BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOSEPH B. JOHNSON,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 930526
 
            HAPPY JOE'S INC.,   
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS INSURANCE CO,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                    INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Joseph B. 
 
            Johnson, claimant, against Happy Joe's, Inc., employer and 
 
            The Travelers Insurance Co., insurance carrier, defendants 
 
            for benefits as the result of an injury which occurred on 
 
            October 5, 1989.  A hearing was held in Davenport, Iowa, on 
 
            November 5, 1993, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Douglas 
 
            C. Scovil.  Defendants were represented by Vicki L. Seeck.  
 
            The record consists of the testimony of Joseph B. Johnson, 
 
            claimant, Brian E. Wells, insurance adjuster, joint exhibits 
 
            A, B, C, and claimant's exhibit No. 1.  Defendants' attorney 
 
            presented a brief description of disputes at the time of the 
 
            hearing.  The deputy ordered a transcript of the hearing.  
 
            
 
                                      ISSUES
 
            
 
                 The parties presented the following issues for 
 
            determination at the time of the hearing.  
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled.
 
            
 
                 Whether claimant is entitled to recover the medical 
 
            expenses incurred with Michael H. W. Hurst, D.C., in the 
 
            amount of $1,210.
 
            
 
                                FINDINGS OF FACT
 
            
 
                causal connection/entitlement/permanent disability
 
            
 
                 It is determined that claimant sustained an injury to 
 
            the body as a whole.
 
            
 
                 It is determined that the injury was the cause of 
 

 
            
 
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            permanent disability.
 
            
 
                 It is determined that claimant has sustained a 6 
 
            percent permanent impairment to the body as a whole and a 6 
 
            percent industrial disability to the body as a whole.
 
            
 
                 Claimant, born August 11, 1946, was 43 years old at the 
 
            time of the injury and 47 years old at the time of the 
 
            hearing (Tran. p. 20).
 
            
 
                 Claimant was injured in an automobile accident on 
 
            October 5, 1989.  Claimant testified that his vehicle was 
 
            stopped, waiting to turn left, when it was struck in the 
 
            rear by another vehicle.  The force of the impact propelled 
 
            claimant's car approximately four to five car lengths into a 
 
            curb (Tran. pp. 28, 29 & 45).  As a result of this 
 
            automobile accident claimant suffered injuries to his 
 
            cervical spine, upper back and right shoulder, and he has 
 
            experienced headaches since the time of the accident.
 
            
 
                 The cervical spine, upper back, right shoulder and 
 
            headaches extend beyond the arm.  Iowa Code section 
 
            85.34(2)(m).  A shoulder injury has been determined to be an 
 
            injury to the body as a whole.  Alm v. Morris Barick Cattle 
 
            Co., 240 Iowa 1174, 38 N.W.2d 161 (1949).
 
            
 
                 Claimant was seen in the emergency room at the Illini 
 
            Hospital on October 6, 1989, the day after the injury.  They 
 
            gave him a cervical collar to wear (Tran. p. 30).
 
            
 
                 Claimant received two chiropractic treatments from Dr. 
 
            Ross (full name unknown).  Dr. Ross took x-rays.  Claimant 
 
            then went to a Dr. Honda (full name unknown), a neurologist 
 
            on November 9, 1989.  Dr. Honda treated claimant for some 
 
            time and then referred him to Vijay Verma M.D., a physical 
 
            medicine and rehabilitation doctor, who saw claimant on 
 
            January 15, 1990 (Tran. pp. 31, 34 & 35).  Subsequent to 
 
            this treatment claimant was examined and evaluated by 
 
            Bakkiam Subbiah, M.D., a neurologist, on September 21, 1992.  
 
            Claimant was examined and evaluated by Robert J. Chesser, 
 
            M.D., a physical medicine and rehabilitation physician, on 
 
            January 3, 1991 and again on January 13, 1993 (Tran. p. 39).
 
            
 
                 Dr. Verma treated claimant from approximately May 1, 
 
            1990 through November 3, 1990.  His diagnosis was myofascial 
 
            strain. He said this was "... most probably related to his 
 
            whiplash injury, sustained on [the] October 5, 1989 
 
            incident." (Exhibit B, page 9).  Xylocaine cortisone 
 
            iontophoresis injection treatments were helpful but did not 
 
            completely resolve his pain.  Dr. Verma measured claimant's 
 
            range of motion with a goniometer and found that all 
 
            measurements were within normal limits except for abduction 
 
            and external rotation of the right shoulder.  These revealed 
 
            some pain in the anterior shoulder area in the last five 
 
            degrees but the range of motion was adequate (Ex. B, p. 4).  
 
            
 
                 A loss of range of motion in the shoulder constitutes 
 
            an injury to the body as a whole.  Fullerton v. Caterpiller 
 
            Tractor Co., IV Iowa Industrial Commissioner Report 135 
 
            (App. Dec. 1984).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Verma did not find any permanent impairment to any 
 
            of the injured areas and did not impose any permanent 
 
            physical restrictions on claimant's activities (Ex. B, pp 
 
            1-11).  Dr. Verma's concluding diagnosis was bicipital 
 
            tenosynovitis.  
 
            
 
                 Claimant testified that Dr. Verma treated him for over 
 
            one year using acupuncture, cortisone shots and shock 
 
            treatments, and he prescribed a TENS units on June 4, 1990, 
 
            which claimant was still using at the time of the hearing 
 
            (Tran. pp. 32-36).
 
            
 
                 Defendants were still paying for the use of the TENS 
 
            unit at the time of the hearing (Tran. p. 32).
 
            
 
                 Even though Dr. Verma did not find any permanent 
 
            impairment or disability, nevertheless, it is clear that Dr. 
 
            Verma thought claimant's complaints were caused by the 
 
            injury of October 5, 1989.  He said they were most probably 
 
            related to his whiplash injury of October 5, 1989.
 
            
 
                 Dr. Chesser performed his first examination/evaluation 
 
            on January 3, 1991.  Dr. Chesser stated that claimant had 
 
            improved with Dr. Verma's care but had continuing complaints 
 
            of pain in his neck, upper back and right shoulder, and he 
 
            continued to have headaches.  These are all parts of the 
 
            body as a whole.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
            (Iowa 1986).
 
            
 
                 Dr. Chesser noted that the x-rays of the cervical spine 
 
            taken by Dr. Honda in November of 1989 were within normal 
 
            limits.  An MRI of his cervical spine on November 21, 1989, 
 
            was within normal limits.  An EMG performed on January 16, 
 
            1990, was normal.  A CT scan of his head without contrast, 
 
            on March 26, 1990, was negative.  
 
            
 
                 Dr. Chesser determined that claimant's cervical and 
 
            upper back symptoms were a musculoligamentous strain with 
 
            resultant tension myaligia which for the most part had 
 
            improved over time.  He felt that in all likelihood claimant 
 
            may have suffered a specific injury to his right shoulder at 
 
            the time of the injury as the result of gripping the 
 
            steering wheel, possibly a tendinitis, or even a mild 
 
            rotator cuff tear.  He determined that claimant had reached 
 
            maximum medical improvement and that he had nothing further 
 
            to offer claimant.  He did not recommend chiropractic 
 
            treatment.  Dr. Chesser did not find any permanent 
 
            impairment at this time nor did he impose any permanent work 
 
            restrictions on claimant (Ex. C, pp. 1-8).
 
