Page   1
            BETTY WHARTON,                :
                 Claimant,                :
            vs.                           :
                                          :      File No. 935160
            ARMOUR FOOD COMPANY,          :
                                          :     A R B I T R A T I O N
                 Employer,                :
                 Self-Insured,            :       D E C I S I O N
                 Defendant.               :
                 This case came on for hearing on June 19, 1992, at 
            Mason City, Iowa.  This is a proceeding in arbitration 
            wherein claimant seeks compensation for permanent partial 
            disability benefits as a result of an alleged injury 
            occurring on July 17, 1989.  The record in the proceedings 
            consists of the testimony of the claimant and Daryl Johnson; 
            claimant's exhibits 1 and 2; and, defendants' exhibits A 
            through H.
                 The issues for resolution are:
                 1.  Whether there is a causal connection as to 
            claimant's permanent disability and his July 17, 1989 
                 2.  The extent of claimant's permanent disability and 
            entitlement to disability benefits; and,
                 3.  The claimant's rate per week at which any benefits 
            would be paid, if liability is found.
                                 FINDINGS OF FACT
                 The undersigned deputy, having heard the testimony and 
            considered all the evidence, finds that:
                 Claimant is a 35-year-old high school graduate who has 
            had no further post-high school education.  Claimant related 
            her work history prior to beginning work with defendant in 
            April 1986.  This prior work consisted of being a nurse's 
            aide and working as a motel housekeeper.  Claimant had taken 
            off between 1980 and her beginning work for defendant in 
            1986 to care for her five year old and a new baby.  She 
            indicated she returned to work as she needed the money.
                 Claimant related that she was in good health at the 
            time she began work with the defendant.  She related her 
            duties with defendant.  She was moved into a new department 
            on July 17, 1989, and on that day indicated that she was 
            taking the one pound boxes of bacon and putting them in a 
            box up to a 25 pound limit and then pushing them through a 
            Page   2
            machine.  When she did this, she felt as if something broke 
            in her back.  She notified defendant and eventually went for 
            physical therapy and bed rest.  As the parties stipulated, 
            she was off initially from July 18, 1989 through July 31, 
            1989.  She was to do no lifting and little activity but 
            mainly bed rest.
                 Claimant testified as to some of the treatments and 
            physical therapy she had and the doctors' appointments.  
            Claimant testified that when Kenneth B. Washburn, M.D., 
            released her, she did not think she was ready to return to 
            work as she still had back pain.  She did indicate that she 
            thought that she would be returning to the job she had on 
            July 17, 1989, in the bacon department (also referred to as 
            a ready grill department), as she only needed to lift 17 
            pounds in this department, but instead was put on a light 
            duty job involving typing and labeling.
                 Claimant related that on January 23, 1991, she entered 
            into a rehabilitation plan agreement whereby the 
            rehabilitation consultant was going to find claimant another 
            job placement because of claimant's restriction.  The 
            consultant did not think claimant would be going back to 
            work for the defendant.  Claimant indicated she did not 
            think she could go back with her restrictions.  Claimant 
            indicated she thought the work hardening program she was 
            going through was with the intent of putting her back to 
            work at Armour.  Claimant indicated she was not accepting 
            the fact that she could not go back to her prior job at 
            Armour but indicated defendant thought the restrictions were 
            a problem.
                 Claimant testified as to the jobs she looked for and 
            how she looked for them in the various places in which she 
            went to look.  She was told by the consultant to keep track 
            of her mileage in connection with the job search as they 
            would pay for it.  It eventually turned out that they said 
            they couldn't pay mileage because of the Minnesota law and 
            not the Iowa law.
                 As the parties stipulated, claimant again returned to 
            work on August 1, 1989 to but not including September 26, 
            1989, on light duty work.
                 Claimant was off again on September 26, 1989 through 
            October 8, 1990.  She testified as to therapy she received 
            for approximately eight months.  Claimant indicated that she 
            thought there were some light duty jobs at defendant she 
            could go back to.  Joint exhibit 1, page 148, is a March 28, 
            1991 letter claimant received terminating her.  Claimant 
            testified that she did not work for defendant from the date 
            of her accident to the date of termination, October 8, 1990, 
            except for the period of time between her healing periods, 
            namely, August 1, 1989 up to September 26, 1989, and during 
            this period she only performed light duty work for 
            defendant.  Claimant emphasized she never got a job through 
            her job search nor did she ever have an interview.
