743
 
            UNISYS CORPORATION,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            RELIANCE INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant took nothing from Second Injury Fund.  Claimant had 
 
            polio as a child and greater weight of medical testimony 
 
            showed her problems are causally connected to her post-polio 
 
            condition.
 
            Claimant was not a credible witness.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MARY BOYCE,                   :
 
                                          :
 
                 Claimant,                :       File No. 929761
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            CITY OF DES MOINES,           :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Mary 
 
            Boyce against her former employer City of Des Moines, Iowa 
 
            and Second Injury Fund of Iowa based upon an admitted injury 
 
            of June 25, 1989.  The only issue to be determined is 
 
            claimant's entitlement to benefits from the Second Injury 
 
            Fund of Iowa.  The record in this proceeding consists of 
 
            testimony from Mary Boyce and Marsha Gracey.  The record 
 
            also contains joint exhibits 1 through 37 and Second Injury 
 
            Fund exhibits AA through JJ.
 
            
 
                 The case was heard at Des Moines, Iowa, on December 8, 
 
            1993.  At the commencement of the hearing, it was indicated 
 
            that there was a claim against the City of Des Moines, Iowa, 
 
            for an additional 3 percent permanent partial disability of 
 
            the claimant's right arm.  It was stipulated that the 3 
 
            percent was based upon an apportionment which was agreed by 
 
            the parties to be correct.  The only issue was the issue of 
 
            law regarding whether or not Bearce v. FMC Corporation, 465 
 
            N.W.2d 531 (Iowa 1991) requires that the claimant's 
 
            preexisting disability in her right hand be disabling from 
 
            an industrial disability standpoint in order to apportion 
 
            the preexisting disability.  The claim against the City of 
 
            Des Moines was dismissed by the undersigned on the basis 
 
            that the requirement of showing preexisting industrial 
 
            disability is pertinent only when the case involves a claim 
 
            for industrial disability.  In a case where the claim is for 
 
            scheduled disability, apportionment is performed based upon 
 
            preexisting scheduled disability.  Simpson v. Burlington 
 
            Basket Co., file number 921025 (App. Dec. March 19, 1993).  
 
            Accordingly, of the 21 percent permanent partial disability 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            affecting the claimant's right arm, 3 percent preexisted the 
 
            injury which is the subject of this litigation and 18 
 
            percent was caused by the injury which is the subject of 
 
            this litigation.  The liability of the City of Des Moines is 
 
            for an 18 percent disability of the arm and it has been 
 
            satisfied.
 
            
 
                 After ruling on the record, counsel for the City of Des 
 
            Moines left the hearing and the case proceeded to hearing 
 
            against the Second Injury Fund of Iowa.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Mary Boyce is a 55-year-old woman who is a 1956 high 
 
            school graduate, attended the American Institute of Business 
 
            in Des Moines and who took some college level courses in 
 
            1961 and 1962 while in the state of Texas.  
 
            
 
                 Mary commenced work for the City of Des Moines Police 
 
            Department in 1976.  She last worked in April 1990.  Her 
 
            actual date of termination was in 1992.  Prior to working 
 
            for the police department Mary had worked as a receptionist 
 
            and switchboard operator.  She performed typing, filing, 
 
            bookkeeping, secretarial and clerical duties.  She performed 
 
            bookkeeping and computer keyboarding.  Over her years with 
 
            the police department Mary held two positions.  For 
 
            approximately nine years she was a LENCIR control 
 
            typist/operator.  She received radio calls from officers and 
 
            ran computer checks on the criminal history of individuals 
 
            as requested by the officers.  In 1985 she became a police 
 
            information typist.  She prepared paper work for bonds, 
 
            stolen property and other paper work associated with 
 
            arrested people and property.  
 
            
 
                 Mary has a long history of arthritis affecting her 
 
            hands and wrists.  (exhibit 14; ex. AA, page 4).  The record 
 
            indicates that she has had a number of injuries from various 
 
            sources over the years.  Her arthritis was such that in 1987 
 
            she underwent a surgical procedure on her left hand and 
 
            wrist that was similar to the more recent procedure 
 
            performed on her right hand and wrist on November 14, 1989.  
 
            (exs. 5 & 23).  Mary has been found to be totally disabled 
 
            for purposes of social security disability.  (ex. CC).  She 
 
            had entered the Iowa Vocational Rehabilitation Program but 
 
            was unable to complete the evaluation.  (exs. 29-31).  
 
            
 
                 Claimant was evaluated by Peter Wirtz, M.D., on or 
 
            about November 3, 1993.  He found her to have a 19 percent 
 
            permanent partial impairment of each upper extremity.  Dr. 
 
            Wirtz went on to opine that the June 25, 1989 injury was a 
 
            strain that was only a temporary aggravation of her 
 
            preexisting degenerative condition.  He stated that the 
 
            aggravation would have resolved with conservative care and 
 
            that it was not the cause for the surgery which was 
 
            performed.  (ex. 20).  
 
            
 
                 Martin S. Rosenfeld, D.O., has rated claimant as having 
 
            an 18 percent impairment of her right upper extremity and a 
 
            22 percent impairment of the left upper extremity.  (ex. 
 
            22).  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Dr. Reagan rated her as having a 21 percent impairment 
 
            of her right hand.  (ex. 4, p. 35).  He stated that 18 
 
            percent of that impairment is related to the injury which is 
 
            the subject of this case.  (ex. 10).
 
            
 
                 Dr. Reagan also stated, "The underlying cause of Ms. 
 
            Boyce's problems is her arthritis but she may have gone on 
 
            forever without much problem had she not injured her wrist 
 
            at work."  His recommended activity restrictions are found 
 
            at exhibit 9.  They basically state that she should avoid 
 
            lifting more than five pounds with her hands.  He 
 
            recommended that she avoid repetitive duty.  He stated that 
 
            she may need to use splints and to work at her own pace.
 