            
 
                 Dr. Chesser proceeded on the history of the motor 
 
            vehicle accident, he described it in some detail and it is 
 
            clear from his remarks that he believed that claimant's 
 
            condition was caused by this accident.
 
            
 
                 Dr. Subbiah examined claimant intensively and 
 
            extensively on September 21, 1992.  He proceeded on the 
 
            history of the automobile accident injury of October 5, 
 
            1989.  He described the accident in some detail.  He said 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant had a full range of motion of the shoulder but did 
 
            complain of pain on abduction.
 
            
 
                 Dr. Subbiah attributes claimant's complaints to this 
 
            injury which is the automobile accident on October 5, 1989 
 
            (Ex. A, p. 5).  He indicated that claimant could continue 
 
            with the TENS unit but he did not feel that it was a medical 
 
            necessity.  Dr. Subbiah said that claimant's remaining 
 
            complaint was constant right shoulder pain that may be 
 
            related to an underlying bicipital tendinitis.  He stated 
 
            claimant had an entirely normal range of motion in the 
 
            shoulder.  Dr. Subbiah agreed with Dr. Chesser that nothing 
 
            further needed to be done.  Dr. Subbiah found no permanent 
 
            partial impairment and no abnormality in the cervical region 
 
            or in the thoracic region that would merit an impairment 
 
            rating.  He declined to make a finding on the right 
 
            shoulder.  He did not recommend chiropractic care (Ex. A, 
 
            pp. 1-5).
 
            
 
                 Claimant was examined and evaluated a second time by 
 
            Dr. Chesser on January 13, 1993, two years after his 
 
            previous examination in 1991.  Dr. Chesser noted that 
 
            claimant was working, his condition was stable, he had not 
 
            had any further treatment, but that he continued to note 
 
            intermittent pain in his neck and right shoulder, and 
 
            suffered occipital headaches which were aggravated by 
 
            repetitive use of his arm.  
 
            
 
                 Claimant testified that he was now a school trained 
 
            blackjack dealer (Tran. pp. 25 & 26).  He testified and 
 
            demonstrated that even though his left hand and arm were 
 
            dominate, he was, nevertheless, instructed by his employer 
 
            to deal out the cards, and clear the table of cards, with 
 
            his non-dominate right hand and arm in which he had the 
 
            continued complaints of pain (Tran. pp. 33, 34, 46, 47 & 
 
            58).  Dr. Chesser also made a note of this fact (Ex. A, pp. 
 
            1-5).
 
            
 
                 Dr. Chesser also noted that claimant had x-rays of the 
 
            cervical spine, an MRI of the cervical spine, EMG testing of 
 
            the upper extremities and CT scan of the head, and that all 
 
            of these test results were normal.  Dr. Chesser's physical 
 
            examination, which he carried out in some detail, was 
 
            essentially normal, except for pain.  It included range of 
 
            motion measurements of the neck and right shoulder.  He did 
 
            note, however, that active shoulder abduction and external 
 
            rotation increased pain in his right shoulder, but there was 
 
            no atrophy in the shoulder on inspection.  
 
            
 
                 Dr. Chesser concluded, and his final evaluation in this 
 
            case is as follows:
 
            
 
                    ASSESSMENT:  Based on today's evaluation, there 
 
                 is evidence of ongoing pain symptoms in the 
 
                 cervical spine and right shoulder.  I feel that 
 
                 the cervical symptoms are related to a 
 
                 musculoligamentous strain with reflex tension 
 
                 myalgia.  This also may be producing the headaches 
 
                 that he intermittently experiences.  Based on the 
 
                 ongoing pain symptoms I do feel that there is 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 permanent impairment.  Using table 53 of the AMA's 
 
                 Guides to the Evaluation of Permanent 
 
                 Impairment, Third Edition (Revised), there would 
 
                 be a 4% whole person impairment based on the 
 
                 ongoing cervical symptoms.  The range of motion of 
 
                 the cervical spine is normal.  There is no 
 
                 impairment associated with any loss of range of 
 
                 motion.
 
            
 
                    In regards to the right shoulder, there is 
 
                 noted loss of range of motion in abduction and 
 
                 internal rotation.  Using the AMA guidelines, 
 
                 there is a 3% impairment to the upper extremity, 
 
                 and it is my impression that his ongoing pain 
 
                 symptoms are related to a chronic tendinitis.  He 
 
                 does get some benefit from the use of the TNS 
 
                 unit, so I would suggest that he continue to use 
 
                 this on a long-term basis.  
 
            
 
                    Combining the above there is a total of a 6% 
 
                 whole person impairment based on the cervical and 
 
                 shoulder involvement (Ex. C, pp. 5 & 6).
 
            
 
                 An injury to the cervical tract (neck) and shoulder are 
 
            injuries to the body as a whole.  See Alm, Lauhoff and 
 
            Fullerton cited earlier.  The injury was to these parts.  
 
            The disability was to these parts.  The impairment was to 
 
            these parts.  Prewitt v. Firestone, file no. 876688, 931128 
 
            (Appeal Decn. June 30, 1993).
 
            
 
                 Earlier, Dr. Chesser said the chronic tendinitis was 
 
            caused by the automobile accident.
 
            
 
                 Dr. Chesser concluded that claimant had undergone 
 
            extensive physical therapy, and injections in the right 
 
            shoulder and that,  therefore, at this time he felt there 
 
            was little more to offer him in regards to ongoing 
 
            treatment.  He saw nothing that would suggest any type of a 
 
            surgical lesion (Ex. C, p. 6).  
 
            
 
                 At the hearing claimant testified that his current 
 
            situation was that his neck and upper back had improved, 
 
            however, he still had sharp shooting pains for anywhere from 
 
            a few minutes to a couple of hours in his right shoulder 
 
            (Tran. pp. 41 & 42).  He said that there was nothing that he 
 
            knew of that could be done to stop this pain (Tran. p. 42).  
 
            The TENS unit helped more than anything else (Tran. pp. 42 & 
 
            47).  Claimant said his shoulder was an ongoing problem and 
 
            hurts five or six times a week (Tran. p. 44).  He has 
 
            headaches three or four times a week (Tran. p. 44).  
 
            
 
                 Claimant said that due to this injury he can no longer 
 
            swim well or play volleyball or golf as much because he is 
 
            unable to reach up or swing with his right arm.  He cannot 
 
            mow the lawn.  He cannot run a vacuum because he cannot 
 
            tolerate the back and forth movements of his right hand and 
 
            arm (Tran. pp. 45 & 46).  Claimant testified that he can 
 
            sweep in the cards after a game of blackjack with his right 
 
            hand and arm but he is aware of the pain (Tran. p. 47).  
 
            Claimant said he has lost strength and grip strength in his 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            right hand and arm because sometimes, things which he is 
 
            holding, fall out of his right hand (Tran. p. 48).  
 