                 Claimant said she had a good relationship with the 
            rehabilitation consultant until they violated their 
            Page   3
            agreement to pay her mileage for her job search.
                 Claimant indicated that if she was still working at 
            Armour she would be making around $9 per hour plus having 
            dental, health and life insurance.
                 Claimant acknowledged she understood she was surveilled 
            and indicated that her activities shown were not 
            inconsistent with her claim at this hearing.  She then 
            indicated that she never saw the surveillance tape but only 
            knows what her attorney orally told her.
                 Although claimant seemed to indicate there was no work 
            she could return to at Armour that she had done prior to the 
            July 17, 1989 injury, defendant's exhibit C, pages 6 and 7, 
            she testified at the hearing that she still thought 
            defendant could have worked with her and got her back to 
            regular duty work.  She indicated she didn't ask and it 
            appeared that the defendant did not ask her to come back.  
            It is also evident that the vocational rehabilitation people 
            did not get her a job within her restrictions.
                 Claimant related the various things she either cannot 
            do or she does that irritate her back and increases her 
            pain.  She indicated she avoid many of those things that 
            cause her problems.  Claimant testified she has gotten no 
            interviews from her job applications.  She said they have 
            never mentioned her back condition but she believes her 
            condition is an impediment.
                 Daryl Johnson testified that he is the current manager 
            of the human resources department with defendant.  This 
            department has duties concerning work and rule compliance 
            and accommodation of injured workers, etc.  Mr. Johnson 
            knows claimant and heard her testimony.  He indicated she 
            truthfully related her duties she performed while working 
            for defendant.
                 Mr. Johnson indicated when there are vacancies at 
            defendant's, they are posted on the bulletin board for five 
            days.  He indicated defendant has a seniority system.
                 Mr. Johnson indicated that claimant could bid only 
            within her department on a job vacancy.  He emphasized it 
            would not be easy to bid out of that department into another 
            department.  Mr. Johnson said that claimant has not come to 
            him as he recalls as to bidding out.  He does not believe 
            claimant can do any job in her department due to her 
            restrictions given by Dr. Washburn.
                 Mr. Johnson said that Armour has no permanent light 
            duty jobs.  The termination letter (Claimant's Exhibit 1, 
            page 148) was done in accordance with the union contract.  
            He said that if a person is off work 18 months due to a 
            work-related injury, their seniority and employment is 
            terminated.  He said they don't presently have work within 
            claimant's restrictions.  The undersigned notes that 
            claimant's exhibit 1, page 148, has also been referred to it 
            as exhibit 108, mainly because it has an exhibit sticker 
            108.  The undersigned has consistently referred to it as 
            Page   4
            page 148 even though in the record of testimony it may have 
            at times been referred to as exhibit 108.  It is obvious in 
            looking at the exhibits in the chronological order that it 
            is in fact to be page 148.  Mr. Johnson indicated that 
            claimant would be making $8.75 per hour doing the work she 
            was doing on July 17, 1989, plus there would be union 
            security, health, life insurance, etc.
                 The Park Clinic, Mason City records of the doctors is 
            reflected in claimant's exhibit 1, pages 1-58.  The 
            particular medical notes of the various doctors at the 
            clinic are mainly involved in pages 1 through 13.
                 The October 2, 1990 notes, page 11 of claimant's 
            exhibit 1, of Kenneth B. Washburn, M.D., indicate that he 
            did not think along with Michael W. Crane, M.D., that 
            claimant needs any more evaluation or workup.  Dr. Washburn 
            felt that claimant reached the point of maximal improvement 
            as far as her back situation is concerned.  The doctor's 
            notes over a period of time do reflect that claimant, 
            pursuant to work hardening program, also developed right 
            tennis elbow, chronic recurrent.  His diagnosis on October 
            2, 1990, also was that claimant had a sacroiliac strain, 
            chronic and recurrent.  The doctor filled out a physical 
            capacity form in relation to claimant's back.  He indicated 
            that this does not allow her to lift over 30 pounds nor to 
            sit for more than 30 minutes at one time and does not allow 
            her to stand for more than 45 minutes in one place, but he 
            did give her a limitation of no walking for more than one 
            hour at a time before she should sit down and relax.  He 
            further indicated that she should not be reaching over her 
            head more than 20 pounds nor should be pushing and pulling 
            any carts that weight over 60 pounds (Cl. Ex. 1, p. 11).