            
 
                 Dr. Reagan is the primary treating physician in this 
 
            case.  It is found that his care was reasonable and that his 
 
            assessment of the case is likewise accurate and correct.  He 
 
            is strongly corroborated by Drs. Rosenfeld and Wirtz with 
 
            regard to the extent of impairment.  His opinion of 
 
            causation is found to be correct rather than that of Dr. 
 
            Wirtz.  It is noted that claimant had a considerable trial 
 
            of conservative care with Kirk Green, D.O., before her care 
 
            went to Dr. Reagan and that she had additional conservative 
 
            care from Dr. Reagan before surgery was performed.  
 
            Accordingly, Dr. Wirtz's assessment that the injury was only 
 
            a temporary aggravation which would have resolved with 
 
            conservative care is clearly incorrect and is rejected.  
 
            
 
                 Undoubtedly, Dr. Reagan is correct in that the 
 
            underlying cause of this claimant's problem is her 
 
            arthritis.  His statement found at exhibit 7, however, is 
 
            found to be correct.  One certainly might suspect that in 
 
            view of the care and surgery which had previously been 
 
            performed upon claimant's left hand and wrist that her right 
 
            hand and wrist might well have eventually required similar 
 
            care and surgery.  That is certainly possible, however, no 
 
            physician has stated that the care, surgery and impairment 
 
            that presently exist were not contributed to in a 
 
            significant degree by the June 25, 1989 injury.  It is 
 
            therefore found that the June 25, 1989 injury was an 
 
            aggravation of the preexisting arthritic condition.  It 
 
            produced an 18 percent permanent partial disability of 
 
            claimant's right upper extremity.  It is noted that the 
 
            operative report, exhibit 5, clearly shows that the surgery 
 
            was performed upon parts of claimant's arm.  The affected 
 
            part of her body is not just the hand or wrist.  
 
            
 
                 From the evidence it is well established that claimant 
 
            had a preexisting impairment in her left hand or arm prior 
 
            to the injury that occurred on June 25, 1989.  That 
 
            impairment was rated by Dr. Wirtz at 19 percent of the upper 
 
            extremity and by Dr. Rosenfeld at 22 percent of the upper 
 
            extremity.  It is found that Mary Boyce had a preexisting 20 
 
            percent permanent partial impairment of her left upper 
 
            extremity prior to June 25, 1989.  It is also found that the 
 
            impairment or disability is not limited to her hand but that 
 
            it extended into her arm as evidenced by the fact that the 
 
            surgical procedure which had been performed in 1987 involved 
 
            cubital tunnel release surgery at the elbow and surgery upon 
 

 
            
 
            Page   4
 
            
 
            
 
            the radius bone of the left arm.  The wrist joint was fused.  
 
            It is clear that the disability was not limited to the hand 
 
            and, in fact, extends into the arm.
 
            
 
                 The testimony from Marsha Gracey is accepted as being 
 
            correct.  It is essentially uncontroverted.  With the 
 
            restrictions recommended by Dr. Reagan claimant is 
 
            foreclosed from competitive employment.  No one has 
 
            suggested any particular job that she could obtain and 
 
            perform in order to be gainfully employed.  She has been 
 
            awarded social security benefits.  Claimant's condition is 
 
            clearly permanent as there is no expectation of recovery or 
 
            improvement.  
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 

 
            
 
            Page   6
 
            
 
            
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making the employer 
 
            responsible only for the amount of disability resulting from 
 
            an injury that would have occurred if the handicapped 
 
            individual had no preexisting disability.  See Anderson v. 
 
            Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and 
 
            Higgs, Iowa Workers' Compensation-Law and Practice, section 
 
            17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable separately to the first and second injuries.  
 
            Section 85.64.  Second Injury Fund of Iowa v. Braden, 459 
 
            N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 
 
            N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal 
 
            Co., 274 N.W.2d 300 (Iowa 1970).
 
            
 
                 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 
 
            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.
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 

 
            
 
            Page   7
 
            
 
            
 
            injury wholly disables the employee from performing work 
 
            that the employee's experience, training, education, 
 
            intelligence and physical capacities would otherwise permit 
 
            the employee to perform.  See McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 
 
            219 Iowa 587, 258 N.W. 899 (1935).  A finding that claimant 
 
            could perform some work despite claimant's physical and 
 
            educational limitations does not foreclose a finding of 
 
            permanent total disability.  See Chamberlin v. Ralston 
 
            Purina, File No. 661698 (App. October 29, 1987); Eastman v. 
 
            Westway Trading Corp., II Iowa Industrial Commissioner 
 
            Report 134 (App. 1982).  From the outset it is apparent that 
 
            Mary Boyce is totally disabled within the meaning of the 
 
            workers' compensation law.  [section 85.34(3)].  
 
            
 
                 Claimant is therefore entitled to recover weekly 
 
            compensation for permanent total disability pursuant to 
 
            section 85.34(3).  That compensation is payable at the end 
 
            of the time that payments were paid by the employer.  It was 
 
            stipulated by the parties that the commencement date for 
 
            permanent partial disability benefits is October 5, 1990.  
 
            That stipulated date is construed to be the time at which 
 
            the employer was to commence paying permanent partial 
 
            disability compensation.  Claimant's 18 percent permanent 
 
            partial disability of the right arm entitles her to 45 weeks 
 
            of benefits under the provisions of section 85.34(2)(m).  
 
            Accordingly, the employer's liability for payments ended on 
 
            August 15, 1991.  At that point it then becomes necessary to 
 
            deduct the compensable value of the previous loss, in this 
 
            case, the 20 percent impairment of the left arm.  Under 
 
            section 85.34(2)(m) that amounts to 50 weeks of benefits.  
 