            
 
                 Claimant denied and there is no evidence of any earlier 
 
            headaches, neck pain, upper back pain or right shoulder pain 
 
            (Tran. pp. 48 & 49)  
 
            
 
                 Claimant admitted that as a full-time blackjack dealer 
 
            (originally for the Diamond Lady and later for the Casino 
 
            Rock Island) he earned a total of $19,599 in 1992; whereas 
 
            he only earned $250 a week or about $12,000 a year working 
 
            for employer in this case (Tran. pp. 52 & 53).  Claimant 
 
            further admitted that he was able to perform the blackjack 
 
            dealer job for both of these employers, but not without some 
 
            discomfort (Tran. pp. 46, 47 & 54).  When applying for his 
 
            current job he said he had no disabilities on the 
 
            application form (Tran. p. 54).
 
            
 
                 Claimant testified that when his healing period was 
 
            over from this injury employer told him that they did not 
 
            have any employment for him (Tran. p. 27).  Claimant also 
 
            testified that he was not able to return to his job with the 
 
            Illinois National Guard after this injury which paid $300 
 
            per month and $1,300 to $1,500 for summer camp.  This would 
 
            approximate $5,000 per year loss of income (Tran. p. 23).  
 
            Claimant learned food preparation and food sanitation from 
 
            his National Guard training (Tran. p. 59).
 
            
 
                 Claimant maintained that he could not continue with his 
 
            military status with the Illinois National Guard after his 
 
            injury for the reason that they would not allow him to serve 
 
            if it was necessary for him to wear a TENS unit.  Therefore, 
 
            he received a medical discharge (Tran. p. 24).  It is 
 
            determined, however, from the medical evidence in this case 
 
            that Dr. Subbiah said that the TENS unit was not a medical 
 
            necessity and Dr. Chesser acquiesced in it because claimant 
 
            said it relieved his pain.  Claimant has chosen to wear the 
 
            TENS unit when he works.  He was not ordered to do so by a 
 
            physician.  Nor is there any medical evidence that claimant 
 
            could not continue with his duties in the Illinois National 
 
            Guard.
 
            
 
                 Claimant testified that Dr. Verma told him not to lift 
 
            or carry anything heavy with his right hand, however, there 
 
            is no evidence of this fact in Dr. Verma's medical records, 
 
            but it is entirely possible that Dr. Verma told him this as 
 
            a precaution (Tran. pp. 44, 50, 56 & 57).
 
            
 
                 Brian Wells, an insurance claim representative, 
 
            testified that he was the adjuster for the insurance company 
 
            of the person who struck claimant's car at the time of the 
 
            automobile accident on October 5, 1989.  Wells testified 
 
            that when he knocked on the door of claimant's house on 
 
            October 16, 1989, to check out the damage on claimant's car 
 
            he saw through the glass that claimant was laying on the 
 
            floor prone and presumably playing with his children.  
 
            However when he heard the knock on the door he "rocketed up" 
 
            and "shot up off the floor" and went into another room and 
 
            when he answered the door he had on his cervical collar 
 
            which he did not have on when he was laying on the floor 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            playing with his children (Tran. pp. 14-20).  Claimant 
 
            testified that he was instructed not to wear the collar when 
 
            he was in bed (Tran. p. 30).  
 
            
 
                 Wherefore, based upon the foregoing evidence (1) that 
 
            claimant sustained a specific traumatic injury, (2) that the 
 
            injury has caused persistent pain problems over a long 
 
            period of time to claimant's neck, upper back, right 
 
            shoulder, (3) that Dr. Chesser assessed a 6 percent overall 
 
            body as a whole permanent impairment rating, (4) that 
 
            claimant is impaired on account of pain from the full use of 
 
            his right upper extremity, especially in abduction, external 
 
            rotation and internal rotation, (5) based on claimant's age 
 
            of 43 at the time of the injury and 47 at the time of the 
 
            hearing, (6) based on the fact that claimant has (a) a high 
 
            school education, (b) two years of college training in 
 
            management, marketing and advertising (Tran. p. 21), (c) 
 
            training in food service through the Illinois National Guard 
 
            and (d) a variety of past employments including managerial 
 
            skills (Tran. pp. 55 & 56), (7) considering that claimant 
 
            has lost no actual earnings, but on the contrary, is earning 
 
            more now than at the time of the injury (Tran. p. 27), (8) 
 
            considering that claimant has no permanent restrictions, (9) 
 
            applying all the factors used to determine industrial 
 
            disability, Christensen v. Hagen, Inc., vol. I, no. 3, State 
 
            of Iowa Industrial Commissioner Decisions 529 (App. Dec. 
 
            March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, 
 
            no. 3 State of Iowa Industrial Commissioner Decisions 654, 
 
            658 (App. Dec. February 28, 1985) and (10) applying agency 
 
            expertise [Iowa Administrative Act 17A. 14(5)] it is 
 
            determined that claimant has sustained a 6 percent permanent 
 
            industrial disability to the body as a whole.
 
            
 
                                MEDICAL BENEFITS 
 
            
 
                 It is determined that claimant is not entitled to 
 
            recover the $1,210 in medical expenses incurred with Michael 
 
            H. W. Hurst, D.C. (Ex. 1, pp. 1-27).
 
            
 
                 Employers are liable to furnish reasonable medical 
 
            care.  At the same time they are given the right and 
 
            privilege of choosing the care.  In this case, employer has 
 
            at all times admitted liability and therefore is entitled to 
 
            the right to choose the care.  Iowa Code section 85.27.  
 
            Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner 
 
            Report 16 (Appeal Decn. 1981); Holbert v. Townsend 
 
            Engineering Co., Thirty-second Biennial Report of the 
 
            Industrial Commissioner 78 (1975).
 
            
 
                 Claimant admitted at the hearing that he did not 
 
            request authorization to see Dr. Hurst from either the 
 
            employer or the insurance carrier (Tran. p. 57).  
 
            
 
                 Claimant testified that he asked Dr. Verma if he 
 
            thought it would help for him to go to a chiropractor after 
 
            Dr. verma told claimant that he had nothing further to 
 
            offer.  Claimant contended that Dr. Verma told him, "Well, 
 
            if you fell that that would help you, then by all means, 
 
            go." (Tran. p. 36).  It is determined that this comment did 
 
            not constitute referral from one physician to another 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            physician on the basis that the original physician acted as 
 
            the agent of the employer and insurance carrier.  Limoges v. 
 
            Meier Auto Salvage, I Industrial Commissioner Reports 207 
 
            (1981); Kittrell v. Allen Memorial Hospital, 34 Biennial 
 
            Report of the Industrial Commissioner 164 (1979); Coleman v. 
 
            Coleman Industrial Cleaning, 4 Iowa Industrial Commissioner 
 
            Reports 76 (1984).
 
            
 
                 Actually Dr. Verma did not specifically recommend a 
 
            chiropractor and Dr. Hurst was the selection of claimant, 
 
            not Dr. Verma.  Claimant did not produce a written 
 
            prescription or order for chiropractic care (Tran. p. 57).
 
            
 
                 The fact that defendants paid for two chiropractic 
 
            treatments shortly after the injury is not authorization to 
 
            incur $1,210 more in chiropractic expenses without specific 
 
            authorization some three years after the initial injury.
 
            
 
                 Therefore, the care of Dr. Hurst is unauthorized and no 
 
            allowance can be made for this care.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 Claimant sustained an injury to the body as a whole.  
 
            Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 
 
            161 (1949); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986); Fullerton v. Caterpiller Tractor Co., IV Iowa 
 
            Industrial Commissioner Report 135 (App. Dec. 1984).
 
