BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JAMES HAWKS,     
 
                     
 
              Claimant,                          File No. 932117
 
                     
 
         vs.                                       A P P E A L
 
                     
 
         SHELLER-GLOBE CORPORATION,              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 
 
         March 26, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         Although Dr. Austin could not predict how long claimant's 
 
         chemical or environmental sensitivity would persist, he clearly 
 
         indicated that claimant's reactive airways disease was permanent.  
 
         Claimant might be asymptomatic at a point in time but that does 
 
         not mean that the reactive airways disease is gone.  It was Dr. 
 
         Austin's opinion that the rotocast powder or something physically 
 
         in the air when the rotocast machine is working that caused 
 
         claimant's reactive airways disease.  (Exhibit 20, pages 14, 17, 
 
         21 and 26)
 
         
 
              That defendant 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 July, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1087
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         
 
 
            
 
 
 
            
 
 
 
 
 
                                                1108.30; 1803
 
                                                Filed July 15, 1993
 
                                                Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JAMES HAWKS,     
 
                        
 
                 Claimant,                         File No. 932117
 
                        
 
            vs.                                      A P P E A L
 
                        
 
            SHELLER-GLOBE CORPORATION,              D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
          
 
            1108.30
 
            Claimant's reactive airway disease found to arise out of and 
 
            in the course of employment.  Residual of sensitivity on 
 
            reexposure to airway irritants found causally related to 
 
            original injury.
 
            
 
            1803
 
            Forty-seven-year-old claimant, with no impairment rating; 
 
            with management and entrepreneurial skills; who is currently 
 
            self-employed in his own business; who was able to continue 
 
            working for the employer, albeit in a different job  not 
 
            involving irritant exposure, until the plant closed; and, 
 
            whose only restriction is to avoid exposure to any airway 
 
            irritants to which he is sensitive, was awarded five percent 
 
            permanent partial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES HAWKS,                  :
 
                                          :
 
                 Claimant,                :         File No. 932117
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, James Hawks, against his self-insured employer, 
 
            Sheller-Globe Corporation, to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an injury 
 
            allegedly sustained on February 20, 1989.  This matter came 
 
            on for hearing before the undersigned deputy industrial 
 
            commissioner at Burlington, Iowa, on February 14, 1992.  A 
 
            first report of injury has been filed.
 
            
 
                 The record consists of the testimony of claimant as 
 
            well as claimant's exhibits 1 through 11 and 13 and 
 
            defendant's exhibits A and B.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulation of the parties, 
 
            the parties have stipulated to the following:  that claimant 
 
            was off work from July 25, 1989, through July 28, 1989, and 
 
            from January 2, 1990, through January 6, 1990; that the 
 
            commencement date for any permanent partial disability 
 
            benefits due claimant is January 7, 1990; that charges for 
 
            medical treatment for claimant were fair and reasonable 
 
            charges; that claimant was single, entitled to one exemption 
 
            and had a gross weekly wage of $430.00 at the time of the 
 
            alleged injury entitling claimant to weekly compensation at 
 
            a rate of $255.22, as reflected in the applicable rate 
 
            table.  It is noted this figure is less than the $257.01 
 
            rate the parties suggested.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            Issues remaining to be decided are:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of claimant's employment;
 
            
 
                 2.  Whether a causal relationship exists between 
 
            claimant's alleged injury and claimed disability;
 
            
 
                 3.  Whether claimant is entitled to benefits and the 
 
            nature and extent of any benefit entitlement; and,
 
            
 
                 4.  Whether claimant is entitled to payment of certain 
 
            medical costs as authorized by defendant and as causally 
 
            related to claimant's work injury.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant is a 47-year-old gentleman who has completed 
 
            high school and has had technical school training in 
 
            computer repair.  Claimant has also taken a locksmith repair 
 
            course.
 
            
 
                 Claimant worked for Sheller-Globe from December 5, 
 
            1988, through July 1991 when the automotive technologies 
 
            portion of the Sheller-Globe facility closed.  Claimant is 
 
            currently self-employed in his own print shop.  Claimant 
 
            began that business approximately a year and one-half ago, 
 
            that is, prior to the closing of the automotive technologies 
 
            division.  Claimant's color photocopy business reproduces 
 
            color copies, applies custom imprinting to fabrics, does 
 
            desk top publishing and computer graphics, makes keys and 
 
            offers lock repair.  Claimant is not exposed to chemicals to 
 
            which he is reactive in that business.
 
            
 
                 Claimant had an extensive work history prior to 
 
            beginning work with Sheller-Globe.  Claimant has been a 
 
            factory worker, a life insurance seller, an escrow 
 
            collection department manager, a restaurant manager, a 
 
            restaurant franchise owner, a home repairer, a computer 
 
            portrait business owner, and an emergency medical technician 
 
            with an ambulance service.
 
            
 
                 Claimant is a nonsmoker and had no history of bronchial 
 
            problems when he began work with Sheller-Globe on December 
 
            5, 1988.  Claimant initially glued strips for the employer 
 
            and felt no immediate ill effects from the glue.  As part of 
 
            the process, claimant dipped the ends of strips in cans 
 
            containing Toluene, a lubricant.  On February 20, 1989, 
 
            while performing that job, claimant had a violent coughing 
 
            spell.  Claimant saw Ronald Kinateder, M.D., on February 21, 
 
            1989.  Dr. Kinateder advised that claimant be restricted 
 
            from working in areas containing Toluene.  Claimant was 
 
            returned to work areas containing Toluene and given a dust 
 
            mask.  A dusk mask is effective against airborne particles, 
 
            but is ineffective in keeping out fumes.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Kinateder subsequently referred claimant to Milton 
 
            F. Austin, M.D., an internist.  Per Dr. Austin, claimant was 
 
            admitted to Keokuk hospital on July 26, 1989, with acute 
 
            gastrointestinal bleeding due to a one centimeter gastric 
 
            ulcer and for chronic cough.  Claimant continued to treat 
 
            with Dr. Austin subsequent to his hospitalization and, on 
 
            January 2, 1990, claimant was again hospitalized after 
 
            claimant had started coughing while painting with latex 
 
            paint at home.  Dr. Austin has diagnosed claimant's 
 
            condition as obstructive airway disease or occupational 
 
            asthma.  Sometime subsequent to the receipt of Dr. 
 
            Kinateder's restrictions, claimant was moved to the "padded 
 
            side" or automotive technologies division of the plant.  
 
            Claimant was not there exposed to Toluene, but reported that 
 
            his coughing was triggered again in July 1989 by something 
 
            in the rotocast department.
 
            
 
                 Claimant self-reported a loss of smell.  Medical 
 
            reports do not confirm this and causal relationship between 
 
            that alleged condition and claimant's employment is not 
 
            found.  Claimant was making $12.00 per hour when the 
 
            automotive technologies division closed.  Claimant expressed 
 
            a fear of returning to factory work in that he fears 
 
            chemical exposure in such environments would be problematic 
 
            in ways that exposure was not problematic prior to his 
 
            Sheller-Globe employment.  He was offered a job as a welding 
 
            apprentice which he did not accept as he felt the job would 
 
            expose him to harmful fumes.  Claimant reported he did not 
 
            apply for work in a local corn processing plant for a 
 
            similar reason.  Claimant's self-employment also likely 
 
            influenced his decision not to seek other outside employment 
 
            after his layoff, however.
 
            
 
                 Claimant first saw Dr. Austin on June 13, 1989, with 
 
            complaints of fullness in the right chest with decreased 
 
            lung capacity and increased shortness of breath with 
 
            activity and complaints of tender raised nodular lesions on 
 
            the legs and face occurring with the chest pain.  On June 
 
            20, 1989, Dr. Austin opined that claimant's chest discomfort 
 
            was the result of obstructive lung disease and bronchial 
 
            spasm, that is, mild asthma triggered by claimant's new job 
 
            of working with powder containing a plastic resin.  Dr. 
 
            Austin reported that claimant experienced more right side 
 
            difficulty in that claimant had had a prior right lung 
 
            resection as a child.
 
            
 
                 On June 27, 1989, Dr. Austin opined that exposure to 
 
            chemicals contained in the rotocast powder would continue to 
 
            exacerbate claimant's asthma.  Pulmonary function tests 
 
            completed at the Keokuk Area Hospital on June 14, 1989, were 
 
            compatible with minimal small airway obstructive disease 
 
            with some degree of reversibility.  Diffusion capacity was 
 
            mildly diminished, but the tests were otherwise relatively 
 
            normal.
 
            
 
                 Dr. Austin's notes reflect that a bronchoscopy on 
 
            August 11, 1989, confirmed that claimant had irritated 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            tracheobronchial mucosa consistent with occupational asthma.  
 
            Notes report that claimant, on August 16, 1989, was working 
 
            with rotocast powder and fumes and again was experiencing 
 
            severe coughing and asthma.  A note of September 26, 1989, 
 
            indicates claimant's asthma subsided after claimant was 
 
            transferred from work involving rotocast powder.
 