            Since this case awards permanent total disability, the only 
 
            practical way to accomplish the deduction is to impose a 
 
            waiting period of 50 weeks before the Second Injury Fund is 
 
            required to commence payments.  Shank v. Mercy Hospital 
 
            Medical Center,  file number 719627 (App. Dec. August 28, 
 
            1989); Hickson v. W.A. Klinger Co., Inc. and Second Injury 
 
            Fund, I Iowa Industrial Commissioner Report 41 (1980); Asay 
 
            v. Industrial Engineering Equipment Co. and Second Injury 
 
            Fund, Thirty-third Biennial Report of the Industrial 
 
            Commissioner 224 (1977).  (There is an argument that where 
 
            permanent total disability results, the waiting period 
 
            should not be imposed since it leaves the individual without 
 
            benefits at the time when they are disabled from earning.)  
 
            2 Larson Workmen's Compensation Law, 59.34.
 
            
 
                 Fifty weeks from August 16, 1991, is July 30, 1992.  
 
            The Second Injury Fund of Iowa is therefore liable to 
 
            commence weekly compensation at the rate of $225.83 per week 
 
            effective July 30, 1992.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that the Second Injury Fund of 
 
            Iowa pay Mary Boyce weekly compensation at the rate of two 
 
            hundred twenty-five and 83/100 dollars ($225.83) per week 
 
            payable commencing July 31, 1992.  The past due accrued 
 
            amount thereof shall be paid to claimant in a lump sum.  The 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Second Injury Fund of Iowa shall continue to pay Mary Boyce 
 
            weekly compensation for permanent total disability pursuant 
 
            to Iowa Code section 85.34(3) for so long as she remains 
 
            totally disabled.
 
            
 
                 Signed and filed this __________ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Bruce E. Bergman
 
            Ms. Mary Hellweg
 
            Attorneys at Law
 
            400 E 1st St
 
            Des Moines, Iowa  50309-1891
 
            
 
            Mr. James Christenson
 
            Mr. Greg Knoploh
 
            Assistant Attorneys General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                               2206 1804 3202
 
                                               Filed February 28, 1994
 
                                               Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MARY BOYCE,    
 
                      
 
                 Claimant,                         File No. 929761
 
                      
 
            vs.                                A R B I T R A T I O N
 
                            
 
            CITY OF DES MOINES,                     D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            2206 1804 3202
 
            
 
            Claim against Second Injury Fund.  Claimant awarded 
 
            permanent total disability.  The injury was an aggravation 
 
            of a preexisting arthritic condition affecting both of 
 
            claimant's arms.  
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH J. BERG,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 929782
 
            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 Kenneth 
 
            J. Berg, claimant, against United Parcel Service, employer, 
 
            hereinafter referred to as UPS, and Liberty Mutual Insurance 
 
            Company, insurance carrier, defendants, for workers' compen
 
            sation benefits as a result of an alleged injury on Septem
 
            ber 22, 1989.  On October 6, 1992, 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 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 that an employee-employer relationship existed 
 
            between claimant and defendant-employer at the time of the 
 
            alleged injury.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits; and,
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant, age 37, worked for UPS from July 1986 until 
 
            the date of the alleged injury herein.  At UPS, claimant was 
 
            a fleet mechanic in the maintenance and repair of approxi
 
            mately 30 vehicles.  Claimant testified that he routinely 
 
            lifted heavy objects at work at times over 100 pounds.  
 
            
 
                 Claimant testified that he injured his low back while 
 
            moving a portable dock on September 22, 1989.  He said he 
 
            felt terrific pain and was compelled to end work and go 
 
            home.  He said that he had similar pain the week before at 
 
            work after falling on a wheel well but that the pain on the 
 
            22nd was much worse.  Claimant was subsequently treated by 
 
            Thomas Gartin, M.D., and was later referred to a neurosur
 
            geon, Thomas Carlstrom, M.D.  Dr. Carlstrom diagnosed a her
 
            niated disc and imposed work restrictions against heavy and 
 
            repetitive lifting or any heavy physical labor.  Claimant 
 
            was subsequently treated by an orthopedic surgeon, William 
 
            Boulden, M.D., and Thomas Bower, LPT.  Claimant is unable to 
 
            return to UPS due to work activity restrictions against 
 
            heavy work imposed by these physicians.  
 
            
 
                 Initially, Dr. Carlstrom related claimant's low back 
 
            problems to the work incident on September 22, 1989.  Dr. 
 
            Boulden likewise related the problems he treated to the 
 
            claimed work injury.  In a subsequent medical examination, 
 
            Martin Rosenfeld, D.O., another orthopedic surgeon, causally 
 
            related claimant's low back condition to his work.  However, 
 
            neither Dr. Carlstrom, Dr. Boulden nor Dr. Rosenfeld was 
 
            told by claimant about a history of chiropractic care to the 
 
            low back for three years prior to September 22, 1989.  The 
 
            records of Richard Elbert, D.C., indicate that claimant had 
 
            complained of low back, hip and leg pain and numbness prob
 
            lems since July 1987.   Only a few days before the claimed 
 
            injury, claimant received chiropractic care for back spasms.  
 
            At that time he related complaints of hip and leg pain 
 
            beginning with an injury on a ladder at home in July 1989.  
 
            The only mention of a work injury to Dr. Elbert by claimant 
 
            was in January 1990 when he told Dr. Elbert of falling on 
 
            the wheel well at work on the 18th of September, 1989.  Dr. 
 
            Elbert stated that he recalled this report of injury, which 
 
            he admits is inconsistent with his written reports.  Dr. 
 
            Elbert also reports a complaint of injury at work in 
 
            September 1989 while lifting a tire at work.  
 
            
 
                 Given the testimony of Dr. Elbert in his deposition, 
 
            Drs. Carlstrom and Rosenfeld retreated from their causal 
 
            connection opinions.  Dr. Carlstrom opines that the hernia
 
            tion he found occurred prior to September 22, 1989.  Dr. 
 
            Rosenfeld agrees with Dr. Carlstrom but testified at hearing 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            that the event on the 22nd was a significant contributing 
 
            factor in the herniation process or in other words the 
 
            "straw that broke the camel's back."  Dr. Carlstrom said 
 
            that whether or not the 22nd event accelerated or lighted up 
 
            claimant's herniation depends upon claimant's credibility 
 
            and the significance of symptoms he suffered at the time in 
 
            question.
 