                 On October 12, 1990, Dr. Washburn felt that claimant 
            had a 1 percent disability of the whole person secondary to 
            chronic recurrent sacroiliac strain.  He did not expect any 
            permanent disability from the upper extremity problem (Cl. 
            Ex. 1, p. 12).  The parties stipulated that claimant was off 
            work and paid healing period benefits for the second period 
            of time that began September 26, 1989 through October 8, 
            1990.  Claimant's exhibit 1, page 66, reflects Dr. 
            Washburn's June 25, 1990 letter in which at that time he did 
            not feel any further work hardening program would benefit 
            claimant.  He indicated she was not eligible for light duty 
            because of union rules and therefore sent her home to try to 
            keep in as good as shape as possible.  He further indicated 
            that if she has not improved by the next time he will 
            probably give her some permanent restrictions as to her 
            ability to work and give her an impairment rating at that 
            time.  As referred to earlier, he then gave an impairment 
            rating and restrictions on October 2, 1990.  He also 
            indicated that he was going to get an additional opinion 
            from Dr. Crane who is also in the Park Clinic with him.  Dr. 
            Crane is an orthopedic surgeon.  Dr. Crane's October 4, 1991 
            letter, which is claimant's exhibit 1, page 67, affirms his 
            opinion in that he agrees with Dr. Washburn as to claimant's 
            1 percent impairment.  He indicated that Dr. Washburn who 
            was in charge of the clinic's industrial medicine was doing 
            most of the medical business with the claimant.  He also 
            Page   5
            indicated he felt claimant's injury was a fairly typical 
            workers' compensation type injury.  He further indicated, 
            unfortunately, that claimant's pain is subjective with very 
            little objective findings to support a higher rating.
                 Claimant was sent by her attorney to S. J. Laaveg, M.D.  
            Dr. Laaveg did an evaluation of claimant on January 20, 
            1992, and recommended an MRI scan of claimant's lumbosacral 
            spine in order to do further evaluation (Cl. Ex. 1, p. 68).  
            In an April 20, 1992 report, Dr. Laaveg reviewed the MRI 
            scan that was taken in March 1992 which showed a 
            degenerative disc disease at L4-L5, L5-S1, with disc bulges 
            but with no protrusion in the spinal canal or impingement of 
            nerve roots.  He did not think claimant was a surgical 
            candidate at that time.  His records indicate that 
            claimant's back problem began in July of 1989, at the time 
            of her injury (Cl. Ex. 1, p. 110).  On May 11, 1992, Dr. 
            Laaveg opined that claimant had a physical impairment of 6 
            percent to the back and whole person using the AMA Guides to 
            the Evaluation of Permanet Impairment (Cl. Ex. 1, p. 112A).
                 Defendant's Exhibit A is an April 17, 1992 letter from 
            Marvin H. Dubansky, M.D., an orthopedic surgeon.  He 
            evaluated claimant on April 17, 1992.  He indicated that 
            claimant's diagnosis was mild chronic sacroiliac strain and 
            that there was some evidence of disc degeneration, 
            particularly at L5/S1.  He further indicated it was 
            difficult to relate disc degeneration to any specific act 
            that one carries out.  He opined that under the AMA Guide, 
            claimant had a 5 percent permanent impairment of the body as 
            a whole under the catgegory of intervertebral disc or soft 
            tissue lesions.  He further wrote that he felt that 
            claimant's symptomatic complaints were without true 
            objective findings but she complains of pain and difficulty 
            when she is standing and walking even though there was no 
            objective findings.  He indicated that no matter what one 
            says or does, claimant was not going to return to a job 
            requiring being on her feet and lifting.  He also indicated 
            that contrary to what Dr. Laaveg might have indicated, 
            spinal fusion would not be efficacious as this type of 
            surgery has been unimpressive as far as relieving an 
            individual's symptoms.
                 Defendant's exhibit B is a March 10, 1992 radiographic 
            report from St. Joseph Mercy Hospital indicating there is an 
            L4-5 and S5-S1 degenerative disc disease with disc 
            dehydration and mild broad based disc bulges without 
            herniation or protrusion.