            
 
                 That the injury of October 5, 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 sustained a 6 percent industrial 
 
            disability to the body as a whole and is entitled to 30 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).  
 
            
 
                 That the care of Dr. Hurst was unauthorized and 
 
            therefore defendants are not liable for the expense of this 
 
            care.  Iowa Code section 85.27.  Barnhart v. MAQ, Inc., I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decn. 1981); 
 
            Holbert v. Townsend Engineering Co., Thirty-second 
 
            Biennial Report of the Iowa Industrial Commissioner 78 
 
            (1975).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant thirty (30) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of one hundred fifty-five and 90/100 dollars ($155.90) per 
 
            week in the total amount of four thousand six hundred 
 
            seventy-seven dollars ($4,677) commencing on July 5, 1990, 
 
            as stipulated to by the parties.  
 

 
            
 
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                 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 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. Douglas C. Scovil
 
            Attorney at Law
 
            2009 9th Avenue
 
            Rock Island, IL  61201
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third St.
 
            Davenport, IA  52801
 
 
 
            
 
 
            
 
            
 
            
 
                                  1803, 1803.1, 1108.50, 2500, 2700
 
                                  Filed December 1, 1993
 
                                  Walter R. McManus, Jr.
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JOSEPH B. JOHNSON,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 930526
 
            HAPPY JOE'S INC.,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS INSURANCE CO,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1803.1
 
            
 
                 Neck, upper back, shoulder and headaches were 
 
            determined to be injuries to the body as a whole citing Alm, 
 
            Lauhoff and Fullerton, and not injuries to the arm.
 
            
 
            1108.50, 1803
 
            
 
                 It was determined that the injury was the cause of 
 
            permanent disability.  Several doctors examined and 
 
            evaluated claimant.  None of them found a permanent 
 
            impairment rating or that any permanent restrictions were 
 
            needed until three and one-half years after the injury one 
 
            of them determined claimant was entitled to a 6 percent 
 
            permanent impairment rating based on continued pain in his 
 
            neck and some mild limitation of motion in his shoulder.  It 
 
            was determined that claimant sustained a 6 percent permanent 
 
            impairment and also a 6 percent industrial disability to the 
 
            body as a whole.  Claimant was earning more after the injury 
 
            than before the injury in his new profession as a blackjack 
 
            dealer.
 
            
 
            2500, 2700
 
            
 
                 It was determined that claimant was not entitled to 
 
            $1,210 in chiropractic treatment that he obtained without 
 
            authorization from either employer or insurance carrier.  
 
            His arguments in favor of entitlement were rejected.
 
            
 
                 The fact that one of the authorized treating physicians 
 
            told claimant, in response to a question from claimant, that 
 
            he could seek chiropractic treatments if he thought it would 
 
            help, after the treating physician said there was nothing 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            more that he could do, was not construed as referral from 
 
            authorized treating physician to another physician as the 
 
            agent of the employer and insurance carrier.  This was a 
 
            general question and a general response.  The authorized 
 
            physician did not in fact refer claimant to a chiropractor.  
 
            Rather, claimant chose one he wanted to see and went to him.
 
            
 
                 The fact that defendants had paid for two chiropractic 
 
            treatments immediately after the injury was not construed to 
 
            be implied consent for claimant to incur another $1,210 in 
 
            chiropractic expenses without specific authorization some 
 
            three and one-half years after the injury.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            NORMAN KEDDIE,                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No 930533
 
            FIRESTONE TIRE & RUBBER, 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
                              INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Norman 
 
            Keddie, claimant, against Firestone Tire & Rubber, employer, 
 
            and CIGNA, insurance carrier, and the Second Injury Fund of 
 
            Iowa for benefits as a result of an injury to claimant's 
 
            right arm which occurred on December 4, 1987, (file no. 
 
            884054) and an injury to claimant's left arm which occurred 
 
            on August 17, 1989 (file no. 930533).  Employer and its 
 
            insurance carrier settled both claims against defendant 
 
            employer at the time of the hearing.  A hearing was held in 
 
            Des Moines, Iowa on October 6, 1992, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Robert W. Pratt.  Defendant Second Injury 
 
            Fund of Iowa was represented by Stephen E. Moline.  The 
 
            record consists of the testimony of Norman Keddie, claimant, 
 
            Mike Ables, union representative, joint exhibits 1 through 
 
            20, and defendant Second Injury Fund's exhibits A & B.  The 
 
            deputy ordered a transcript of the hearing.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            Whether the Second Injury Fund is liable to claimant, and if 
 
            so, the extent of benefits, if any, to which claimant is 
 
            entitled.  
 
                    
 
                               FINDINGS OF FACT
 
            
 
                       LIABILITY OF THE SECOND INJURY FUND
 
            
 
                 It is determined that claimant has satisfied the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            requirements of Iowa Code section 85.64 and has established 
 
            the liability of the Second Injury Fund of Iowa.
 
            
 
                 Claimant and the Second Injury Fund of Iowa stipulated 
 
            on the prehearing report that claimant sustained an injury 
 
            which arose out of and in the course of his employment to 
 
            his right arm on December 4, 1987, and that it was the cause 
 
            of permanent disability.  The fund also stipulated that 
 
            claimant sustained an injury to his left arm on August 17, 
 
            1989, which arose out of and in the course of employment 
 
            with employer which caused permanent disability to his left 
 
            arm.  Thus, the threshold requirements for the liability of 
 
            the Second Injury Fund have been established. Iowa Code 
 
            section 85.64.
 
            
 
                 The primary issue is the extent of benefits, if any, to 
 
            which claimant is entitled from the Second Injury Fund of 
 
            Iowa.  
 
            
 
                    ENTITLEMENT TO SECOND INJURY FUND BENEFITS
 
            
 
                 It is determined that claimant sustained a 35 percent 
 
            industrial disability to the body as a whole for which the 
 
            overall entitlement is 175 weeks of permanent partial 
 
            disability benefits.  
 
            
 
                 It is determined that claimant sustained an 8.25 
 
            percent permanent impairment to his right arm for which the 
 
            entitlement is 20.625 weeks of scheduled member permanent 
 
            partial disability benefits.
 
            
 
                 It is determined that claimant sustained an 8.5 percent 
 
            permanent impairment to his left arm for which the 
 
            entitlement is 21.25 weeks of scheduled member permanent 
 
            partial disability benefits.
 
            
 
                 When the scheduled member disability benefits for both 
 
            arms, which totals 41.875 weeks (20.625 + 21.25), is 
 
            subtracted from claimant's overall industrial disability of 
 
            175 weeks, it leaves 133.125 weeks of permanent partial 
 
            disability benefits for which the Second Injury Fund of Iowa 
 
            is liable at the stipulated rate of $566.81 in the total 
 
            amount of $75,456.58.  Irish v. McCreary Saw Mill, 175 
 
            N.W.2d 364 (Iowa 1979); Second Injury Fund v. Mich Coal Co., 
 
            274 N.W.2d 300, 364 (Iowa 1979); Second Injury Fund v. 
 
            Neelans, 436 N.W.2d 355 (Iowa 1989).
 
            
 
                 The basis for these determinations are as follows:
 
            
 
                 Claimant first reported symptoms of pain, numbness and 
 
            tingling in his right arm on December 4, 1987.  Oscar Mayer 
 
            Foods Corp. v Tasler, 483 N.W.2d 824,830 (Iowa 1992).  
 