            
 
                 Dr. Austin has opined that claimant's problems resulted 
 
            from exposure to rotocast powder or "something physically in 
 
            the air" when claimant worked with rotocast powder.  He 
 
            further opined that it was therefore extremely likely that 
 
            any inhaled agent which produces coughing or a subjective 
 
            sense of irritation for claimant would provoke bronchial 
 
            spasm in claimant and that claimant's reactive airway 
 
            disease likely will persist in that reexposure to the 
 
            chemical compounds that initiated it or exposure to other 
 
            environments that irritate his airways will probably trigger 
 
            his reactive airway disease.  Dr. Austin "assumed" that, if 
 
            adequate testing were done, claimant would be found to have 
 
            some degree of impairment now given his degree of physical 
 
            inflammation [related to his reactive airway disease].
 
            
 
                 Thomas E. Hakes, M.D., an internist, evaluated claimant 
 
            on consultation during a July 1989 hospitalization.  Dr. 
 
            Hakes opined that claimant's problem related to simple 
 
            irritation of the upper airway and may have been triggered 
 
            by dust at work.  He further stated that the problem was now 
 
            feeding upon itself in a vicious cycle.
 
            
 
                 Leonard D. Grayson, M.D., evaluated claimant through 
 
            pulmonary function studies completed before, immediately 
 
            subsequent to and then 20 minutes subsequent to inhalation 
 
            of Toluene and heated rotocast powder.  Claimant's FEV1 
 
            dropped after the Toluene inhalation, but recovered within 
 
            20 minutes.  Claimant's FEV1 was not affected by rotocast 
 
            powder inhalation.  Claimant's FEF25-72 showed a definite 
 
            drop after Toluene inhalation with recovery 20 minutes later 
 
            and again no effect from rotocast powder.  Dr. Grayson 
 
            opined that, given such findings, the rotocast powder was 
 
            not playing a part in claimant's problems, while inhalation 
 
            of Toluene or similar fumes would likely cause claimant 
 
            problems.
 
            
 
                 Material safety data sheets indicate that inhalation of 
 
            Toluene at high vapor concentrations can irritate the eyes 
 
            and respiratory tract.  Toluene is a negligible hazard at 
 
            ambient temperatures, but mechanical dilution and 
 
            ventilation is recommended where the product is used in a 
 
            confined space; is heated above ambient temperatures; or is 
 
            agitated.  It is expressly found that dipping a strip of 
 
            material into Toluene would agitate or stir up the Toluene.
 
            
 
                 The safety data sheet on rotocast vinyl powder 
 
            recommends that self-containing breathing apparatus and full 
 
            protection clothing be used when working with the powder.  
 
            It states that exposure to the dust may cause irritation of 
 
            the skin and mucous membranes although, under normal usage, 
 
            it is suitable for nuisance dust (apparently with 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            respiratory protection).
 
            
 
                 It is expressly found that claimant did develop 
 
          Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 For reasons stated in the above Findings of Fact, 
 
            claimant has carried his burden of proving that he suffered 
 
            an injury by way of development of obstructive airway 
 
            disease or occupational asthma subsequent to his exposures 
 
            to Toluene and rotocast powder while working for the 
 
            employer.
 
            
 
                 Our next concern is whether claimant has shown a causal 
 
            relationship between the injury and claimed disability.
 
            
 
                 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant has clearly established a causal relationship 
 
            between the injury and claimed temporary disability related 
 
            to his two hospitalizations.  The medical records clearly 
 
            establish that claimant was treating for obstructive lung 
 
            disease up to and including the time of his hospitalization 
 
            in July 1989.  That claimant's July 1989 hospitalization 
 
            also related to a gastric ulcer does not diminish its 
 
            relationship to the chronic cough which Dr. Hakes related to 
 
            upper airway disease.  Claimant is entitled to healing 
 
            period benefits for the time off on account of that 
 
            hospitalization, that is, July 25, 1989, through July 28, 
 
            1989.  Likewise, claimant has established the requisite 
 
            causal connection between his work injury and claimed 
 
            disability related to his second hospitalization beginning 
 
            January 2, 1990.  While claimant's reaction then started 
 
            after coughing while working with latex paint at home, the 
 
            reaction to the latex paint fumes was consistent with the 
 
            pattern of reaction which Dr. Austin opines the initial work 
 
            exposure created.  Additionally, it is inconsistent with any 
 
            known medical history of claimant prior to the work 
 
            exposure.  Such places that reaction within the sequela of 
 
            events flowing from the work injury.  Claimant is entitled 
 
            to healing period benefits from January 2, 1990, through 
 
            January 6, 1990.
 
            
 
                 A more difficult question exists as to whether claimant 
 
            has shown a causal relationship between his injury and 
 
            claimed permanent disability.  Dr. Austin, however, has 
 
            opined that it is likely that claimant's reactive airway 
 
            disease will persist in that reexposure to the chemical 
 
            compounds that initiated it will likely trigger further lung 
 
            disease.  Dr. Hakes has characterized claimant's problem as 
 
            part of a vicious cycle which may have been set off by 
 
            claimant's work exposure.  Claimant's medical history is 
 
            consistent with any permanent problems having their basis in 
 
            his work exposure.  Given such, claimant has established the 
 
            requisite causal relationship between his work injury and 
 
            claimed permanent disability with such claimed permanent 
 
            disability found to be likely continued problems with 
 
            reactive airway disease should claimant be reexposed to the 
 
            chemical compounds that initiated the disease or other 
 
            airway irritants to which claimant is now sensitized.
 
            
 
                 It is expressly found that claimant has not established 
 
            any causal relationship between his work injury and his 
 
            gastric ulcer.  The only evidence relative to any such 
 
            relationship is Dr. Austin's testimony that claimant was 
 
            under stress at work at the time he developed the gastric 
 
            ulcer.  Such, without more, is found to be insufficient to 
 
            establish a causal relationship between claimant's work 
 
            injury and his subsequent ulcer.
 
            
 
                 We consider the question of whether claimant is 
 
            entitled to payment of medical costs in evidence.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Section 85.27 provides that defendant shall pay 
 
            reasonable and necessary medical expenses related to 
 
            claimant's work injury.  Defendant initially argues that 
 
            defendant did not authorize claimant's medical care or 
 
            expenses and that the lack of authorization bars any 
 
            recovery for those expenses.  Defendant has denied liability 
 
            for claimant's injury.  Defendant, in denying liability, 
 
            lost the right to control claimant's care and therefore the 
 
            nonauthorization argument is not viable.  Claimant is 
 
            clearly entitled to payment of his medical expenses related 
 
            to treatment of his obstructive airway disease.  He is 
 
            clearly not entitled to payment of those medical expenses 
 
            related to treatment of his gastric ulcer.  Unfortunately, 
 
            claimant has not provided an itemized list of medical 
 
            expenses.  Therefore, it is impossible to order payment as 
 
            to express items listed as medical expenses.  Defendant is 
 
            liable for those expenses directly related to claimant's 
 
            obstructive airway disease, however.
 
            
 
                 We reach the question of claimant's entitlement to 
 
            permanent partial disability benefits.
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 As noted, claimant has been given no impairment rating.  
 
            His only limitation is that he should avoid reexposure to 
 
            the chemicals which initially caused his problems and other 
 
            airway irritants which cause him problems.  These 
 
            restrictions do not appear to cause claimant significant 
 
            problems in daily living, although they might well impact on 
 
            the activities in which claimant could engage in an 
 
            industrial setting.  Fortunately, claimant appears highly 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            qualified for a variety of positions outside of an 
 
            industrial setting.  Likewise, he appears to have some 
 
            capacity to work within industrial settings provided he is 
 
            not exposed to likely airway irritants.  That capacity was 
 
            demonstrated by his ability to continue working at 
 
            Sheller-Globe, albeit in a different plant division, after 
 
            his exposure until that division's closing.  There is little 
 
            testimony in the record as to claimant's earnings at the 
 
            time of his transfer to the padded division as opposed to 
 
            his earnings at the time of the plant closure.  Such would 
 
            be the best evidence of any actual loss of earnings related 
 
            to claimant's exposure and his restrictions on industrial 
 
            areas where he can work.  Without such, it is difficult to 
 
            attribute any actual loss of earnings to claimant's chemical 
 
            exposure in that he was able to remain employed with the 
 
            employer subsequent to the development of his work-related 
 
            condition.  Claimant appears motivated to work and as noted 
 
            has considerable experience which will likely permit him to 
 
            work in a variety of settings which do not involve the type 
 
            of chemical exposure to which he is now sensitized.  Indeed, 
 
            claimant apparently is able to work without undue problems 
 
            in his own business and that business appears consistent 
 
            with claimant's overall experience, education and 
 
            entrepreneurial skills as demonstrated by his work history 
 
            prior to being employed by Sheller-Globe.  When all of the 
 
            above is considered, it is determined that claimant has 
 
            sustained a loss of earning capacity of five percent.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant pay claimant permanent partial disability 
 
            benefits for twenty-five (25) weeks at the rate of two 
 
            hundred fifty-five and 22/100 dollars ($255.22) per week 
 
            with payments to commence on January 7, 1990.
 