            
 
                 A work injury on September 22, 1989 as alleged could 
 
            not be found by the undersigned deputy commissioner.  
 
            Claimant's testimony is not credible.  He testified at hear
 
            ing that he had no significant low back problems prior to 
 
            September 22, 1989 despite clear evidence from Dr. Elbert of 
 
            numerous complaints of low back stiffness and pain between 
 
            July 1987 and September 22, 1989.  If the work events on the 
 
            18th or 22nd were so significant why did claimant fail to 
 
            report them to Dr. Elbert.  Dr. Elbert's unusual recollec
 
            tion of a report of injury on September 18, 1989 is not 
 
            credible and in any event there was never a report of injury 
 
            for September 22, 1989.  Claimant certainly felt compelled 
 
            on September 1, 1989 to report a injury at home earlier that 
 
            summer.  Also, there is no satisfactory explanation why Dr. 
 
            Carlstrom, Dr. Boulden and Dr. Rosenfeld were not given a 
 
            complete history of chiropractic care before September 22, 
 
            1989.
 
            
 
                 As the undersigned is not convinced that anything 
 
            happen on September 22, 1989, the theories advanced by 
 
            claimant involving a claim of cumulative trauma with other 
 
            prior work injuries and/or aggravation of a prior condition 
 
            is no help to claimant.  No physician in this case supports 
 
            such a cumulative trauma theory.  Even if the event happen 
 
            as alleged on September 22, 1989, it is clearly a separate 
 
            and distinct injury from the prior alleged injuries on 
 
            September 18, 1989 and in September 1989.
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            CONCLUSIONS OF LAW
 
            
 
                 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 Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W. 2d 591 (1961), and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  
 
            
 
                 In the case sub judice, claimant simply failed to show 
 
            by credible evidence that he indeed suffered a work injury 
 
            at the time in question.  Claimant's story was too conflict
 
            ing and there was serious concern about claimant's failure 
 
            to give a complete history to his treating physicians.  
 
            
 
                                      ORDER
 
            
 
                 1.  Claimant's petition is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 23, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH J. BERG,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 929782
 
            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.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KENNETH J. BERG,              :
 
                                          :       File No. 929782
 
                 Claimant,                :
 
                                          :      R U L I N G   O N
 
            vs.                           :
 
                                          :      R E H E A R I N G
 
            UNITED PARCEL SERVICE,        :
 
                                          :      A N D   O R D E R
 
                 Employer,                :
 
                                          :       N U N C   P R O
 
            and                           :
 
                                          :           T U N C
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 Claimant brings to the attention of the undersigned a 
 
            typographical error.
 
            
 
                 Therefore, paragraph 2 of the Order portion of the 
 
            decision is amended by inserting a period after the 
 
            administrative rule citation of rule 343 IAC 4.33 and 
 
            striking the entire clause beginning with the word 
 
            "including."
 
            
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
                  
 
SHELLY R. FLANDERS,  
 
         
 
     Claimant,                            File No. 929926
 
         
 
vs.                                   A R B I T R A T I O N
 
         
 
IBP, INC.,                                D E C I S I O N
 
         
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
         
 
         
 
                  STATEMENT OF THE CASE
 
         
 
Shelly Flanders, widow of William Flanders, has filed a 
 
petition in arbitration seeking death benefits, dependency 
 
benefits and equitable apportionment benefits as a result of 
 
William Flanders' work-related death on September 25, 1989 
 
while he was employed by self-insured defendant IBP, Inc.  
 
         
 
The hearing was held before the undersigned on March 30, 
 
1995 at Storm Lake, Iowa.  The evidence in this case 
 
consists of the testimony of Shelly L. Flanders; claimant's 
 
exhibits 1 through 6, 8 through 11, 13 through 15, 17, 18, 
 
20, 23, 24 and defendant's exhibits A through E.  The case 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
was considered fully submitted at the close of the hearing.  
 
         
 
Claimant and defendant each filed a post-hearing brief on 
 
June 19, 1995.
 
         
 
                  ISSUES
 
         
 
The parties presented the following issues for 
 
resolution:
 
         
 
1.  Whether Shelly Flanders is a conclusively presumed 
 
dependent and entitled to equitable apportionment of weekly 
 
compensation benefits payable due to the death of William 
 
Flanders;
 
         
 
2.  Whether Shelly Flanders is entitled to the marital 
 
exemption in computing the weekly workers compensation 
 
benefit rate; and,
 
         
 
3.  Whether Shelly Flanders' action is barred by the 
 
statute of limitations;
 
         
 
                  FINDINGS OF FACT
 
         
 
The undersigned having reviewed and considered all of 
 
the evidence makes the following findings of fact:
 
         
 
William R. Flanders was electrocuted in an accident 
 
arising out of and in the course of his employment with IBP, 
 
Inc. on September 25, 1989.  At the time of his death 
 
William was still legally married to Shelly.  No dissolution 
 
decree or order of annulment had been entered to dissolve 
 
their marriage.  Shelly Flanders has not remarried since 
 
William's death.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Shelly L. Flanders was born on May 10, 1965.  She met 
 
William when she was 14 years old and William was 16 in 
 
1979.  In 1981 Shelly became pregnant with the first of 
 
their children and gave birth to Brandy Lee Flanders on 
 
August 14, 1981.  At the time of Brandy's birth Shelly was 
 
16 years old and she and William sought to get married but 
 
were unable to because Shelly's parents would not consent to 
 
the marriage.  Shelly and William began living together in 
 
October of 1981, even though her parents would not consent 
 
to them getting married.  On November 22, 1982, Shelly gave 
 
birth to William Joseph Flanders, hers and William's second 
 
child, when she was 17 years old.  Her parents still would 
 
not consent to her and William getting married, but they 
 
continued to live together.  Shortly after Shelly turned 18 
 
she and William were married at the Salvation Army in 
 
Woodbury County on October 8, 1983. (Claimant's exhibit 15)
 
         
 
In 1984 William voluntarily checked himself into the 
 
Gordon Chemical Dependency Center seeking treatment for 
 
alcohol abuse. (Defendant's exhibit A, page 20) His 
 
treatment lasted 30 days and when he was discharged he began 
 
odd jobs in an attempt to support himself and his family.  
 