            Conservative medical treatment, limited pace duty and light 
 
            duty failed to correct the situation.  Arnis Grundberg, 
 
            M.D., an orthopedic surgeon, diagnosed right cubital tunnel 
 
            syndrome, right carpal tunnel syndrome, and right ulnar 
 
            tunnel syndrome and performed a decompression of each of 
 
            these three areas on May 4, 1988 (Exhibit 12, page 71).  
 
            Claimant continued to have right arm problems after the 
 
            surgery and Dr. Grundberg subsequently diagnosed medial 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            epicondylitis of the right elbow and performed a 
 
            decompression for medial epicondylitis of the right elbow on 
 
            November 14, 1988 (Ex. 13, p. 72).
 
            
 
                 Claimant developed similar symptoms in his left arm on 
 
            August 17, 1989, which Dr. Grundberg diagnosed as mild left 
 
            cubital tunnel syndrome on August 18, 1989, (Ex. 15, p. 89) 
 
            and further diagnosed left carpal tunnel syndrome on 
 
            September 22, 1989 (Ex. 15, p. 91).  He performed a 
 
            decompression of the left carpal tunnel and a decompression 
 
            of the left cubital tunnel on October 4, 1989 (Ex. 15, p. 
 
            93).
 
            
 
                 On March 7, 1989, Dr. Grundberg determined that 
 
            claimant sustained a 7.5 percent permanent impairment to the 
 
            right arm (Ex. 15, pp. 84 & 89).  On December 1, 1989, Dr. 
 
            Grundberg determined that claimant sustained an 8 percent 
 
            permanent impairment of the left arm (Ex. 15, pp. 93 & 97).  
 
            No permanent restrictions appear in the written evidence 
 
            from Dr. Grundberg himself, but claimant testified that Dr. 
 
            Grundberg told him not to build tires anymore (Transcript 
 
            page 51).  Claimant's testimony is given corroboration and 
 
            credence by James Blessman, M.D., a company physician, who 
 
            later restricted claimant from building tires permanently.  
 
            
 
                 On September 25, 1989, which was prior to the left arm 
 
            surgeries on October 4, 1989, Dr. Blessman stated, 
 
            
 
                 "The patient is also having quite a bit of trouble 
 
                 with his left upper extremity.  Had EMG studies 
 
                 which were apparently positive for both the elbow 
 
                 and the wrist.  He has already had surgery on the 
 
                 right wrist and elbow.  Expect we will have to put 
 
                 him on permanent restriction from tire building 
 
                 for repetitive trauma injuries."  (Ex. 17, p. 
 
                 101).  
 
            
 
                 After left arm surgeries were performed on October 4, 
 
            1989,   Dr. Blessman stated in his notes, on November 13, 
 
            1989,
 
            
 
                 "He wants to go back to limited pace in two weeks.  
 
                 I asked him to go ahead and go over that with Dr. 
 
                 Grundberg.  The question will be whether he should 
 
                 go back and build tires at all."  (Ex. 17, p. 
 
                 101).  
 
            On December 4, 1989, Dr. Blessman entered in his notes, 
 
            "In reviewing his medical history I would question whether 
 
            he should be building tires and he is going to return back 
 
            to see me in January.  At that point, will probably put him 
 
            on permanent restriction from tire building to prevent him 
 
            from future recurrences of his upper extremity pain and 
 
            disease problems."  (Ex. 17 p. 102).  
 
            
 
                 In a subsequent entry which has the date cut off by the 
 
            copy machine and which cannot be quoted because the quotable 
 
            portion has a hole punched in it by a paper punch, Dr. 
 
            Blessman stated that at this point he would like to put 
 
            claimant on a permanent restriction from tire building.  He 
 
            further indicated that claimant wanted to bid out of it 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            because claimant felt he could no longer continue the 
 
            activities of a tire builder.  Dr. Blessman concluded this 
 
            note by stating that he agreed that claimant would be at 
 
            risk of further medical problems to his upper extremities 
 
            should he return to active tire building activities (Ex. 17, 
 
            p. 102).  
 
            
 
                 On February 13, 1991, Dr. Blessman noted that claimant 
 
            had appealed the permanent restriction from tire building 
 
            and reluctantly released claimant to try it again.  Dr. 
 
            Blessman stated, "If he develops any problems with his upper 
 
            extremities, we will go ahead and reinstitute his permanent 
 
            restriction.  I basically do not agree that it is a good 
 
            idea for him to go back, but we will give him a trial to see 
 
            how he does."  (Ex. 17, p. 103).  
 
            
 
                 Thus, Dr. Blessman, the in-house company physician, 
 
            made it crystal clear that in his professional medical 
 
            opinion that claimant is foreclosed from tire building in 
 
            the future even though he recanted his restriction 
 
            temporarily to let claimant try it again after claimant had 
 
            appealed Dr. Blessman's imposition of a permanent 
 
            restriction against tire building.  Claimant corroborated 
 
            Dr. Blessman's notes by testifying that the doctor did agree 
 
            to let him try tire building before he totally disqualified 
 
            him but that Dr. Blessman told claimant that ". . . he 
 
            didn't want me building tires, period."  (Trans., p. 51).  
 
            
 
                 Claimant related that when he was disqualified from 
 
            tire building in December of 1989, and bid into another job 
 
            of his own choice to make as much money as he could, he 
 
            nevertheless suffered a loss of $15 per hour (Trans., p. 
 
            56).  This is verified by claimant's pay records 
 
            (Defendant's Exhibit B).  For the week of December 3, 1989, 
 
            claimant's incentive pay rate as a tire builder was $25 per 
 
            hour (Ex. B, p. 22).  Subsequent to that as a tire layer 
 
            (Trans., p. 57) it was $9 and $10 per hour (Ex. B, pp. 
 
            23-25).  This constitutes an initial 60 percent decrease in 
 
            his pay.  By mid 1990 claimant's hourly rate of pay had 
 
            increased to almost $15 per hour at some points and at other 
 
            times it only reached $12 or $13 per hour (Ex. B, pp. 
 
            26-33).  The decrease in his hourly rate from $25 per hour 
 
            to $15 per hour constitutes a loss of a 40 percent loss of 
 
            pay for most of 1990.
 
            
 
                 Claimant testified that the reason he begged Dr. 
 
            Blessman to allow him to return to tire building in February 
 
            of 1991, was because Firestone had started layoffs at that 
 
            time and tire builders are the last persons to be laid off 
 
            and the first persons to be called back after a layoff 
 
            (Trans., pp. 54 & 58).  He said it was solely to avoid a 
 
            layoff (Trans., p. 60).  Claimant then worked as a tire 
 
            builder from February of 1991 until his termination in 
 
            November of 1991, a period of nine months.  After returning 
 
            to tire building claimant began to make $15 per hour at the 
 
            incentive rate and gradually worked back up to $17 and $18 
 
            per hour by July of 1991, (Ex. B, pp. 35-37 and the two top 
 
            pages of Exhibit B which are unnumbered).  A decrease from 
 
            claimant's top incentive rate of $25 per hour to $18 per 
 
            hour is a 28 percent decrease in pay.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was examined by Martin S. Rosenfeld, D.O., at 
 
            claimant's request on March 10, 1992.  Dr. Rosenfeld 
 
            determined that using the AMA Guides he found that claimant 
 
            sustained a 9 percent permanent impairment to each arm 
 
            caused by his carpal tunnel and cubital tunnel syndromes and 
 
            surgeries (Ex. A).
 