                 Defendant's exhibit F are some pictures which were 
            taken during the surveillance of claimant.
                 Defendant's exhibit G is a report of Research 
            Consultants Group, Inc., concerning a video tape taken of 
            the claimant while doing certain activities at her home.  
            The video tape has been reviewed by the undersigned (Def. 
            Ex. H).  The undersigned noted that the tape started on 
            March 27, 1992, at approximately 10:00 a.m. and showed 
            videos of the claimant doing certain work until 
            approximately 2:26 p.m.  The surveillance report actually in 
            Page   6
            the summary depicts what the undersigned saw on the video.  
            The undersigned agrees that the type of activity claimant 
            was doing which involved squatting, stooping, pulling, 
            walking, etc., was done apparently with no hesitation.  The 
            undersigned also realizes that depending on a person's 
            constitution, one can do a considerable amount of work with 
            pain and not necessarily evidence it.  The tape was not of 
            the greatest quality as to determining the expression of the 
            claimant.  In fact, the undersigned presumes it was the 
            claimant as it was not clear enough to show the face or any 
            expression of the claimant, so if in fact the undersigned 
            had not known that it was of the claimant, he would not have 
            actually been able to identify the person as the claimant he 
            saw at the hearing.
                 Claimant's exhibit 1, pages 113 through 147, is the 
            notes and reports regarding a job placement plan for the 
            claimant.  It is noted in several places in this exam that 
            claimant apparently was not doing any job search as she was 
            requested and that they had not received any job logs from 
            the claimant concerning the particular jobs that she was to 
            research or follow up.  Claimant's exhibit 1, pages 145 and 
            146 is a May 29, 1991 report of AAD&K, the placement 
            company.  They indicate that the placement services have 
            continued to be provided to the claimant with no activity 
            noted on her part and that they had not received any logs 
            from her.  They also indicate that she was doing a job 
            search for unemployment and did not seem to want their 
            services at that time.  Therefore, they were indicating they 
            were going to close their file at that time in regard to 
            rehabilitation services.
                 Defendant's exhibit C and claimant's exhibit 2 are the 
            parties' position as to the rate issue.  The undersigned 
            finds that in reviewing the two documents claimant desires 
            to leave out certain weeks that claimant feels were 
            incomplete.  These were weeks in which the claimant was 
            apparently working 23.83, 23.75, 39.06, 36.33, 36, 35.80, 
            31.83 and 36.78 hours rather than a 40 hour week.  As noted 
            on these exhibits, there were many weeks in which claimant 
            worked in excess of 40 hours, some weeks as high as 51 
            hours.  It appears the parties agree that a legal 13 weeks 
            should be the guideline.  Claimant is taking out those weeks 
            she feels is incomplete and filling them in with another 
            week.  Defendant takes the position that the 13 weeks before 
            claimant's injury should be taken.  The undersigned notes 
            that in those 13 weeks, assuming claimant will be working a 
            40 hour week, they actually add up to claimant working a 
            cumulative total of 5.92 hours over a 40 hour average week.  
            The undersigned therefore finds that even though some weeks 
            might have been less than 40 hours, there were some more 
            than 40 hours which compensated for the under 40 hour week.  
            The undersigned finds that the defendant's computed rate of 
            $219.94 is the correct rate which should be used for any 
            benefits payable herein. There is no evidence in the record 
            that during those weeks claimant worked in excess of 40 
            Page   7
            hours that she was in fact paid overtime.
                 As to whether there is causal connection as to 
            claimant's permanent disability and her work injury of July 
            17, 1989, the undersigned finds that the claimant has 
            carried her burden of proof and that the greater weight of 
            medical testimony shows claimant does have a permanent 
            impairment, disability and restrictions as a result of her 
            July 17, 1989 injury, and the undersigned so finds.
                 The remaining issue is the extent of claimant's 
            permanent disability.  The treating doctor, Dr. Washburn, 
            and Dr. Crane, opined that claimant has a 1 percent 
            impairment.  Dr. Laaveg, who evaluated claimant, opined 6 
            percent, and Dr. Dubansky pursuant to defendant's request 
            for an evaluation opined a 5 percent permanent impairment.  