            
 
                 Defendant pay claimant healing period benefits at the 
 
            rate of two hundred fifty-five and 22/100 dollars ($255.22) 
 
            per week from July 25, 1989, through July 28, 1989, and from 
 
            January 2, 1990, through January 6, 1990.
 
            
 
                 Defendant pay accrued amounts in a lump sum.
 
            
 
                 Defendant pay interest pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Defendant pay claimant claimant's medical expenses 
 
            which relate to his work-related obstructive airway disease.
 
            
 
                 Defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendant file claim activity reports as requested by 
 
            the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.30; 1803
 
                                               Filed March 26, 1992
 
                                               HELENJEAN M. WALLESER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES HAWKS,                  :
 
                                          :
 
                 Claimant,                :         File No. 932117
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            SHELLER-GLOBE CORPORATION,    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1108.30
 
            Claimant's reactive airway disease found to arise out of and 
 
            in the course of employment.  Residual of sensitivity on 
 
            reexposure to airway irritants found causally related to 
 
            original injury.
 
            
 
            1803
 
            Forty-seven-year-old claimant, with no impairment rating; 
 
            with management and entrepreneurial skills; who is currently 
 
            self-employed in his own business; who was able to continue 
 
            working for the employer, albeit in a different job  not 
 
            involving irritant exposure, until the plant closed; and, 
 
            whose only restriction is to avoid exposure to any airway 
 
            irritants to which he is sensitive, was awarded five percent 
 
            permanent partial disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
EILEEN M. OLSON,   
 
                                  File No. 932283
 
     Claimant, 
 
                               A R B I T R A T I O N
 
vs.       
 
                                  D E C I S I O N
 
WHITE CONSOLIDATED 
 
INDUSTRIES, INC.,   
 
          
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
___________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration upon the petition of claimant, 
 
Eileen M. Olson, against her employer, White Consolidated Industries, 
 
Inc., self-insured employer, defendant.  The case was heard on April 
 
13, 1994 at the Webster County courthouse in Fort Dodge, Iowa.  The 
 
record consists of the testimony of claimant.  The record also consists 
 
of the testimony of claimant's spouse, Terry Olson, and the testimony 
 
of Kathy Warren, Workers' Compensation Administrator.  Finally, the 
 
record is comprised of joint exhibits 1-23.
 
 
 
                        STATEMENT OF THE ISSUES
 
 
 
The sole issue for determination is the nature and extent of claimant's 
 
permanent partial disability.
 
 
 
                        STATEMENT OF THE FACTS
 
 
 
The deputy, having heard the testimony and considered all the evidence, 
 
finds:
 
 
 
Claimant is married with four minor children.  She is a 1977 graduate 
 
of Fort Dodge High School.  Claimant commenced her employment with the 
 
present defendant on March 28, 1988.  She was hired as an assembly 
 
worker.  Defendant is engaged in the business of manufacturing washers 
 
and dryers.  Initially, claimant was hired to place a wire onto the 
 
base of the dryer drum.  She was engaged in those duties for the first 
 
six months of her employment.  Claimant described the work as "not 
 
heavy labor."  Next, claimant was assigned to assemble front panels.  
 
The process required repetitive motions of claimant's thumbs and 
 
fingers.  There were repeated motions using fine motor coordination.  
 
 
 
Claimant testified she performed the same process as many as 600 times 
 
per evening shift.  She performed the same job for approximately one 
 
and one half years without any difficulties.  Then the process was 
 
modified and claimant was required to use both her right and left 
 
hands.  Claimant explained, during the hearing, that her right hand 
 
began to ache.  She experienced some night pain.  She described her 
 
pain as "a dull ache."  Claimant visited the plant nurse who dispensed 
 
over-the-counter Advil to claimant.  On October 5, 1989, claimant 
 
sought treatment from Joseph X. Latella, D.O.  His office note provided 
 
the following relative to claimant's condition:
 
   
 
   Pushing motion at work.  The hand and thumb, right side are numb.  
 
Tinel's (+), Phelan's (-), R.O.M. (+).  Works on dryer line and problem 
 
with pain for one month.  Reported this type of injury one months [sic] 
 
ago.  Nalfon, B-6.  Treatment:  1.  Posterior gauntlet,     2.  B-6, T.I.D., 
 
3.  No pushing motion with hand, 4.  No air gun.
 
   
 
   Right hand has pain when gautlet [sic] is taken off.  Now left hand 
 
hurting.  Mid forearm down to wrist.  Was lifting black cards and 
 

 
 
 
 
 
 
 
 
 
pushing some cards onto dryer.  Some pain now.  To give off 2 days and 
 
re-evaluate.  Good R.O.M. but tendonitis, S/S starting.  No Phelen's 
 
[sic] or Tinel's. 
 
(Exhibit 1-1, 1-2)
 
 
 
Dr. Latella continued to provide conservative care.
 
 
 
Claimant was evaluated by Michael J. Kitchell, M.D., after an EMG was 
 
performed.  The neurologist opined:
 
   
 
   On examination Eileen was a healthy appearing, alert woman with a 
 
blood pressure of 122/84.  Her pulse rate was 78.  Her HEENT exam was 
 
unremarkable.  She did have a Tinel's sign over the carpal tunnel areas 
 
bilaterally.  There was no atrophy or deformity in the muscle groups of 
 
the hand, however.
 
   
 
   Her neurologic examination revealed the reflexes to be 2+ in the 
 
upper extremities.  Her motor examination revealed no weakness in the 
 
left arm, but she did have mild weakness of the opponens pollicis and 
 
abductor pollicis brevis muscles in the right hand.  Her sensory 
 
examination revealed a diminution to pin prick in the median nerve 
 
distribution of both hands.  Her vibratory sensation though was normal.
 
   
 
   Her nerve conduction velocity testing showed the left median motor 
 
and left median sensory values to be slightly slowed across the carpal 
 
tunnel.  The terminal latency for the left wrist was 4.2 milliseconds.
 
   
 
   On the right her median sensory and median motor values were 
 
slightly slower than on the left.  The terminal latency was slightly 
 
more delayed also at 4.3 milliseconds.
 
   
 
   My impression, therefore, is that Mrs. Olson does have a mild 
 
bilateral carpal tunnel syndrome, slightly worse on the right than the 
 
left.
 
   
 
   She will be checking back with you for further advice on treatment.  
 
In the meantime, I have recommended that she continue with the wrist 
 
splints and medication.
 
(Ex. 2-1, 2-2)
 
 
 
Claimant underwent a right carpal tunnel release in November of 1989.  
 
Surgery for a median nerve entrapment was also performed.  She 
 
progressed reasonably well following the surgery.  Next, she underwent 
 
a left carpal tunnel release in January of 1990.  She did not recover 
 
as well from the second surgery.  Claimant experienced continued 
 
difficulties with her left wrist.  Approximately two months later, 
 
claimant returned to Dr. Kitchell for a follow-up appointment.  He 
 
opined the following in his report of February 27, 1990:
 
   
 
   On examination Eileen had a blood pressure of 112/70.  Her pulse 
 
rate was 82.  Her extremity examination revealed well-healed carpal 
 
tunnel surgical scars.  There was a Tinel's sign over the left carpal 
 
tunnel region.  Her neurologic examination revealed the reflexes to be 
 
normal and strength was normal in the right hand, but on the left she 
 
had mild weakness of the opponens pollicis and abductor pollicis brevis 
 
muscles.  There was some break-away weakness also in other muscle 
 
groups of the hand.  Her sensory examination revealed a diminution of 
 
pin prick in the median nerve distribution of the left hand.
 
   
 
   Her nerve conduction velocity testing showed the left median motor 
 
nerve conduction to be borderline slowed from wrist to palm.  The 
 
terminal latency was barely within normal limits at 4.1 milliseconds, 
 
whereas 4.2 milliseconds or below is considered the normal range.  Her 
 
left median sensory nerve conduction velocity also showed a slight 
 
slowing from wrist to palm at 40 meters per second, whereas the normal 
 
value is 44 meters per second or above.  I did check 1 centimeter 
 
segments of the nerve in the carpal tunnel with the electrical 
 
stimulator, to see if there was any localizable slowing present.  There 
 
was no definite area of significant delay or slowing.  In comparison to 
 
her study of November, 1989, she had virtually no difference in the 
 
values.
 
   
 
   My impression, therefore, is that Eileen still has a mid left carpal 
 
tunnel syndrome.  It may be worth while waiting a little longer, but 
 
she might want to consider carpal tunnel release surgery again if her 
 
symptoms continue.  As I mentioned above, though, I could not localize 
 

 
 
 
 
 
 
 
 
 
any one area where there was a significant delay in the carpal tunnel 
 
region.
 