            
 
                 Dr. Blessman did not give any impairment ratings but he 
 
            made it patently clear that he felt claimant should be 
 
            permanently restricted from tire building even though 
 
            claimant was able to perform this function for nine months 
 
            from February of 1991 until his termination in November of 
 
            1991.  Claimant testified that if he had reported to the 
 
            medical department on one single occasion with a complaint 
 
            to his hands or arms that he would have been summarily and 
 
            peremptorily disqualified from tire building.  Mike Ables, 
 
            the union representative, corroborated and verified that 
 
            after claimant returned to tire building in February of 1991 
 
            he was on a "do-or-die basis."  (Trans. p. 121).  Ables 
 
            explained that if claimant would have reported to medical 
 
            just one time with any kind of problem with his carpal 
 
            tunnel or cubital tunnel they would have immediately taken 
 
            him out of tire building and placed him on a day work job.  
 
            
 
                 Based on the foregoing evidence these findings of fact 
 
            are made.
 
            
 
                 First, it is determined that based upon Dr. Grundberg's 
 
            impairment rating of 7 1/2 percent to the right arm and Dr. 
 
            Rosenfeld's impairment rating of 9 percent to the right arm 
 
            it is determined that claimant has sustained an 8.25 percent 
 
            permanent impairment to the right arm.  This determination 
 
            is supported by the fact that claimant and defendant 
 
            employer agreed that this was the correct permanent 
 
            impairment to the right arm and that the industrial 
 
            commissioner approved a settlement of this injury based upon 
 
            this amount of impairment.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice (2nd Ed.) Section 13-4, page 
 
            125.  
 
            
 
                 Second, it is determined that based upon Dr. 
 
            Grundberg's determination of an 8 percent permanent 
 
            impairment to the left arm and Dr. Rosenfeld's determination 
 
            of a 9 percent permanent impairment to the left arm it is 
 
            determined that claimant has sustained an 8 1/2 percent 
 
            permanent impairment to the left arm.  This determination 
 
            again is supported by the agreement of claimant and 
 
            defendant employer as to the degree of impairment and it is 
 
            also supported by the fact that the industrial commissioner 
 
            has approved a settlement for this amount of impairment.  
 
            
 
                 Third, it is determined that for all practical purposes 
 
            claimant is foreclosed from tire building based upon the 
 
            strong and frequently repeated opinion of Dr. Blessman, the 
 
            company physician, who should be in a better position to 
 
            know that even Dr. Grundberg and Dr. Rosenfeld.  Even though 
 
            claimant was able to perform this job with difficulty from 
 
            February to November of 1991, the evidence from Dr. Blessman 
 
            indicates that it was inevitable that he would not have been 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            able to do so on a long term basis.  Claimant admitted to 
 
            his wife that he could not continue as in the past.  
 
            Furthermore the testimony of claimant and Ables established 
 
            that if he would have had one single complaint to either of 
 
            his upper extremities he would have been disqualified from 
 
            tire building because of the previous disqualification from 
 
            tire building by Dr. Blessman due to the difficulties that 
 
            he had encountered with his arms.  
 
            
 
                 Fourth, it is determined that claimant has sustained a 
 
            substantial loss of actual earnings.  A 60 percent loss and 
 
            a 40 percent loss have been established.  Even when claimant 
 
            returned to tire building from February to November of 1991, 
 
            his incentive hourly rate was decreased from $25 per hour to 
 
            $18 per hour at it's highest point and this constitutes a 28 
 
            percent loss of actual earnings for a period of 
 
            approximately nine or ten months.
 
            
 
                 Fifth, it is further determined that claimant has 
 
            probably foreclosed from other repetitive work with his 
 
            hands and arms in the competitive labor market because of 
 
            the cubital tunnel, carpal tunnel and ulnar tunnel problems 
 
            and surgeries that transpired while working for employer 
 
            from September of 1987 to November of 1991, a period of a 
 
            little over four years.  A large segment of the competitive 
 
            labor market is foreclosed to persons who have sustained 
 
            previous injuries of carpal tunnel, cubital tunnel, and 
 
            ulnar tunnel and who have had multiple surgeries for these 
 
            conditions.  
 
            
 
                 It is very doubtful that claimant could start new 
 
            employment at the $18 per hour that he was earning for 
 
            employer at the time of his termination (Ex. B, 1st p.).  If 
 
            claimant were fortunate enough to find employment at $12 per 
 
            hour, which would indeed be rare, he would still have a loss 
 
            of $13 per hour from his pre-injury peak wage of $25 per 
 
            hour and this would amount to a 52 percent loss of earnings.  
 
            
 
                 It is difficult to assess claimant's true actual loss 
 
            of earnings because he has not performed any employment 
 
            since his termination with this employer.  Schofield v. Iowa 
 
            Beef Processors, Inc., II Iowa Industrial Commissioner 
 
            Report 334, 336 (1981).  Although the test of industrial 
 
            disability is loss of earning capacity, loss of actual or 
 
            potential earnings is a significant indicator of loss of 
 
            earnings capacity.  
 
            
 
                 Claimant was 30-years-old at the time of this injury.  
 
            Although claimant was in the early years of his adult 
 
            working lifetime, it would appear that he was, nevertheless, 
 
            near the peak of his earnings capacity as a tire builder 
 
            because he was earning $23, $24, and $25 per hour at the 
 
            time he was disqualified by Dr. Blessman from tire building 
 
            on account of these injuries in December of 1989 (Ex. B, p. 
 
            22).  Claimant frequently made these amounts of hourly pay 
 
            between May and December of 1989 (Ex. B, pp. 16-22).  These 
 
            extremely high earnings for unskilled labor certainly 
 
            increase claimant's loss of earning capacity.
 
            
 
                 Claimant's education is quite good and tends to reduce 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            his loss of earning capacity.  Even though claimant quit 
 
            high school twice, once in the 10th grade and once again in 
 
            the 11th grade, he nevertheless obtained his high school 
 
            education equivalency certificate (GED) at the Des Moines 
 
            Area Community College in the following year after high 
 
            school (Trans. pp. 16, 17, & 72).  Claimant also obtained an 
 
            associate degree through studies at Central Texas College 
 
            while he was in the military service (Trans., pp. 15 & 
 
            73-75).  Claimant further took correspondence courses after 
 
            that which enabled him to enter the army flight training 
 
            program and become a helicopter pilot in the grade of chief 
 
            warrant officer two.  Claimant testified that he was capable 
 
            of getting B average grades in school (Trans. p. 15) but 
 
            that it was still difficult for him to enter flight training 
 
            without retaking several of the military tests that were 
 
            required (Trans., p. 79). 
 
            
 
                 Furthermore the normal period to learn the tire 
 
            building trade is 90 days but claimant met all performance 
 
            standards at the end of 30 days (Trans., pp. 25, 87 & 88).  
 
            Thus, claimant is very capable of acquiring new skills 
 
            either academically or through on-the-job training based 
 
            upon his previously demonstrated performance.  
 