            It would appear that claimant's problems are subjective and 
            that there have been no real objective findings.  The 
            undersigned does believe though that claimant is injured and 
            does have a permanent impairment and finds that claimant 
            currently has some permanent restrictions and those 
            restrictions would prevent her at this time from returning 
            to her work at Armour Food.
                 Claimant is 35 years old.  Approximately five or six 
            years prior to her beginning work with defendant in 1986, 
            she was home raising her children.  She indicated the reason 
            she went back to work was she needed the money.  The 
            undersigned has found that claimant did receive a work 
            injury on July 17, 1989.  The undersigned has a question as 
            to the severity of claimant's injuries and particularly in 
            reference to the doctor's report as to the findings of 
            subjective versus objective.  The surveillance exhibit 
            represented by defendant's exhibit H shows claimant being 
            quite active.  The undersigned realizes that claimant isn't 
            contending that she is totally disabled.  Life must go on 
            and regardless of the pain, one must do certain things.  
            Oftentimes, when one does certain work, depending on the 
            extent of the pain, there is some evidence that one is 
            feeling pain.  The undersigned did not note on the 
            surveillance tape any evidence that claimant had an injury 
            even though that is not saying claimant wasn't be affected 
            by her injury even though it was not noticeable.  The 
            undersigned believes the extent of claimant's impairment and 
            it's findings hereafter as to industrial disability would 
            indicate that claimant was able and could do the things she 
            was doing.
                 Claimant is young.  In looking at the attempts for 
            placement and trying to find her a job, it does not seem as 
            though claimant was taking advantages of those services like 
            she should.  It appears her motivation was low.  
                 Taking into consideration claimant's pre and post-work 
            history; medical history; education; location of her 
            injuries; severity of her injuries; healing period; age; 
            motivation; functional impairment; and, any other criteria 
            used to determine industrial disability, the undersigned 
            finds that claimant has a 10 percent industrial disability 
            Page   8
            and that her industrial disability benefits shall begin on 
            October 9, 1990, at the rate of $219.94.
                                CONCLUSIONS OF LAW
                 The claimant has the burden of proving by a 
            preponderance of the evidence that the injury of July 17, 
            1989, is causally related to the disability on which she now 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
            probability is necessary.  Burt v. John Deere Waterloo 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
            question of causal connection is essentially within the 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
                 However, expert medical evidence must be considered 
            with all other evidence introduced bearing on the causal 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
            of experts need not be couched in definite, positive or 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
            903 (Iowa 1974).  However, the expert opinion may be 
            accepted or rejected, in whole or in part, by the trier of 
            fact.  Id. at 907.  Further, the weight to be given to such 
            an opinion is for the finder of fact, and that may be 
            affected by the completeness of the premise given the expert 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
                 Functional impairment is an element to be considered in 
            determining industrial disability which is the reduction of 
            earning capacity, but consideration must also be given to 
            the injured employee's age, education, qualifications, expe
            rience and inability to engage in employment for which he is 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
            285, 110 N.W.2d 660 (1961).
                 A finding of impairment to the body as a whole found by 
            a medical evaluator does not equate to industrial disabil
            ity.  This is so as impairment and disability are not syn
            onymous.  Degree of industrial disability can in fact be 
            much different than the degree of impairment because in the 
            first instance reference is to loss of earning capacity and 
            in the latter to anatomical or functional abnormality or 
            loss.  Although loss of function is to be considered and 
            disability can rarely be found without it, it is not so that 
            a degree of industrial disability is proportionally related 
            to a degree of impairment of bodily function.
                 Factors to be considered in determining industrial dis
            ability include the employee's medical condition prior to 
            the injury, immediately after the injury, and presently; the 
            situs of the injury, its severity and the length of healing 
            period; the work experience of the employee prior to the 
            injury, after the injury and potential for rehabilitation; 
            the employee's qualifications intellectually, emotionally 
            and physically; earnings prior and subsequent to the injury; 
            Page   9
            age; education; motivation; functional impairment as a 
            result of the injury; and inability because of the injury to 
            engage in employment for which the employee is fitted.  Loss 
            of earnings caused by a job transfer for reasons related to 
            the injury is also relevant.  These are matters which the 
            finder of fact considers collectively in arriving at the 
            determination of the degree of industrial disability.