(Ex. 3-1, 3-2)
 
 
 
Since claimant had persistent pain in her left hand and wrist, she 
 
sought another medical opinion.  Scott Neff, D.O., opined in the 
 
subsequent opinion:
 
   
 
   Repeat EMG study is still abnormal.
 
   
 
   She has some tenderness in the palm, and she has been told that this 
 
is inflammatory changes.  Her EMG remains abnormal.  Her hand goes to 
 
sleep and has the typical symptoms of carpal tunnel, and the Phalen's 
 
maneuver is positive at about 45 seconds.
 
   
 
   I do not detect a neuroma over the palmocutaneous branch of the 
 
median nerve proximal to the wrist crease, but there is a neuromatous 
 
change in the palm.  Her thenar motor function is normal, and she has 
 
relatively weak grip.
 
   
 
   She has now been approximately 5 months from surgery, and she says 
 
that her other side is functioning beautifully, and was immediately 
 
better after surgery.  The left side is still painful, gives her 
 
difficulty at night, and causes weakness and loss of grip.  The 
 
sensation changes are still present.
 
   
 
   Although I don't know whether she has a recurrent scar, or what is 
 
going on in the wrist, I believe that decompression of the left carpal 
 
tunnel is warranted.
 
(Ex. 5-1)
 
 
 
Dr. Neff then performed another carpal tunnel release on claimant's 
 
left wrist.  This second surgery occurred in June of 1990.  Several 
 
months later, Dr. Neff opined the following with respect to claimant's 
 
return to work:
 
   
 
   This patient was last seen by me on 23 July 1990.
 
   
 
   Revision carpal tunnel surgery puts her at risk of scaring and I 
 
would not recommend that she be exposed to repetitive flexion and 
 
extension of the wrist, vibration or repetitious hand motions.
 
   
 
   Her surgery was performed on 05 June 1990, and we will not know for 
 
several months whether or not her nerve will heel [sic] normally.
 
(Ex. 5-2)
 
 
 
Dr. Neff also restricted claimant from lifting five pounds or less, and 
 
she was to refrain from any overhead work (Ex. 5-3).  Despite the work 
 
restrictions, Dr. Neff opined that claimant did not sustain any 
 
permanent impairment because of her work injury (Ex. 21-1).  In June of 
 
1991, Dr. Neff determined:
 
   
 
   Persistence of restricted activity is warranted and it might be 
 
reasonable to have her go back to a job where she has automated 
 
capability for bag opening.  Repeat surgery is not indicated.
 
   
 
   I appreciate the opportunity of seeing her, and I certainly agree 
 
with nonsteroidal anti-inflammatory medication treatment on a prn 
 
basis.  I would support continued use of the wrist splint as she is 
 
currently doing at work.
 
(Ex. 5-5)
 
 
 
Claimant sought an additional medical opinion from David D. Gerbracht, 
 
M.D., a rheumatologist.  He would not provide an impairment rating for 
 
claimant's condition because:
 
   
 
   I am in no position to render an opinion on permanent work 
 
disability since I only saw her once and she appeared to be handling 
 
the duties that were presently expected of her at work without any 
 
significant discomfort.
 
   
 
   I do not routinely render work disability evaluations, and if you 
 
are interested in such, I would recommend referring her to an 
 
orthopedic surgeon who does so.
 
(Ex. 17-1)
 
 
 
In February of 1993, claimant was again examined and evaluated by Dr. 
 
Kitchell.  The neurologist noted:
 

 
 
 
 
 
 
 
 
 
Her examination today again showed well-healed carpal tunnel 
 
surgical scars bilaterally.  There was a nodule at the right wrist, 
 
just on the radial side of the scar, and she had a Tinel's sign present 
 
over the carpal tunnel area also.  She had restriction of range of 
 
motion of the thumb, including both the opposition, as well as flexion 
 
of the thumb.  She did not have any other restriction of her finger 
 
movements.
 
   
 
   Her examination showed fairly good strength in the right hand except 
 
for opposition of her thumb against the index and middle fingers.  I 
 
felt her abductor pollicis brevis muscle was fairly strong, and there 
 
were no other muscles that were weak with individual testing in the 
 
right hand.  She had normal reflexes again in her upper extremities.
 
   
 
   It remains my impression that Mrs. Olson most likely has a 
 
tendonitis involving the flexors and opposition of the right thumb.  I 
 
did recommend a rheumatologic consultation for her.
 
(Ex. 19-1)
 
 
 
In his deposition, Dr. Kitchell testified regarding claimant's physical 
 
condition:  He opined:
 
   
 
Q.  Did you find anything to support impairment?
 
 
 
A.  I found no neurologic impairment.  I did feel that she had some 
 
restriction of range of motion of the thumb movement which would lead 
 
to what I would consider orthopedic impairment.  I don't feel as though 
 
I'm an expert, though, on determining orthopedic impairment.
 
(Ex. 22-16)
 
 
 
Dr. Kitchell did acknowledge that claimant was experiencing some 
 
difficulties with her right upper extremity (Ex. 22-17).  Dr. Kitchell 
 
did testify that:
 
 
 
A.  I would consider the surgery to have been successful.  I do feel 
 
that she still has some minor symptoms that we could consider to be due 
 
to a carpal tunnel syndrome, but there is no media nerve damage.  The 
 
symptoms that she still has that I believe are related to a carpal 
 
tunnel syndrome are those of a slight numbness if she keeps her hand in 
 
a bent position, but she was wearing the wrist splint, and she found 
 
that helpful at preventing those types of symptoms, so if you ask was 
 
the surgery a complete 100 percent total success, I would not say that 
 
it was a perfect result, but then again, I don't feel that there is any 
 
significant media nerve damage, so even though I might not consider the 
 
result from her surgery to be perfect, there is no impairment due to 
 
the media nerve injury.
 
(Ex. 22-17)
 
 
 
However, Dr. Kitchell attributed claimant's problem to a form of 
 
tendonitis.  Dr. Kitchell testified:
 
 
 
A.  Yes, it was my feeling -- it was my impression that those type of 
 
symptoms -- after I had examined her, it was my feeling that those type 
 
of symptoms were related to musculoskeletal problems of tendonitis.
 
 
 
Q.  A tendonitis?
 
 
 
A.  Yes.
 
 
 
Q.  And what is a tendonitis?
 
 
 
A.  A tendonitis is an inflammation along the tendons that go from the 
 
forearm down into the fingers.
 
 
 
Q.  In other words, the tendonitis would have had --would the 
 
tendonitis have had any relationship to the carpal tunnel syndrome?
 
 
 
A.  Tendonitis and carpal tunnel syndrome are actually two different 
 
diagnoses, but they often occur in patients because they are both 
 
related to activity, so a carpal tunnel syndrome is a nerve injury.  A 
 
tendonitis is due to movement or activity of certain tendons, in her 
 
case, the tendons that go to the thumb.
 
 
 
Q.  And this is an inflammation?
 
 
 
A.  Yes, it may be related to excessive activity, or it may be due, 
 
just as I said, to an idiopathic, unknown type of inflammation that 
 
occurred in that particular area.
 
 
 
Q.  What was your impression as to whether or not this tendonitis 
 

 
 
 
 
 
 
 
 
 
was, in fact, related to the scar from her surgery?
 
 
 
A.  I felt that it was possible that the scar from the surgery has some 
 
indirect relationship to the tendonitis, but I felt it was probably 
 
more likely that the tendonitis was either related to activity or due 
 
to an idiopathic condition where there was inflammation in the sheath 
 
or the condition of the tendons that go to the thumb.
 
(Ex. 22-18 through 22-20)
 
 
 
Claimant desired an independent medical examination from a physician of 
 
her own choosing.  As a consequence, claimant's attorney referred 
 
claimant to David Archer, M.D., a family practitioner who specializes 
 
in disability determinations, using the AMA Guides to the Evaluation of 
 
Permanent Impairment.  Dr. Archer provided written reports and he 
 
testified by deposition.  In his report of July 10, 1992, Dr. Archer 
 
opined:
 
 
 
Her general physical examination was basically within normal limits, 
 
and I will not relate all the details here.  However, her physical exam 
 
is notable for limitation in flexion, aduction [sic] and opposition of 
 
the thumbs on both the right and the left hands, which are important 
 
movements for dexterity.  These limitations in motion appear to be due 
 
to her surgical scars.  The worksheets are enclosed for detail.  
 
 
 
Restriction numbers translate into a 3% upper extremity impairment on 
 
the left, and 5% on the right, in addition to 30% right upper extremity 
 
impairment for minor causalgia and failed surgery for median nerve 
 
entrapment.  This entrapment involves the region of the surgical scar 
 
with referred pain proximally into the muscles of the forearm rather 
 
than distally, and is therefore a distinct finding from tendonous range 
 
of motion limitation.  Her strength is average using a Jaymar 
 
dynamometer.  She gave a good effort and is valid.  No impairment is 
 
assigned for loss of strength.  In addition, there was no vascular 
 
impairment.  Range of motion impairment is static and permanent, but I 
 
would like to point out that no specific treatment for her causalgia 
 
has been undertaken.  It is, therefore, possible that with evaluation 
 
by a neurologist or pain clinic specialist, that some remission of 
 
these symptoms could be obtained.
 