         
 
In 1984 William was charged with drunk driving and his 
 
drivers license was suspended for 30 days.  (Def. Ex. A, p. 
 
38, 39)
 
         
 
In 1985 William again voluntarily checked himself into 
 
the Gordon Chemical Dependency Center seeking treatment for 
 
alcohol abuse.  (Def. Ex. A, p. 34)
 
         
 
In March of 1985 Shelly sought a protection order from 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
William alleging that William physically abused her. (Jt. 
 
Ex. 17)  The protective order was granted in March of 1985 
 
and Shelly and William lived apart for one or two months 
 
until Shelly moved back in with William in April or May of 
 
1985. (Cl. Ex. 18)  After she moved back in Shelly contends 
 
things went smoothly until William started drinking again.  
 
         
 
In August of 1985 William was involuntarily committed 
 
by his parents to the Marion Health Center for treatment of 
 
alcohol dependency. (Cl. Ex. 23)
 
         
 
During the entire course of the marriage William 
 
continued to abuse alcohol and was physically abusive to 
 
Shelly.  Shelly related that William would beat her and kick 
 
her as well as verbally abuse and threaten her.  
 
(Transcript, page 30)  The physical abuse occurred on a 
 
daily basis.  (Tr. p. 33)  A form of William's emotional 
 
abuse included keeping Shelly in the house away from friends 
 
and family.  She was not allowed to go to the grocery store 
 
without him along. (Tr. p. 33)  William was a chronic 
 
alcoholic who repeatedly and regularly physically abused 
 
Shelly. 
 
         
 
William and Shelly continued to live together with 
 
their children until October of 1986.  In 1986 Shelly left 
 
William after he went joy-riding with their three year old 
 
son along in the vehicle while he was drinking alcohol.  At 
 
that time William was also giving alcohol to his three year 
 
old son to drink.  The two were involved in a car accident, 
 
but neither William nor his son were hurt.  That incident 
 
was the straw that broke the camel's back for Shelly and she 
 
left William. (Tr. p. 32)  In order to escape from William, 
 
Shelly had to wait until he left the house to go to his 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
mother's, then she took the children and left. (Tr. p. 33)
 
         
 
William remained in contact with Shelly and continued 
 
to visit the children.  Shelly and William talked several 
 
times about reconciling.  Shelly never went back to him 
 
because he never quit drinking.  (Tr. p. 36)
 
         
 
On June 8, 1988, William filed a petition for 
 
dissolution of his and Shelly's marriage. (Cl. Ex. 20)  
 
Shelly does not consider her separation from William in any 
 
way her fault.  (Tr. p. 38)
 
         
 
Apparently, William was convicted of operating a motor 
 
vehicle while intoxicated in 1988.  (Def. Ex. A, p. 56)
 
         
 
During her deposition, Shelly related that when she and 
 
William were living together William would drink and become 
 
violent on a weekly basis.  After she left him in 1986, 
 
Shelly never experienced another violent episode with 
 
William.  (Def. Ex. A, p. 57, 58)
 
         
 
On July 8, 1989, William had a son, Tyler Robert 
 
Flanders, with a woman named Shawna Nissan.  Shawna and 
 
William were never married.
 
         
 
William's gross earnings were $300.30 dollars per week.  
 
Pursuant to the proper rate book, with four exemptions, 
 
William's correct weekly workers' compensation benefit rate 
 
is $199.97 if he was unmarried at the time of his death and 
 
$204.54 if he was married at the time of his death.  
 
         
 
After William's death, payments in the amount of one-
 
third of $199.97 to each child were commenced and continue 
 
         
 

 
         
 
 
 
 
 
 
 
to the date of the hearing.  (Cl. Ex. 11, p. 1-14)  By order 
 
of the district court dated December 13, 1989, Shelly 
 
Flanders was made the legal guardian of Brandy Lee Flanders 
 
and William Joseph Flanders.  (Cl. Ex. 10, p. 1)
 
         
 
Shelly Flanders has waived her right to any back 
 
payment she may be owed for her share of the workers' 
 
compensation weekly benefits from the date of William's 
 
death to date of this decision.  (Cl. Ex. 13)
 
         
 
                  ANALYSIS AND CONCLUSIONS OF LAW
 
         
 
The party who would suffer loss if an issue were not 
 
established has the burden of proving that issue by a 
 
preponderance of the evidence.  Iowa R. App. P. 14(f).
 
         
 
The first issue that must be determined is whether 
 
Shelly Flanders is conclusively presumed dependent and thus 
 
entitled to equitable apportionment of weekly compensation 
 
benefits payable due to William R. Flanders' death.
 
         
 
Iowa Code section 85.31 provides in relevant part:
 
         
 
1.  When death results from the injury, the 
 
employer shall pay the dependents who were wholly 
 
dependent on the earnings of the employee for 
 
support at the time of the injury, during their 
 
lifetime, compensation upon the basis of eighty 
 
percent per week of the employee's average weekly 
 
spendable earnings, commencing from the date of 
 
death as follows:
 
         
 
a.  To the surviving spouse for life or until 
 
         
 

 
         
 
 
 
 
 
 
 
remarriage . . . .
 
         
 
Defendant asserts that Shelly must qualify for 
 
compensation benefits under Iowa Code section 85.31 and must 
 
show that she was actually "wholly dependent on the earnings 
 
of [William] for support at the time of the injury . . ."  
 
         
 
Defendants misinterpret the purpose of section 85.31.  
 
Section 85.31 does not set up the test for determining who a 
 
dependent is, it merely provides for the amount and duration 
 
of payments to dependents as they are defined in sections 
 
85.42 and 85.44.  
 