                 There are no weighting guidelines that indicate how 
            each of the factors are to be considered.  There are no 
            guidelines which give, for example, age a weighted value of 
            ten percent of the total value, education a value of fifteen 
            percent of total, motivation - five percent; work experience 
            - thirty percent, etc.  Neither does a rating of functional 
            impairment directly correlate to a degree of industrial 
            disability to the body as a whole.  In other words, there 
            are no formulae which can be applied and then added up to 
            determine the degree of industrial disability.  It therefore 
            becomes necessary for the deputy or commissioner to draw 
            upon prior experience, general and specialized knowledge to 
            make the finding with regard to degree of industrial dis
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
            (Appeal Decision, March 26, l985).
                 Iowa Code section 85.36 provides, in relevant part:
                    The basis of compensation shall be the weekly 
                 earnings of the injured employee at the time of 
                 the injury.  Weekly earnings means gross salary, 
                 wages, or earnings of an employee to which such 
                 employee would have been entitled had the employee 
                 worked the customary hours for the full pay period 
                 in which the employee was injured, as regularly 
                 required by the employee's employer for the work 
                 or employment for which the employee was employed, 
                 computed or determined as follows and then rounded 
                 to the nearest dollar:
                    6.  In the case of an employee who is paid on a 
                 daily, or hourly basis, or by the output of the 
                 employee, the weekly earnings shall be computed by 
                 dividing by thirteen the earnings, not including 
                 overtime or premium pay, of said employee earned 
                 in the employ of the employer in the last 
                 completed period of thirteen consecutive calendar 
                 weeks immediately preceding the injury.
                 It is further concluded that:
                 Claimant's permanent disability is causally connected 
            to her July 17, 1989 injury.
                 Claimant has a permanent impairment as a result of her 
            July 17, 1989 injury.
                 Claimant's rate for payment of benefits is $219.94 per 
            Page  10
                 Claimant has incurred a 10 percent industrial 
            disability as a result of her July 17, 1989 work injury.
                 THEREFORE, it is ordered:
                 That claimant is entitled to fifty (50) weeks of 
            permanent partial disability benefits at the weekly rate of 
            two hundred nineteen and 94/100 dollars ($219.94), beginning 
            October 9, 1990.
                 That the parties agree as to the time off claimant had 
            as a result of the work injury and that no additional 
            healing period is involved.
                 That defendants shall pay accrued weekly benefits in a 
            lump sum and shall receive credit against the award for 
            weekly benefits previously paid.  The parties stipulated 
            that all healing period had been paid and that five (5) 
            weeks of permanent partial disability at the rate of two 
            hundred nineteen and 94/100 dollars ($219.94) had been paid.
                 That defendants shall pay interest on benefits awarded 
            herein as set forth in Iowa Code section 85.30.
                 That defendants shall pay the costs of this action, 
            pursuant to rule 343 IAC 4.33.
                 That defendants shall file an activity report upon 
            payment of this award as required by this agency, pursuant 
            to rule 343 IAC 3.1.
            Page  11
            Signed and filed this ____ day of June, 1992.
                                          BERNARD J. O'MALLEY
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies to:
            Mr Robert W Pratt
            Attorney at Law
            6959 University Ave
            Des Moines IA 50311
            Mr Marvin E Duckworth
            Attorney at Law
            Terrace Ctr  Ste 111
            2700 Grand Ave
            Des Moines IA 50312
                                                 5-1108; 5-1803
                                                 Filed June 26, 1992
                                                 Bernard J. O'Malley
            BETTY WHARTON,                :
                 Claimant,                :
            vs.                           :
                                          :      File No. 935160
            ARMOUR FOOD COMPANY,          :
                                          :     A R B I T R A T I O N
                 Employer,                :
                 Self-Insured,            :       D E C I S I O N
                 Defendant.               :
            5-1108; 5-1803
            Found claimant's July 17, 1989 work injury caused claimant 
            to incur a 10% industrial disability.
         JOHN EUROM,      
                                              File No. 935223
         M.A. MORTENSON CO.,   
                                               A P P E A L
                                             D E C I S I O N
              Insurance Carrier,    
         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 
         April 23, 1992 is affirmed and is adopted as the final agency 
         action in this case.
         Claimant shall pay the costs of the appeal, including the 
         preparation of the hearing transcript.