   
 
   I have seen Miss Olson once for the purpose of this evaluation, and 
 
have not provided treatment.  However, I believe some treatment may be 
 
available, and would be happy to discuss treatment with her or make 
 
appropriate referral...
 
(Ex. 23 - Deposition Ex. 1)
 
 
 
Later, Dr. Archer modified his original opinion.  In his report of 
 
October 4, 1993, Dr. Archer corrected his original impairment rating.  
 
He opined:
 
 
 
I appear to have made an arithmatic error and combined upper extremity 
 
impairment of the right wrist with the range of motion numbers, and 
 
incorrectly arrived at a figure of 20% whole person impairment.  
 
Referring back to the upper extremity worksheet on page 13 of the AMA 
 
Guides to Permanent Impairment, the numbers should be as follows:  
 
 
 
right upper extremity impairment for pain in the region of the scar 
 
should be 15%, for loss of range of motion, right upper extremity 
 
impairment 5%, left upper extremity impairment 3%.  This combines to 
 
21% upper extremity impairment; and converts to 13% whole person 
 
impairment, at this time, by table 3, page 16 of the AMA Guides.  As is 
 
evident from her history, Ms. Olson will probably continue to show 
 
improvement in the pain related to the scars involving her wrists.  How 
 
much improvement she will enjoy is not clear at this time, especially 
 
in view of her continued light duty work using her hands.  She will 
 
continue to have 8% upper extremity impairment, or 5% whole person 
 
impairment based on failed carpal tunnel surgery.  The remainder should 
 
be reassessed on a regular, perhaps, annual basis.  I sincerely regret 
 
this error as I try very much to be precise.  I hope that this has not 
 
been an inconvenience.
 
 
 
(Ex. 14-7)
 
 
 
During his testimony, Dr. Archer summarized claimant's condition as 
 

 
 
 
 
 
 
 
 
 
follows:
 
   
 
   A.  Well, I feel like to summarize the whole case, this lady 
 
developed carpal tunnel syndrome due to her work.  She was successfully 
 
released on both sides.
 
   
 
   Q.  Through the surgeries?
 
   
 
   A.  Through the surgeries that were performed.  I think the 
 
surgeries were appropriate and successful.  However, she has residual 
 
symptoms on the right side as a result of the surgical scar on the 
 
right side.  And I honestly don't know if revision of that surgical 
 
scar or injection with local anesthetic or steroid or something like 
 
that or just the passage of time would be enough to get her symptoms 
 
into remission.
 
   
 
   Q.  Are her symptoms now that you see -- saw in her in June and that 
 
you reported as shown in Deposition Exhibit 1, are those common in your 
 
experience with people that have had carpal tunnel syndrome and 
 
surgery?
 
   
 
   A.  I don't think they're common.  I think they're a small, but real 
 
minority though.
 
   
 
   Q.  Okay.
 
   
 
   A.  10 percent, 5 percent, 10 percent.
 
   
 
   Q.  Are her symptoms consistent?
 
   
 
   A.  Yeah.  The symptoms that she's having are really consistent with 
 
any surgical scar, but especially one that's in the area of a joint.  
 
I've seen it with knees, I've seen it with compound fractures that 
 
required open reduction, that sort of thing.
 
   
 
   Q.  Are Ms. Olson's symptoms and the causalgia and lost motion, are 
 
these permanent problems in your opinion?
 
   
 
   A.  The loss of range of motion is probably static and permanent.  
 
The causalgia may or may not be permanent.  I honestly don't know.  
 
Having seen her once, I didn't feel comfortable stating that it was 
 
permanent.  In fact, it's-- I'm not a pain clinic specialist or a 
 
neurologist, but had she been a patient of mine, rather than just a 
 
consultation, I would have referred her to somebody who could inject 
 
that and see if we could get some remission.
 
(Ex. 23-13 through 23-15)
 
 
 
Since August of 1990, claimant has been able to return to work.  In 
 
order to perform her work duties, she often pushes with her arms rather 
 
than with her wrists.  Claimant testified she has weakness in her 
 
hands, and that she has had some difficulties at work.  She has not 
 
lost work time since her August return to work.  Claimant testified 
 
that she has reduced the stress on her hands by eliminating certain 
 
housekeeping tasks from her regular weekly routine.
 
 
 
                       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 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).
 
 
 
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.  Iowa Code 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).
 
 
 
A wrist injury generally is an injury to the hand, not the upper 
 
extremity.  The hand extends to the distal end of the radius and ulna, 
 
including the carpus or wrist.  Elam v. Midland Mfg., II Iowa 
 
Industrial Commissioner Report 141 (App. 1981).  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).
 
 
 
Claimant has sustained a permanent impairment as a result of her 
 
bilateral carpal tunnel syndrome.  The question of the degree of 
 
impairment is at issue.  Both Dr. Kitchell and Dr. Neff discuss minor 
 
impairments but they give permanent work restrictions.  Despite the 
 
permanent work restrictions, neither physician will assess a permanent 
 
impairment rating.  However, both physicians have the reputations for 
 
testifying as "defense doctors."
 
 
 
This deputy is mindful that claimant is permanently restricted.  She 
 
has modified the manner with which she performs her job duties.  At 
 
times, she is required to wear wrist splints in order to complete her 
 
work tasks.  It stands to reason that if there had been no functional 
 
impairment, then work restrictions would be unnecessary.  Likewise, if 
 
there had been no impairment, then wrist splints would be unnecessary.  
 
 
 
Such is not the case.  Dr. Archer has addressed the issue of causalgia 
 
with respect to the present condition.  He testified that he had often 
 
seen problems related to a scar, once surgery had been performed.  Dr. 
 
Archer opined that claimant's pain was referred pain due to the 
 
surgical scarring.  Dr. Archer testified that he had personally 
 
observed such conditions on other occasions.  In this instance, 
 
claimant's problematic condition is adjacent to her surgical scar.
 
 
 
It is the determination of the undersigned that claimant's condition is 
 
related to claimant's work injury.  Prior to her surgeries, claimant 
 
had experienced no difficulties with her hands.  Claimant has had to 
 
modify her job duties.  She cannot use her wrists in the same fashion 
 
as she had used them prior to the work injury.  Often, she must wear 
 
her wrist splints or she must use ice packs to relieve her pain.  The 
 
testimony of Dr. Archer is accorded great weight.  He has had specific 
 
instruction in using the AMA Guides in determining functional 
 
impairment.  He has taken week long courses on using the AMA Guides.  
 
He has assessed numerous patients using the AMA Guides.  Dr. Archer's 
 
description of his calculations is in detail.  His reports are 
 
specific.
 
 
 
In light of the foregoing, it is the determination of the undersigned 
 
that claimant is entitled to a permanent partial disability in the 
 
amount of 13 percent to the body as a whole as provided by section 
 
85.34(2)(a).  She is entitled to 65 weeks of permanent partial 
 
disability benefits at the stipulated rate of $252.90 per week.  Prior 
 
to the hearing defendant paid 25 weeks of benefits to claimant.  She is 
 
entitled to the remaining 40 weeks commencing from January 26, 1991.
 
 
 
                              ORDER
 
 
 
THEREFORE, IT IS ORDERED:
 
 
 
Defendant shall pay unto claimant sixty-five (65) weeks of permanent 
 
partial disability benefits at the stipulated rate of two hundred 
 
fifty-two and 90/l00 dollars ($252.90) per week with the remainder due 
 
and owing from January 26, 1991.
 

 
 
 
 
 
 
 
 
 
 
 
Defendant shall take credit for the twenty-five (25) weeks previously 
 
paid to claimant.
 
 
 
Accrued benefits are to be paid in a lump sum together with statutory 
 
interest at the rate of ten percent (10%) per year.
 
 
 
Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
 
 
 
Defendant shall file a claim activity report as requested by this 
 
division and pursuant to rule 343 IAC 3.1.
 
 
 
 
 
 
 
     Signed and filed this ____ day of January, 1995.       
 
                             ______________________________               
 
                             MICHELLE A. McGOVERN          
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Jerry Schnurr, III
 
Attorney at Law
 
PO Box 952
 
Ft Dodge  IA  50501
 
 
 
Mr. Robert C. Landess
 
Attorney at Law
 
2700 Grand Ave  STE 111
 
Terrace Center
 
Des Moines  IA  50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                5-1800
 
                                Filed January 18, 1995
 
                                MICHELLE A. McGOVERN
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
EILEEN M. OLSON,   
 
                                   File No. 932283
 
     Claimant, 
 
                                 A R B I T R A T I O N
 
vs.       
 