         
 
Two sections of Chapter 85 define dependents for the 
 
purposes of equitable apportionment of compensation 
 
benefits; sections 85.42 and 85.44.  Section 85.42 defines 
 
when a spouse shall be conclusively presumed to be "wholly 
 
dependent."
 
         
 
Iowa Code section 85.42 (1995) provides in relevant 
 
part:
 
         
 
The following shall be conclusively presumed to be wholly 
 
dependent upon the deceased employee:
 
         
 
a.  When it is shown that at the time of the injury the 
 
surviving spouse had willfully deserted deceased without 
 
fault of the deceased, then such survivor shall not be 
 
considered as dependent in any degree. (Emphasis added.)
 
         
 
b.  When the surviving spouse was not married to the 
 
deceased at the time of the injury.
 
         
 
Iowa Code section 85.42 means that a surviving spouse, 
 
in this case, Shelly, need not show actual dependence to 
 
qualify for an equitable portion of the compensation 
 
payments unless she falls within one of the two exceptions.  
 
         
 

 
         
 
 
 
 
 
 
 
 
 
The question then is: Does Shelly fall within one of the two 
 
exceptions disqualifying her from being conclusively 
 
presumed dependent on William and thus entitled to a share 
 
of the compensation benefits.  
 
         
 
It is clear that Shelly and William were legally 
 
married, no order of dissolution of the marriage had been 
 
entered by any court at the time of William's death nor had 
 
any court entered an order annulling their marriage.  Shelly 
 
is not disqualified under subsection b.  Shelly and William 
 
were legally married at the time of William's death.
 
         
 
The question then becomes whether Shelly is 
 
disqualified by 85.42(a) because she willfully deserted 
 
William without fault on William's part.  The facts 
 
establish that Shelly left William because he was an 
 
alcoholic who became violent and physically abusive to her 
 
when he drank and, on at least one occasion, endangered the 
 
life of his child by drinking and driving while his son was 
 
in the car with him.  For whatever reason, William was 
 
unable to quit drinking and never ceased physically abusing 
 
         
 
Shelly during the entire course of their marriage until she 
 
left him.  The facts clearly establish that Shelly left 
 
William, in at least some part, due to the alcohol abuse and 
 
physical abuse William constantly perpetuated.  William's 
 
alcohol abuse and physical abuse of Shelly amounts to fault 
 
on his part for Shelly's leaving him, or if you will, her 
 
desertion of him.  Since William's conduct amounted to fault 
 
on his own part, Shelly is not disqualified from receiving 
 
compensation benefits by 85.42(a).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                    
 
Iowa Code section 85.43 (1995) provides in relevant 
 
part:
 
         
 
If the deceased employee leaves a surviving 
 
spouse qualified under the provisions of section 
 
85.42, the full compensation shall be paid to the 
 
surviving spouse, as provided in section 85.31; 
 
provided that where a deceased employee leave a 
 
surviving spouse and a dependent child or children 
 
the industrial commissioner may make an order of 
 
record for an equitable apportionment of the 
 
compensation payments.  
 
         
 
William is survived by three minor children and a 
 
spouse.  The weekly compensation benefits have, to this 
 
point, been divided between the three children with each 
 
child taking a one-third share of the weekly benefits.  
 
         
 
Shelly has waived her right to recover any past amounts that 
 
were due to her.  Her rights to any amount of weekly 
 
benefits begin from the date of this order.  It appears to 
 
the undersigned that the fairest way to divide the benefits 
 
among the survivors of William is to apportion to each 
 
individual an equal share.  Thus, Shelly Flanders, Brandy 
 
Flanders, William Joseph Flanders and Tyler Flanders are 
 
each entitled to 25 percent or one-quarter share of the 
 
weekly compensation benefits of William Robert Flanders.
 
         
 
The next issue that must be determined is whether 
 
Shelly Flanders is entitled to the marital exemption in 
 
computing the weekly workers' compensation rate.
 
         
 
It was stipulated by the parties that claimant's 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
average gross weekly earnings were $300.30.  It has already 
 
been determined that at the time of his death William was 
 
married to Shelly Flanders.  Shelly Flanders is entitled to 
 
the marital exemption in calculating the weekly workers' 
 
compensation benefit rate.  The 1989 rate book provides that 
 
for an employee with four exemptions who is married, the 
 
proper weekly rate of compensation benefits is $204.54.  The 
 
survivors of William R. Flanders are each entitled to 
 
$51.135 dollars per week.  
 
         
 
It is noted that up to this time defendant has paid the 
 
three minor children at the rate of $199.97 per week.  
 
Defendant should have been paying the minors at the rate of 
 
$204.54 dollars per week.  Defendants are ordered to pay the 
 
three minor children back pay they have been shorted because 
 
of defendant's payment of the incorrect rate.  This has no 
 
effect on Shelly Flanders waiver of back pay because the 
 
back pay is due to the minor children, not to her.  
 
         
 
The final issue to be determined is whether Shelly's 
 
action is barred by the statute of limitations.
 
         
 
Defendant has previously filed a motion for summary 
 
judgment alleging that Shelly's claim for a share of the 
 
weekly benefits is barred by the statute of limitations, 
 
Iowa Code section 85.26(1).  That motion was denied by 
 
another deputy industrial commissioner.  Claimant here 
 
contends that the undersigned does not have the authority to 
 
rule on an issue that has previously been ruled on in a 
 
motion for summary judgment.  Claimant contends that the 
 
ruling on the motion for summary judgment has become what 
 
counsel termed the "law of the case," and cannot be 
 
revisited.  Claimant's contentions are erroneous.  Issues 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
raised in motions for summary judgment may also be raised 
 
before the finder of fact at an arbitration hearing.  
 
Different standards of proof are applied at each 
 
juncture and evidence that may be insufficient to prevail on 
 
a motion for summary judgment may be sufficient for a party 
 
to prevail in an arbitration hearing.
 