            
 
                 Claimant's past employments include working for Sambos' 
 
            restaurants from the time he was in high school at age 14 
 
            for a period of seven to ten years even while he was in the 
 
            military service.  With Sambos he began as a dishwasher, 
 
            became a cook, and advanced to waiter, host and assistant 
 
            manager.  He was designated as a trainer of new employees at 
 
            new restaurants because of the speed with which he could 
 
            teach new employees to cook.  Thus, claimant probably has 
 
            some transferable skills in training and managing other 
 
            persons which would not be affected by the disability in his 
 
            arms caused by these injuries.  
 
            
 
                 Prior to Sambos claimant worked as a truck driver and 
 
            fork lift driver.  Claimant testified that he was foreclosed 
 
            from driving a fork lift by Dr. Blessman and he did not feel 
 
            that he could do it because it requires repetitive use of 
 
            his hands and arms constantly turning the steering wheel.  
 
            
 
                 Claimant's previous military skills of helicopter 
 
            mechanic, helicopter pilot, and helicopter test pilot would 
 
            probably require refresher courses in order to perform these 
 
            occupations.  Furthermore the demand for these occupations 
 
            as a civilian in Iowa would be somewhat limited.  Claimant 
 
            testified that he could not pass the physical examination to 
 
            be a pilot now.  
 
            
 
                 Claimant did work as a manager and mechanic at a 
 
            salvage yard.  It is doubtful if he could employ the 
 
            mechanic skills due to the condition of his arms and the 
 
            prohibition against repetitive use of his arms and hands but 
 
            his management experience would be transferable (Ex. 1, p. 
 
            1).  
 
            
 
                 Claimant contended that he was fired by employer based 
 
            on a charge of theft of time.  Claimant testified that he 
 
            filed a grievance and an agreement was worked out where he 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            would drop the grievance if employer would put on his record 
 
            that he voluntary quit (Trans. pp. 60, 61 & 99).  Claimant 
 
            further contended that he missed work to have his teeth 
 
            worked on and a dispute arose with one of his supervisors 
 
            who told claimant that he was going to get him fired.  
 
            
 
                 Claimant related that he was terminated approximately 
 
            two weeks after the supervisor told him that he would get 
 
            him terminated (Trans., p. 111).  Claimant testified that he 
 
            was told by employer that he was terminated for cause 
 
            because he was operating a machine that was suppose to be 
 
            down (Trans., pp. 99 & 103).  Claimant said it was a 
 
            misunderstanding because he thought that one of the 
 
            supervisors had turned the machine on so that it could be 
 
            operated.  Claimant further contended that this accusation 
 
            was not asserted until some three weeks after the incident.  
 
            Claimant further testified that when he applied for 
 
            unemployment compensation he received it over the resistance 
 
            of the employer because the hearing officer ruled that 
 
            claimant was terminated for an unjust cause (Trans., p. 
 
            102).  
 
            
 
                 Ables, a union representative for nine years, and an 
 
            employee of employer for 26 years, testified that claimant's 
 
            termination was connected with his physical capabilities and 
 
            limitations because a friend told Ables that claimant's  
 
            supervisor said "I want a tire builder that's a hundred 
 
            percent." (Trans., p. 130).
 
            
 
                 It is determined that claimant did not prove that he 
 
            was terminated because of his physical limitations due to 
 
            these injuries.  The testimony of claimant and Ables does 
 
            raise a strong possibility, however, that claimant's 
 
            physical limitations due to these injuries may be connected 
 
            with his termination.  The testimony of claimant and Ables 
 
            was not controverted, contradicted, rebutted or refuted.  
 
            Furthermore, it is consistent with Dr. Blessman's frequently 
 
            stated opinion that claimant should be permanently 
 
            disqualified from tire building.
 
            
 
                 Irrespective of whether claimant was fired or 
 
            voluntarily quit his job or how the termination occurred, 
 
            claimant is now placed in the competitive employment market 
 
            with seriously disabling bilateral injuries and his 
 
            beginning rate of pay is most likely to be far less than the 
 
            $25 per hour that he was earning at the time of this second 
 
            injury.
 
            
 
                 Claimant testified that he had no prior problems with 
 
            his right or left arm prior to this employment and there is 
 
            no medical evidence to disprove his testimony.  On the 
 
            contrary, a pre-employment medical evaluation on September 
 
            16, 1987, indicated claimant had no prior problems with his 
 
            hands or arms and that he was fully capable of performing 
 
            the job of tire builder (Ex. 2, pp. 6 & 7).  Thus, 
 
            claimant's employment with employer seems to be the primary 
 
            cause of the injury and disability to both his left and 
 
            right arm.  
 
            
 
                 Claimant testified that when a tire builder begins to 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            have problems with his arms the first thing employer talks 
 
            about is disqualifying the person as a tire builder (Trans., 
 
            p. 30).  At the same time claimant admitted that after he 
 
            returned to tire building in February of 1991 and his 
 
            incentive rate decreased because of the trouble he was 
 
            having with his arms that he and his wife agreed that he 
 
            should slow down in order for him to just keep employed in a 
 
            tire building position (Trans., p. 97).  
 
            
 
                 Claimant testified that when he returned to tire 
 
            building in February of 1991, he really tried hard to bring 
 
            his incentive pay rate up to $24 or $25 per hour but his 
 
            arms were killing him and could not do it so he had to bring 
 
            it down to where he could work and still not have the pain 
 
            in his arms (Trans., p. 98).  
 
            
 
                 Claimant testified that according to his recollection 
 
            he thought he was earning approximately $15 per hour when 
 
            his employment was terminated in November of 1991 (Trans., 
 
            p. 70). This would constitute a $10 an hour loss from his 
 
            highest incentive rate of $25 per hour (Trans., p. 71).  
 
            This calculates out to a 40 percent loss of earnings.
 
            
 
                 Claimant testified that he has searched for employment 
 
            since his termination in November of 1991, but had been 
 
            unable to find any work as of the date of the hearing on 
 
            October 6, 1992 (Trans., p. 65).  Claimant testified that he 
 
            had applied for approximately 150 jobs.  Claimant contended 
 
            that when he honestly answered the question on the 
 
            employment applications and disclosed his prior injuries and 
 
            surgeries it generated a lot of questions by the prospective 
 
            employers about the full extent of his problems (Trans., p. 
 
            67).  Claimant testified that from his point of view his 
 
            major loss was the loss of power in his hands and the loss 
 
            of grip with his hands.  Unless he absolutely concentrates 
 
            on it he can lose his grip (Trans., P. 68).  
 
            
 
                 Claimant's inability to find work in the year since he 
 
            was terminated is uncharacteristic when compared with his 
 
            prior employment record.  Claimant testified that he was 
 
            seldom if ever unemployed prior to this.  In addition he 
 
            worked at Sambos and held other jobs at the same time for a 
 
            number of years.  When claimant interviewed for this 
 
            employer one of the evaluators stated that he would be a 
 
            good piece worker or tire builder because claimant was an 
 
            over achiever and he likes a challenge (Ex. 1, p. 3).  
 
            Another evaluation is unreadable (Ex. 1, p. 4).  A third 
 
            evaluator believed that claimant would be an excellent 
 
            employee and a good asset to the company based upon his 
 
            previous work record (Ex. 1, p. 5).  
 