                                    D E C I S I O N
 
WHITE CONSOLIDATED 
 
INDUSTRIES, INC.,   
 
          
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.    
 
___________________________________________________________
 
5-1800
 
 
 
Permanent partial disability was found.
 
 
 
 
         
 
         
 
         
 
         
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         KEITH F. BOWMAN, SR.,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 932701
 
         ALLIED CONSTRUCTION SERVICES,   
 
                                                   A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         ALLIED MUTUAL INSURANCE    
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
                     
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 21, 1993 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         The Second Injury Fund of Iowa argues that it should not be 
 
         responsible for any portion of claimant's disability that is 
 
         caused by his vision loss, his breathing problems, and his back 
 
         problem.
 
         An employer takes an employee subject to any active or dormant 
 
         health impairments, and a work connected injury which more than 
 
         slightly aggravates the condition is considered to be a personal 
 
         injury.  Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 
 
         106 N.W.2d 591 (1960), and cases cited.
 
         An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 
 
         106 N.W.2d 591 (1960).  See also Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 
 
         724, 254 N.W. 35 (1934).
 
         In a permanent partial disability case, where other conditions of 
 
         the body, unrelated to the member injured, contribute to 
 
         claimant's overall disability, an apportionment is not necessary, 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         as only the disability caused by the work injury can be 
 
         compensated.  Denekas v. Aalfs Manufacturing Co., Appeal 
 
         Decision, December 1991.
 
         Where a claimant is found to be permanently and totally disabled, 
 
         apportionment for prior disability is not appropriate.  Wissler 
 
         v. City of Fremont, Iowa, Appeal Decision, February 22, 1993.
 
         Where the work injury causes a partial disability only, prior 
 
         health conditions not related to the work injury but that 
 
         nevertheless affect claimant's overall disability are not the 
 
         responsibility of the employer.  An apportionment of those 
 
         conditions from the award of benefits is not necessary, however, 
 
         as the award of industrial disability will be based solely on the 
 
         effects of the work injury.  Thus, where a claimant suffers an 
 
         injury to the back, and also has a prior disability of the knee, 
 
         the award of industrial disability for the injury to the back 
 
         will be based on that injury alone.  No apportionment for the 
 
         prior knee condition is required, as the award does not 
 
         contemplate any disability resulting from the knee, only 
 
         disability resulting from the injury to the back.
 
         However, clearly, if claimant in the above example had a prior 
 
         disability to the back that was disabling as envisioned by Bearce 
 
         v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991), that prior 
 
         disability would be apportioned out of an award that otherwise 
 
         gauged the entire disability of the back.
 
         Thus, claimant's breathing, back and vision conditions are not 
 
         prior conditions of a body part affected by the work injury, and 
 
         thus the principle of "apportionment" has no application here.  
 
         If claimant's work injury had caused partial disability only, his 
 
         back, vision and breathing conditions would not enter into the 
 
         calculation of his disability and would not form a basis for an 
 
         award of benefits.  Claimant would only be compensated for the 
 
         effects of his work injury, and his industrial disability would 
 
         be based on the disability resulting from the work injury alone 
 
         without regard to disability caused by his preexisting breathing, 
 
         vision and back problems.
 
         However, in this case claimant's condition after his work injury 
 
         is total disability.  When a work injury renders a claimant 
 
         totally disabled, the employer (in this case, the Fund) is 
 
         responsible for that total disability even if some portion of the 
 
         disability is caused by factors not related to the work injury.  
 
         Claimant was not totally disabled prior to the work injury, but 
 
         is totally disabled after the work injury.  When the work injury 
 
         tips the balance to the point of total disability, the employer 
 
         or second injury fund is responsible.
 
         Second Injury Fund of Iowa shall pay the costs of the appeal, 
 
         including the preparation of the hearing transcript.
 
         Signed and filed this ____ day of February, 1994.
 
         
 
         
 
         
 
         
 
                                        ________________________________
 
                                        BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         10101 University Ave., Ste 202
 
         Des Moines, Iowa 50325
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                             1804; 3201; 2601.10
 
                                             Filed February 25, 1994
 
                                             Byron K. Orton
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         KEITH F. BOWMAN, SR.,      
 
                     
 
              Claimant,   
 
                    
 
         vs.         
 
                                                   File No. 932701
 
         ALLIED CONSTRUCTION SERVICES,   
 
                                                     A P P E A L
 
              Employer,   
 
                                                  D E C I S I O N
 
         and         
 
                     
 
         ALLIED MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
                     
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         1804; 3201; 2601.10
 
         Claimant awarded permanent total disability benefits based on an 
 
         injury to the knee.  Claimant's prior loss was to the other knee.  
 
         Claimant also suffered numerous other conditions, such as severe 
 
         vision loss, back problems, breathing problems, etc.
 
         Second Injury Fund's argument that it should be given "credit" 
 
         for claimant's vision, back and respiratory problems was 
 
         rejected.  Under the statute and case law, the Fund is entitled 
 
         to a "credit" for the disability associated with the prior loss 
 
         and the current injury.  Where the second injury results in 
 
         permanent partial disability, the Fund, like an employer, is also 
 
         entitled to have any preexisting disability apportioned out.  
 
         However, where the injury results in total disability, the Fund, 
 
         like an employer, is not entitled to an apportionment.
 
         This was especially true in this case, because the conditions the 
 
         Fund sought to apportion (respiratory, back and vision 
 
         conditions) were not work related and were not prior conditions 
 
         of the lower extremities, and thus would not have been relied 
 
         upon in an award of permanent partial disability.
 
         
 
 
            
 
         
 
                   
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KEITH F. BOWMAN, SR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 932701
 
            ALLIED CONSTRUCTION SERVICES,:
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Keith Bowman seeks benefits under the Iowa 
 
            Workers' Compensation Act upon a petition in arbitration 
 
            against his employer, Allied Construction Services.  Allied 
 
            Construction is insured by defendant Allied Mutual Insurance 
 
            Company.  Claimant also seeks benefits from the Second 
 
            Injury Fund of Iowa.  Mr. Bowman sustained an injury to his 
 
            left knee on October 19, 1989.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa on 
 
            February 8, 1993.  Testimony was received from claimant and 
 
            his wife, Sandra Bowman.  Claimant's exhibits 1-9 were 
 
            received into evidence.
 
            
 
                                      ISSUES
 
            
 
                 All parties stipulate that claimant sustained injury 
 
            arising out of and in the course of employment on October 
 
            19, 1989.  It is also stipulated that the injury caused both 
 
            temporary and permanent disability.  Entitlement to healing 
 
            period benefits is no longer in dispute.  Permanent 
 
            disability is a scheduled member disability to the left leg.  
 
            The parties also have stipulated to a compensation rate of 
 
            $403.66, agree that medical benefits are no longer in 
 
            dispute, and stipulate that defendants paid 22 weeks of 
 
            permanent partial disability benefits at the correct rate.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The extent of permanent disability;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 2.  Whether the Second Injury Fund of Iowa is liable on 
 
            the claim.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Keith Bowman, nearly 56 years of age at hearing, has 
 
            been troubled by a long and complex medical history.
 
            
 
                 Mr. Bowman suffered a closed head injury in a bicycle 
 
            accident at approximately age 14.  He was in a coma for 21 
 
            days, after which he had to re-learn many basic academic 
 
            skills such as writing and spelling.  Mr. Bowman finished 
 
            the tenth grade in a special education program, but 
 
            currently finds himself unable even to handle much of his 
 
            fifth grade daughter's school work.  Psychologist Sally 
 
            Kessman evaluated claimant in 1991.  She found that although 
 
            claimant's basic arithmetic skills and ability to think 
 
            associatively were borderline, his full scale IQ was within 
 
            the low average range and she found it likely that he had 
 
            functioned at that level throughout his life.  Full scale IQ 
 
            on WAIS was prorated as 82 (claimant was unable to 
 
            completely perform all tests due to his vision deficit).
 
            
 
                 Claimant also apparently developed some sort of 
 
            embolism behind the right eye which necessitated surgery.  
 
            He now has a severe visual deficit in that eye, and to a 
 
            lesser degree on the left side.  On the right side, claimant 
 
            suffers a "black spot" in the center of his field of vision, 
 
            and has blurry or hazy side vision.  On the left side, he is 
 
            developing a similar spot, but the problem is less severe.  
 
            Claimant was seen at the Neuro-Ophthalmology Clinic at the 
 
            University of Iowa Hospitals and Clinics in 1991.  Visual 
 
            acuity on the right was 20/500, correctable only to 20/200.  
 
            Acuity on the left was 20/100, correctable to 20/70.
 
            
 
                 Claimant also suffers a hearing impairment on the right 
 
            side.  He has suffered a partial amputation to the right 
 
            small finger (he is left hand dominant).  He has suffered 
 
            back problems, especially with bending.  He also suffers 
 
            respiratory problems from a form of noncontagious 
 
            tuberculosis.  And, Mr. Bowman has suffered bilateral knee 
 
            injuries, both while employed by Allied Construction 
 
            Services.
 