         
 
Iowa Code section 85.26(1) (1995) provides in relevant 
 
part:
 
         
 
1.  An original proceeding for benefits under this
 
chapter . . . shall not be maintained in any 
 
contested case unless the proceeding is commenced 
 
within two years from the date of the occurrence 
 
of the injury for which benefits are claimed or, 
 
if weekly compensation benefits are paid under 
 
section 86.13, within three years from the date of 
 
the last payment of weekly compensation benefits.
 
         
 
Defendant contends that Shelly cannot rely on the three 
 
year statute because benefits have not been paid to her and 
 
because the three year statute of limitations references 
 
86.13 is thus applicable only to the actual worker or 
 
employee.  A review of the definitions of the terms used in 
 
the statute makes clear that defendant's contentions are 
 
without merit.
 
         
 
Iowa Code section 86.13 provides that if an employer 
 
pays weekly compensation benefits to an employee, the 
 
employer shall file with the industrial commissioner a 
 
notice of the commencement of the payments.  Failure to file 
 
the notice of commencement of benefits toll the running of 
 
the statute of limitation in section 85.26.  
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                    
 
Employees are broadly defined in Iowa Code section 
 
85.61(12) to include "[a]ny reference to a worker or 
 
employee who has been injured shall, when such worker or 
 
employee is dead, include the worker's or employee's 
 
dependents as herein defined or the worker's or employee's 
 
legal representatives; and where the worker or employee is a 
 
minor . . . it shall include the minor's . . . guardian, 
 
next friend, or trustee."  Not only has it been determined 
 
that Shelly Flanders is the dependent of William Flanders, 
 
she is also the guardian of Brandy Flanders and William 
 
Joseph Flanders and as such is included in the definition of 
 
"employee" as it is used in section 86.13.  Weekly benefits 
 
have been paid and are still being paid pursuant to section 
 
86.13.  Since Shelly qualifies as an employee under section 
 
86.13 and hence under section 85.26, defendant cannot argue 
 
that her claim is barred because they have refused to pay 
 
surviving spouse benefits.  Since defendant continues to pay 
 
benefits pursuant to Iowa Code section 86.13, the three year 
 
time period has not yet begun to run.  
 
         
 
It is further noted that workers' compensation laws are 
 
to be, within reason, liberally construed.  Barton vs. 
 
Nevada Poultry Co. , 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
To interpret the statute as defendants invite would 
 
constitute and impermissibly illiberal construction.  
 
         
 
Thus, it is determined that Shelly Flanders claim is 
 
not barred by the statute of limitations.
 
         
 
                  ORDER
 
         
 
THEREFORE, it is ordered:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                    
 
That defendant pay weekly compensation benefits in the 
 
amount of one-quarter (25%) of two hundred four and 54/100 
 
dollars ($204.54) to each of the following persons until 
 
the conditions of Iowa Code section 85.31(1)(b) are met 
 
in the case of Brandy Flanders, William Joseph Flanders 
 
and Tyler Robert Flanders, and until the 
 
conditions of section 85.31(1)(a) are met in the case of 
 
Shelly L. Flanders. 
 
         
 
That defendant pay accrued weekly compensation benefits 
 
to Brandy Flanders, William Joseph Flanders and Tyler Robert 
 
Flanders due to their previous payments at the wrong rate as 
 
set out in the body of the decision.
 
         
 
That defendant pay interest on the award as set out in 
 
Iowa Code section 85.30.
 
         
 
That defendant pay the costs of this action pursuant to 
 
343 IAC 4.33.
 
         
 
That defendant pay accrued benefits in a lump sum.
 
         
 
That defendant be given credit for benefits previously 
 
paid.
 
         
 
That defendant file claim activity reports as requested 
 
by the agency.  
 
         
 
Signed and filed this ____ day of June, 1995.
 
         
 
                  
 
         
 
                  
 
         
 
                  
 
         
 

 
         
 
 
 
 
 
         
 
                        
 
         
 
                             ________________________________
 
                             TERESA K. HILLARY
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
Copies To:
 
         
 
Mr Dennis McElwain
 
Attorney at Law
 
732-640 Badgerow Bldg
 
P O Box 1194
 
Sioux City IA 51102
 
         
 
Mr Paul T Kirchner
 
Attorney at Law
 
P O Box 515  Dept 41
 
Dakota City NE 68731
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                     1203, 1900, 2400, 3002
 
                                     Filed June 28, 1995
 
                                     Teresa K. Hillary
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
                  
 
SHELLY R. FLANDERS,  
 
         
 
     Claimant,                             File No. 929926
 
         
 
vs.                                    A R B I T R A T I O N
 
         
 
IBP, INC.,                                D E C I S I O N
 
         
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
         
 
         
 
1203, 1900, 2400, 3002
 
Claimant, Shelly Flanders, determined to be the surviving 
 
spouse of decedent William R. Flanders, notwithstanding the 
 
fact that divorce proceedings were under way and she had 
 
deserted the decedent three years prior to his untimely 
 
death by electrocution while working for IBP, inc.  Her 
 
desertion was held to be due to the "fault of the deceased" 
 
pursuant to 85.42.  Deceased was a chronic alcoholic who 
 
regularly and repeatedly physically abused claimant and 
 
endangered the life of their children by driving while 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
intoxicated.  Deceased had on one occasion given beer to his 
 
three year old son to drink then taken the child and gone 
 
joy-riding ending up in a car accident.  
 
         
 
Claimant and decedent held to have been legally married at 
 
the time of his death because no order of dissolution or 
 
annulment had been entered by any court.  Claimant entitled 
 
to the marital exemption in calculating the weekly workers' 
 
compensation benefits rate.
 