            
 
                 Claimant testified that the company offered time and a 
 
            half for overtime and double time on Sunday and claimant 
 
            frequently volunteered to work overtime (Trans., p. 109 & 
 
            110).
 
            
 
                 Neither employer nor the Second Injury Fund of Iowa has 
 
            offered claimant any vocational rehabilitation assistance 
 
            nor has claimant sought any vocational rehabilitation 
 
            assistance of his own volition (Trans., p. 105).  Claimant 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            testified that he would be willing to participate in any 
 
            training necessary to perform any job which he thought he 
 
            could do.  Since claimant is foreclosed from most of his 
 
            prior employments, save perhaps management and training 
 
            positions, claimant may well have to undergo either academic 
 
            or on-the-job training in order to secure new employment.  
 
            Academic training would be expensive and claimant testified 
 
            that he did not have the money and that is the reason why he 
 
            did not go back to school (Trans., p. 105).  
 
            
 
                 Claimant contended that he is entitled to a 50 percent 
 
            industrial disability award.  Defendants contended that 
 
            claimant's award should be limited to his loss of earnings 
 
            as established by Exhibit B.  Claimant's loss of earnings 
 
            have been calculated by several different methods in the 
 
            body of the decision and this award considers claimant's 
 
            lowest conceivable estimated loss of earnings.  It is 
 
            doubtful that claimant could have continued to earn $25 per 
 
            hour at the incentive rate for the balance of his working 
 
            lifetime.
 
            
 
                 Claimant's right arm injury was cubital tunnel, carpal 
 
            tunnel and ulnar tunnel which required multiple surgeries.  
 
            Three incisions were made at the time of the first surgery 
 
            on May 4, 1988.  Another incision at the time of the second 
 
            right arm surgery was made on November 14, 1988.  The repair 
 
            and decompression of the left arm carpal tunnel and cubital 
 
            tunnel required two incisions.  Employer's own company 
 
            physician stated that claimant was foreclosed from tire 
 
            building.  Claimant had worked his way up to an incentive 
 
            pay rate of $25 per hour at the time that this physician 
 
            disqualified claimant from tire building.  
 
            
 
                 When claimant was transferred to the tire layer job in 
 
            1990 (Trans., p. 57), he only earned about $10 per hour 
 
            which would constitute a 60 percent loss of earnings.  Later 
 
            in 1990, he was earning approximately $15 per hour and this 
 
            would constitute a 40 percent loss of earnings.  When 
 
            claimant returned to tire building he was able to get his 
 
            incentive pay rate back up to $18 per hour by July of 1991 
 
            and this would constitute a 28 percent loss of earnings, 
 
            however, the evidence supports the proposition that claimant 
 
            would not be able to continue in tire building for the 
 
            indefinite future.  According to Exhibit A, claimant was 
 
            earning approximately $18 per hour in July of 1991.  There 
 
            is no written earnings record after July of 1991 but 
 
            claimant testified he was only earning $15 per hour in 
 
            November of 1991 when he was  terminated.  If claimant were 
 
            fortunate enough to find employment at $12 per hour, which 
 
            is not too likely, he would still have a 52 percent loss of 
 
            earnings from his highest achieved incentive pay rate.
 
            
 
                 Claimant's award is mitigated somewhat because at his 
 
            young age and because retraining is feasible Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).  
 
            
 
                 Claimant is a very intelligent and capable young man 
 
            who can set goals and achieve them.  He has the equivalent 
 
            of a high school diploma and he has an associate degree from 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            a college and subsequent courses which enabled him to 
 
            complete flight training and become an army helicopter pilot 
 
            with the rank of a chief warrant two (C.W.O. II).  
 
            Furthermore, claimant's inability to find work after his 
 
            termination with employer is uncharacteristic with his 
 
            previous stable employment and high motivation to earn 
 
            money, which impugns to some degree his motivation to 
 
            seriously find new employment.
 
            
 
                 Wherefore, based upon (1) all of the evidence in this 
 
            case (2) the evidence discussed above (3) and all of the 
 
            factors used to determine industrial disability Christensen 
 
            v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. Dec. March 26, 1985); 
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
            February 28, 1985) (4) and applying agency expertise [Iowa 
 
            Administrative Act section 17A. (14)(5)],  it is determined 
 
            that claimant has sustained a 35 percent industrial 
 
            disability to the body as whole.
 
            
 
                 A 35 percent industrial disability entitles claimant to 
 
            175 weeks of permanent partial disability benefits.  From 
 
            this is subtracted the value of the right arm scheduled 
 
            member injury which is determined to be an 8.25 percent 
 
            permanent impairment of the right arm valued at 20.625 weeks 
 
            and the value of the 8.5 percent permanent impairment to the 
 
            left arm which is valued at 21.25 weeks.  The first and 
 
            second scheduled member injuries for which the employer is 
 
            liable total 41.875 weeks.  Therefore claimant's overall 
 
            industrial disability of 175 weeks is reduced by the 
 
            scheduled member injuries of 41.875 weeks and claimant is 
 
            entitled to the remaining 133.125 weeks of permanent partial 
 
            disability benefits which is the liability of the Second 
 
            Injury Fund of Iowa.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant has met the threshold requirements for 
 
            liability against the Second Injury Fund of Iowa, Iowa Code 
 
            section 85.64.
 
            
 
                 That claimant has sustained a 35 percent industrial 
 
            disability to the body as a whole, Iowa Code section 
 
            85.34(2)(u).
 
            
 
                 That the scheduled member value of the right and left 
 
            arm separate injuries totals 41.875 weeks Iowa Code section 
 
            85.34(2)(m).
 
            
 
                 That the remaining liability of the Second Injury Fund 
 
            of Iowa is 133.125 weeks, Iowa Code section 85.64.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 That defendant Second Injury Fund of Iowa pay to 
 
            claimant one hundred thirty-three point one two five 
 
            (133.125) weeks of permanent partial disability benefits at 
 
            the stipulated rate of five hundred sixty-six and 81/100 
 
            dollars ($566.81) per week in the total amount of 
 
            seventy-five thousand four hundred fifty-six and 58/100 
 
            dollars ($75,456.58) commencing on the date of this 
 
            decision.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30 as of the date of this decision.  Second Injury Fund 
 
            v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                 That the costs of this action including the cost of the 
 
            attendance of the court reporter at hearing and the 
 
            transcript of the hearing are charged to the defendant 
 
            Second Injury Fund of Iowa pursuant to Iowa Code section 
 
            86.19(1) and 86.40 and rule 343 IAC 4.33.
 
            
 
                 That Defendant Second Injury Fund of Iowa file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Ia  50311-1540
 
             
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            2700 Grand Ave, Ste. 111
 
            Des Moines, IA  50312
 
            
 
            Mr. Stephen Moline
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hover State Office Bldg.
 
            Des Moines, IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                          53200
 
                                          Filed October 22, 1992
 
                                          Walter R. McManus, Jr.
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            NORMAN KEDDIE, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No 930533
 
            FIRESTONE TIRE & RUBBER, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            53200
 
            
 
            Claimant established the liability of the Second Injury Fund 
 
            of Iowa.  Claimant awarded benefits for overall industrial 
 
            disability less the value of the separate two scheduled 
 
            member injuries.
 
            The decision is non-precedential as a legal matter.
 
            It is an interesting factual situation.