            
 
                 After leaving school, claimant worked a number of 
 
            relatively unskilled jobs, such as dishwasher, machine 
 
            operator, sod layer and in golf course landscaping.  
 
            However, he has worked most of his life as a drywall 
 
            finisher.
 
            
 
                 Mr. Bowman was so employed on January 6, 1981, when he 
 
            felt a "snapping sensation" in his right knee.  Arthroscopic 
 
            examination was performed on January 30, finding a bucket 
 
            handle tear of the medial meniscus.  A partial medial 
 
            meniscectomy was thereupon carried out.  Recuperation was 
 
            slow, whereupon claimant underwent a second arthroscopic 
 
            procedure on July 16.  The treating surgeon, Richard L 
 
            Kreiter, M.D., several times charted his recommendation that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant seek other employment, although most people with 
 
            "bucket handle" tears do return to their usual occupation, 
 
            and claimant could "certainly" do work which did not require 
 
            squatting, kneeling or significant climbing.  Unfortunately, 
 
            drywall finishing does require significant climbing.  Dr. 
 
            Kreiter's last chart note, dated October 20, 1981, stated 
 
            that he "tried again to impress upon him the importance of 
 
            looking for other employment if he cannot carry out his 
 
            present occupation."
 
            
 
                 Although the record is a little unclear, claimant 
 
            apparently was not allowed to return to Allied as a union 
 
            drywall finisher due to medical restrictions.  Claimant then 
 
            moved to the state of Florida and worked in the drywall 
 
            trade for several years.  However, he eventually returned to 
 
            Iowa and this time was reemployed by Allied Construction 
 
            Services.
 
            
 
                 The injury that triggered this litigation occurred on 
 
            October 19, 1989, when claimant fell approximately six or 
 
            eight feet.  He suffered a fracture to the left patella and 
 
            another to the left middle finger.  Once again, recuperation 
 
            was slow, and claimant eventually underwent surgery on March 
 
            16, 1990.  Joshua D. Kimelman, M.D., performed a partial 
 
            medial meniscectomy and arthroscopy with findings of frayed 
 
            degenerative posterior one-third of medial meniscus tear.  
 
            On July 20, 1990, Dr. Kimelman charted that claimant could 
 
            return to a light duty job; either sedentary work or work 
 
            that does not require lifting or climbing.
 
            
 
                 Although claimant has made several attempts to return 
 
            to the drywall trade, he has been unable to work more than a 
 
            few hours due to pain in his left knee.  On October 25, 
 
            1990, Dr. Kimelman reported that the prognosis for returning 
 
            to full active duty was extremely unlikely, and that 
 
            claimant was a candidate for vocational rehabilitation.
 
            
 
                 On October 30, 1991, Dr. Kimelman reported that 
 
            claimant had a five percent impairment to each lower 
 
            extremity and further restricted claimant from climbing 
 
            activities.
 
            
 
                 Claimant was seen for evaluation by Mark B. Kirkland, 
 
            D.O.  Dr. Kirkland reported on July 1, 1992 his impression 
 
            of:
 
            
 
                 1.  Patellofemoral compression syndrome, left 
 
                 knee.
 
            2.  Status post inferior pole non-displaced 
 
            patellar fracture of the left knee.
 
            3.  Status post arthroscopic subtotal 
 
            meniscectomy.
 
            4.  Tight lateral retinaculum of the left knee.
 
            
 
                 Dr. Kirkland was not asked to evaluate the right knee.  
 
            He believed that claimant was "very weak" in terms of 
 
            overall fitness and thought claimant looked much older than 
 
            his stated age.  This observer developed the same impression 
 
            at hearing: claimant gives an appearance of frailty and 
 
            premature aging.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Kirkland assigned a nine percent impairment rating 
 
            to the left leg, based four percent on residuals of the 
 
            meniscectomy and five percent for the "impact-loading" 
 
            injury to the patella.  He suggested restrictions against 
 
            frequent or repetitive squatting or stair climbing.
 
            
 
                 Claimant complained at hearing of constant burning in 
 
            the left leg, "snags" when he gets up, swelling, and sleep 
 
            disturbance due to pain.  Asked in an interrogatory to 
 
            describe his complaints, he answered:
 
            
 
                    I have severe pain in my knee, it locks up and 
 
                 still swells up when there is prolonged standing 
 
                 or walking.  I still can't walk up stairs right or 
 
                 carry anything of weight to put pressure on my 
 
                 leg.  I can't squat anymore.  if I sit long in one 
 
                 position, my leg will lock up and I have to 
 
                 massage my knee.  Sometimes the pain is so bad it 
 
                 will wake me up at night.  Sometimes there is no 
 
                 pills that will help the pain.  Both knees still 
 
                 get rubbery feelings and are unstable.
 
            
 
                 In 1991, claimant undertook vocational evaluation at 
 
            the Iowa State Vocational Rehabilitation Facility.  Given 
 
            claimant's problems with vision and knees, the facility 
 
            could recommend only selective, sedentary placement in the 
 
            position of production assembler.  Claimant had the ability 
 
            to work accurately in assembly work, but would likely be 
 
            restricted from fine assembly tasks that required good 
 
            visual acuity.
 
            
 
                 Unlike the opinion developed by Dr. Kirkland, the ISVRF 
 
            believed claimant showed good motivation.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 While the treating surgeon has assigned a five percent 
 
            impairment rating to the left leg, the evaluating physician, 
 
            Dr. Kirkland, assigned a nine percent rating.  The nine 
 
            percent rating is more persuasive, in that it takes both the 
 
            meniscal tear and patellar fracture into account. 
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability, but consideration must 
 
            also be given to the injured employee's age, education, 
 
            qualifications, experience, motivation, loss of earnings, 
 
            severity and situs of the injury, work restrictions, 
 
            inability to engage in employment for which the employee is 
 
            fitted and the employer's offer of work or failure to so 
 
            offer.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
            181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961).
 
            
 
                 Total disability does not mean a state of absolute 
 
            helplessness.  Permanent total disability occurs where the 
 
            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, however.  
 
            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).
 
            
 
                 Unfortunately, Mr. Bowman is not a very attractive 
 
            candidate for competitive employment.  For almost the last 
 
            30 years, he has worked as a drywall finisher.  His medical 
 
            restrictions now clearly exclude him from continuing in that 
 
            profession.  Mr. Bowman has very little formal education and 
 
            functions only in the low average range of intelligence.  
 
            Given also his age, substantial retraining is simply not 
 
            realistic.  Lifting restrictions will prevent claimant from 
 
            working as a construction laborer, and his previous work as 
 
            a busboy or dishwasher is probably foreclosed by his 
 
            inability to stay on his feet for an extended time.
 
            
 
                 The Iowa State Vocational Rehabilitation Facility could 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            recommend only selective, sedentary assembly work.  
 
            Claimant's loss of visual acuity will foreclose him from 
 
            much of even this limited market, and he will probably need 
 
            an accommodating employer to permit changing positions 
 
            regularly.  It seems clear that claimant has a severe 
 
            weakness in his inability to read instructions.  His 
 
            respiratory problems attributable to tuberculosis will 
 
            require placement away from chemical fumes or areas of heavy 
 
            dust and paint spray.
 
            
 
                 Considering all these factors, it must be concluded 
 
            that at the present time, claimant's industrial disability 
 
            is permanent and total.
 
            
 
                 The parties have stipulated to the commencement of 
 
            permanency benefits on March 28, 1991.  Because this is a 
 
            second injury fund case, requiring an apportionment of 
 
            liability between the Fund and employer, it is appropriate 
 
            to assess the permanent partial disability attributable to 
 
            claimant's lower extremity disability to the employer on 
 
            that date, and thereafter assess claimant's total industrial 
 
            disability to the Fund.
 
            
 
                 Under Iowa Code section 85.34(2)(o), compensation for 
 
            the leg is 220 weeks.  Nine percent is 19.8 weeks, 
 
            equivalent to 19 weeks, 6 days.  The Fund is also entitled 
 
            to "credit" for claimant's previous loss to the right leg, 
 
            equivalent to 11 weeks.  The Fund has failed to present 
 
            evidence of the degree of impairment attributable to 
 
            claimant's visual deficits, so "credit" cannot be 
 
            calculated.  Fund liability therefore will commence 30 
 
            weeks, 6 days after March 28, 1991: on November 1, 1991.
 
            
 
                 Because defendants Allied Construction Services and 
 
            Allied Mutual Insurance Company have paid voluntary benefits 
 
            in excess of their liability, claimant shall take nothing as 
 
            to them.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 As to defendants Allied Construction Services and 
 
            Allied Mutual Insurance Company, claimant takes nothing.
 