         
 
Defendant's statute of limitation argument was without merit 
 
in light of the broad definition of employee found at 
 
85.61(12).  Claimant awarded 25 percent share of the 
 
benefits and 25 percent to each of the three minor children.
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHARLES L. HASKELL,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  929978
 
            LENNOX INDUSTRIES,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Haskell as a result of mental injuries which occurred on 
 
            September 8, 1989.  Defendants denied compensability for the 
 
            injury and paid no benefits.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on June 3, 1991.  The record in the proceeding 
 
            consists of joint exhibits 1 through 7 and testimony from 
 
            claimant.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 1.  Arising out of and in the course of employment;
 
            
 
                 2.  Casual connection to temporary total disability; 
 
            and
 
            
 
                 3.  Entitlement to Iowa Code section 85.27 benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Charles Haskell, started working for 
 
            defendant, Lennox Industries, on July 20, 1970, and has been 
 
            so employed to date of hearing.
 
            
 
                 Claimant has brought a claim against defendants 
 
            alleging that the stress he experienced during labor 
 
            negotiations in 1989 caused a temporary mental disorder that 
 
            resulted in lost time and medical expenses.
 
            
 
                 Claimant testified that he is a member of the union 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            which represents employees of the employer's Marshalltown 
 
            production facility.  Claimant, in 1989, worked as a 
 
            production worker.  In 1989, claimant was neither a union 
 
            steward nor a labor contract negotiator.
 
            
 
                 Claimant testified that his employer and the union have 
 
            a long history of bitter labor disputes which often result 
 
            in a strike.  Claimant stated that a new contract is 
 
            negotiated every three years to become effective July 1 of 
 
            that year.  The last three contracts were negotiated in 
 
            1980, 1983 and 1986.
 
            
 
                 On July 1, 1989, the last contract had expired and up 
 
            to that date no new agreement had been achieved.  The union 
 
            decided to forego a strike due to the risk of permanent 
 
            replacement workers being hired by employer.  A new contract 
 
            was finally negotiated in October 1989.
 
            
 
                 Claimant testified that he incurred a severe amount of 
 
            stress as a result of employer's bad faith bargaining.  
 
            Claimant believed that during the prior three years, the 
 
            workers had made good faith efforts to accomplish company 
 
            goals.  He felt that the employer had breached their 
 
            agreement to bargain in good faith at the 1989 contract 
 
            negotiations.
 
            
 
                 Claimant also stated that the management was exerting 
 
            an undue amount of stress upon the employees in July and 
 
            August 1989 in an effort to intimidate the workers into 
 
            striking.  Claimant alleged that several workers were 
 
            unjustly disciplined during the period in question.
 
            
 
                 On September 8, 1989, claimant became so emotionally 
 
            distraught that he sought medical treatment for his 
 
            depression.  He was taken off work on September 8, 1989, and 
 
            received counseling and medication.  On September 25, 1989, 
 
            he attempted to return to work, but failed due to the 
 
            effects of his medication.  He finally returned to work on 
 
            October 4, 1989.  Claimant stated that he has had no 
 
            symptoms subsequent to his return to work on October 4, 
 
            1989, and has worked continuously for employer since that 
 
            date. 
 
            
 
                 The first issue to be resolved concerns whether 
 
            claimant sustained an injury arising out of and in the 
 
            course of employment on September 8, 1989.  More 
 
            specifically, the question is whether claimant's 
 
            nontraumatic mental health injury is compensable.  In Iowa, 
 
            for a mental injury to be compensable, it must result from a 
 
            situation of greater dimensions than the day-to-day mental 
 
            stresses and tensions which all employees must experience.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
         
 
              In the case at hand, claimant sustained anxiety and 
 
         depression as a result of his knowledge of labor negotiations and 
 
         undue pressure in the work place exerted by management.  It is 
 
         found that the stress of the labor negotiations was common to all 
 
         employees, not just the claimant.  It is also found that the 
 
         intimidation of workers by management was also common to all of 
 
         claimant's coworkers.  No showing has been made which indicates 
 
         that claimant experienced a situation of greater dimensions 
 
         during the period in question than did his coworkers.
 
         
 
              It is claimant's burden of proving by a preponderance of the 
 
         evidence that an injury arose out of and in the course of 
 
         employment.  Claimant has failed in his burden and shall take 
 
         nothing from this proceeding.
 
         
 
              The remaining issues are moot as this issue is dispositive 
 
         of the entire case.
 
         
 
                                conclusions of law
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 8, 1989. which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 
 
         
 
              In order for a nontraumatically caused mental injury to be 
 
         compensable, it must have resulted from a situation of greater 
 
         dimensions than the day-to-day mental stress tensions which all 
 
         employees must experience.  Schreckengast v. Hammermills, Inc., 
 
         369 N.W.2d 306 (Iowa 1985);  Swiss Colony v. Department of 
 
         Industry, L. & H. R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976).
 
         
 
              Having found that claimant's day-to-day stresses were of no 
 
         greater dimensions than what was experienced by all employees, it 
 
         follows that claimant has failed to prove that he sustained a 
 
         mental injury on September 8, 1989, by a preponderance of the 
 
         evidence.
 
         
 
                                      order
 
         
 
              IT IS THEREFORE, ORDERED:
 
         
 
              That claimant's petition is dismissed.
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That the parties shall pay their own respective costs 
 
         pursuant to rule 343 IAC 4.33.
 
         
 
              Signed and filed this ____ day of June, 1991.
 
         
 
         
 
                                       ______________________________
 
                                       MARLON D. MORMANN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 

 
         
 
         Page òòò  4        
 
         
 
         
 
         
 
         Mr. Theodore Hoglan
 
         Attorney at Law
 
         34 S. 1st Ave
 
         Marshalltown, Iowa  50158
 
         
 
         Mr. D. Brian Scieszinski
 
         Attorney at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa  50309-2464
 
         
 
         
 
              
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      52204
 
                      Filed June   , 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CHARLES L. HASKELL, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  929978
 
            LENNOX INDUSTRIES,  :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL CASUALTY,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            52204
 
            Claimant alleged mental-mental injury as a result of stress 
 
            caused by employer's bad faith labor negotiations.  
 
            Claimant's case failed in that the stress caused by the 
 
            labor negotiations was common to all employees.