            
 
                 Defendant Second Injury Fund of Iowa shall pay weekly 
 
            benefits of four hundred three and 66/100 dollars ($403.66) 
 
            to claimant commencing November 1, 1991, and continuing 
 
            during such time as claimant remains permanently and totally 
 
            disabled.
 
            
 
                 The Fund shall pay interest on accrued benefits from 
 
            the date this decision is filed.
 
            
 
                 Claimant's costs are assessed to defendants Allied 
 
            Construction Service and Allied Mutual Insurance Company.  
 
            Each defendant shall bear its own costs.
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Stephen D Lombardi
 
            Attorney at Law
 
            10101 University Avenue
 
            Suite 202
 
            Des Moines Iowa 50325
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            PO Box 9130
 
            Des Moines Iowa 50306-9130
 
            
 
            Ms Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
            
 
 
            
 
 
 
           
 
 
 
 
 
                                                1804; 3201; 2601.10
 
                                                Filed July 21, 1993
 
                                                DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KEITH F. BOWMAN, SR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 932701
 
            ALLIED CONSTRUCTION SERVICES, :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1804; 3201; 2601.10
 
            Permanent total disability was assessed against Second 
 
            Injury Fund.  Claimant suffered separate injuries to both 
 
            knees.  Although claimant also had severe visual deficits, 
 
            Fund was not given "credit" because impairment could not be 
 
            calculated absent any medical rating.
 
            
 
 
         
 
         
 
         
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         JAMES G. STUMPFF,   
 
                                               File No. 932836
 
              Claimant, 
 
                                                 A P P E A L
 
         vs.       
 
                                               D E C I S I O N
 
         SECOND INJURY FUND OF IOWA,   
 
                   
 
              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 
 
         January 18, 1994 is affirmed and is adopted as the final agency 
 
         action in this case, with the following additional analysis:
 
         As correctly stated by the deputy, "...the first requirement to 
 
         establish Fund liability is the previous loss of a hand, arm, 
 
         foot, leg or eye."  For purposes of triggering Fund liability, 
 
         when there is an impairment to the fingers or toes, it is 
 
         necessary to ascertain whether there is disability in the hand or 
 
         foot.  Simmons v. Black Clawson Hydrotile, 34 Biennial Rep., Iowa 
 
         Indus. Comm'r 313 (Appeal Dec. 1979) (Dist. Ct. App. settled) and 
 
         Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, 
 
         (2nd Ed.)  17-3.  In the instant case and for the reasons stated 
 
         by the deputy, the medical records do not show disability in 
 
         claimant's hand related to the 1976 finger injury.  Accordingly, 
 
         Fund liability is not triggered.
 
         
 
         Citing Second Injury Fund v. Neelans, 436 N.W.2d 355, 356-357 
 
         (Iowa 1989) and Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
         467, 470-471 (Iowa 1990), claimant asserts that the loss to a 
 
         finger does establish a loss to the hand for second injury fund 
 
         purposes (Claimant's Brief and Argument, pp. 5-6).  The 
 
         industrial commissioner does not agree with claimant's reading of 
 
         Neelans and Braden.  Neither case stands for the proposition 
 
         that loss to a finger, with no showing of disability in the hand, 
 
         triggers second injury fund liability.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
          
 
                                   ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr J Richard Johnson
 
         Attorney at Law
 
         PO Box 607
 
         1715 First Avenue SE
 
         Cedar Rapids  IA  52406
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         Mr James F Christenson
 
         Assistant Attorney General
 
         Hoover State Office Building
 
         Tort Claims Division
 
         Des Moines  IA  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              3202
 
                                              Filed May 18, 1994
 
                                              BYRON K. ORTON
 
                      
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES G. STUMPFF,   
 
                                                  File No. 932836
 
                 Claimant, 
 
                                                    A P P E A L
 
            vs.       
 
                                                  D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendant,     
 
            ___________________________________________________________
 
            
 
            
 
            3202
 
            Prior injury limited to the finger did not consitute 
 
            qualifying previous loss to trigger Fund liability.
 
            
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES G. STUMPFF,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                      
 
            B. G. BRECKE, INC.,               File No. 932836
 
                      
 
                 Employer,                 A R B I T R A T I O N
 
                      
 
            and                                D E C I S I O N
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
            This is a contested case proceeding upon the petition in 
 
            arbitration of James Stumpff against employer, B. G. Brecke, 
 
            Inc., its insurance carrier, Aetna Casualty & Surety 
 
            Company, and the Second Injury Fund of Iowa.  Claimant 
 
            sustained a severe injury to both wrists in a fall on 
 
            October 24, 1989.  He has since entered into an agreement 
 
            for settlement with defendants B. G. Brecke and Aetna, 
 
            followed by a partial commutation.  Only Mr. Stumpff's claim 
 
            against the Second Injury Fund of Iowa remains for 
 
            consideration in this proceeding.
 
            A hearing was accordingly held in Cedar Rapids, Iowa on July 
 
            15, 1993.  The record consists of claimant's exhibits 1-10, 
 
            Second Injury Fund's exhibits AA-GG, and the testimony of 
 
            claimant and John Suter.
 
            
 
                                     ISSUES
 
            
 
            The parties have stipulated that claimant sustained injury 
 
            arising out of and in the course of employment on October 6, 
 
            1976 (the prerequisite "prior" loss) and October 24, 1989, 
 
            and agree that the injury caused permanent disability.  The 
 
            parties also stipulated to the rate of compensation 
 
            ($524.56).
 
            
 
            Issues presented for resolution include:
 
            1.  Whether claimant sustained a qualifying prior injury 
 
            under Iowa Code section 85.64; and,
 
            2.  If so, the extent of Second Injury Fund liability.
 

 
            
 
            Page   2
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
            The undersigned deputy industrial commissioner finds:
 
            On October 6, 1976, claimant suffered a severe injury when 
 
            his fingers were caught between concrete chutes, nearly 
 
            severing his right index finger at the distal one-third of 
 
            the proximal phalanx.  An open reduction of the fracture was 
 
            performed by Bruce L. Sprague, M.D., with the assistance of 
 
            Drs. DeCesare and Craven.  Dr. Sprague's surgical notes show 
 
            fracture of the proximal phalanx with disruption of the 
 
            extensor mechanism, and contused but intact neurovascular 
 
            bundles.  Dr. Sprague wrote that the PIP (proximal 
 
            interphalangeal joint) was not entered.  That is to say, the 
 
            surgical procedure was limited to the finger, and did not 
 
            invade the hand.  Dr. Sprague eventually rated impairment at 
 
            73 percent of the finger, which he then correlated to 
 
            eighteen percent of the hand and sixteen percent of the 
 
            upper extremity.
 
            
 
                        ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            As seen, the first requirement to establish Fund liability 
 
            is the previous loss of a hand, arm, foot, leg or eye.  In 
 
            this case, claimant relies on the 1976 injury to establish 
 
            prior loss.  Numerous cases have held that the loss of a 
 
            finger does not trigger Fund liability.  Gilbert v. Second 
 
            Injury Fund of Iowa, (Arb. Dec., Sept. 29, 1989); Fugit v. 
 
            Jimmy Dean Meat and Second Injury Fund of Iowa, (Arb. Dec., 
 
            March 19, 1991); Patton v. Roberts Dairy and Second Injury 
 
            Fund of Iowa, (Arb. Dec., January 13, 1992).
 
            The medical records do not show disability in claimant's 
 
            hand related to the 1976 finger injury.  The fact that 
 
            claimant suffers a loss of grip strength is to be expected 
 
            with such a severe finger injury, but fails to demonstrate 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            independent disability of the hand.  Similarly, the fact 
 
            that the Dr. Sprague extrapolated his impairment rating to 
 
            the hand and upper extremity does not indicate that the 
 
            injury extended either to the hand or the arm.  Claimant has 
 
            complained of pain, but pain alone does not establish 
 
            disability absent objective findings.  On the basis of the 
 
            entire record, the 1976 injury is limited to the index 
 
            finger, and accordingly fails to trigger Fund liability.
 
            
 
                                    ORDER
 
            
 
            IT IS THEREFORE ORDERED:
 
            Claimant shall take nothing further.
 
            Costs are assessed to claimant.
 
            Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                      DAVID R. RASEY
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr J Richard Johnson
 
            Attorney at Law
 
            PO Box 607
 
            1715 First Avenue SE
 
            Cedar Rapids Iowa 52406
 
            
 
            Mr Thomas N Kamp
 
            Attorney at Law
 
            600 Davenport Bank Building
 
            Davenport Iowa 52801
 
            
 
            Mr James F Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3202
 
                                            Filed January 18, 1994
 
                                            DAVID R. RASEY
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES G. STUMPFF,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                      
 
            B. G. BRECKE, INC.,                  File No. 932836
 
                      
 
                 Employer,                    A R B I T R A T I O N
 
                      
 
            and                                  D E C I S I O N
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            3202
 
            Prior injury limited to the finger did not consitute 
 
            qualifying previous loss to trigger Fund liability.