         Signed and filed this ____ day of October, 1992.
                                            BYRON K. ORTON
                                      INDUSTRIAL COMMISSIONER
         Copies To:
         Mr. Fredd J. Haas
         Attorney at Law
         5001 S.W. 9th St.
         Des Moines, Iowa 50315
         Mr. Stephen Moline
         Assistant Attorney General
         Tort Claims Division
         Hoovers State Office Bldg.
         Des Moines, Iowa 50319
                                            Filed October 28, 1992
                                            Byron K. Orton
            JOHN EUROM,      
                                                File No. 935223
            M.A. MORTENSON CO.,   
                                                 A P P E A L
                                               D E C I S I O N
                 Insurance Carrier,    
            SECOND INJURY FUND OF IOWA,     
                 Summary affirmance of deputy's decision filed April 23, 
            Page   1
                     nbefore the iowa industrial commissioner
            ALBERT KALELL,                :
                 Claimant,                :
            vs.                           :
                                          :       File No. 935422
            ABELL-HOWE,                   :
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :        D E C I S I O N
            and                           :
            NATIONAL UNION FIRE           :
            INSURANCE COMPANY,            :
                 Insurance Carrier,       :
            and                           :
                 Defendants.              :
                              statement of the case
                 This is a proceeding in arbitration upon the petition 
            of claimant, Albert Kalell, against the Second Injury Fund 
            Iowa, defendant.  Originally, claimant had filed an action 
            against his employer, Abell-Howe.  Those parties entered 
            into a full commutation which was approved by Deputy 
            Industrial Commissioner, Elizabeth Nelson on July 8, 1991.  
            In the commutation, claimant was paid for a 21.75 percent 
            permanent partial disability of the left upper extremity by 
            defendant employer and defendant insurance carrier.
                 The claim against the Second Injury Fund of Iowa was 
            heard on April 4, 1992 in Cedar Rapids at the Linn County 
            Courthouse.  The record consists of the testimony of 
            claimant.  The record is also comprised of joint exhibits 1 
            and 2; claimant's exhibits 1-8; and, the Second Injury 
            Fund's exhibits 2, 4 and 5.
                 The sole issue to be determined is whether claimant is 
            entitled to benefits from the Second Injury Fund, and if so, 
            the nature and extent of the benefits.
            Page   2
            findings of fact
                 The deputy, having heard the testimony and considered 
            all the evidence, finds:
                 Claimant is 35 year old.  He is married with one child.  
            In 1981, claimant obtained his GED from Kirkwood Community 
                 During his years as a teenager, claimant stocked 
            shelves, unloaded trucks, swept retail stores, cooked 
            burgers, and cleaned a fast food restaurant.  His jobs were 
            all unskilled and they paid the then minimum wage.
                 In 1976, claimant became associated with Laborers Local 
            43.  He essentially performed heavy unskilled work primarily 
            in the area of highway construction.  Claimant poured 
            concrete, operated a jackhammer, carried and set forms, 
            performed clean-up tasks, and engaged in heavy lifting of 
            60-150 pounds.  He earned $6.50 to $8.00 per hour.
                 In 1978, claimant obtained a building trades card.  He 
            was able to work on buildings for a higher wage rate.  
            Again, claimant engaged in many of the aforementioned tasks 
            including heavy lifting.  He earned from $9.35 per hour to 
            $12.35 per hour.  He worked in Iowa until 1984 when he 
            transferred his card to Oregon.  While there, he worked on 
            walkways and curbs.
                 From May of 1984 through November 1984, claimant worked 
            in the entomology department at the University of Oregon.  
            There was overhead work involved, but no strenuous lifting.
                 Next, claimant returned to construction work.  His 
            duties involved manual labor and heavy lifting.  He engaged 
            in overhead work.  His rate of pay was $14.65 per hour.  On 
            August 8, 1985, claimant sustained a work-related injury 
            when he was struck by a backhoe.  He injured his right arm, 
            and about five inches below his right shoulder.  Surgery was 
                 Claimant also encountered kidney failure.  This was 
            unrelated to any work activity.  However, claimant had 
            dialysis, and a kidney transplant, after a donor was 
                 Claimant was off work until June of 1988.  Then he 
            returned to construction work.  However, claimant testified 
            he was able to work only three days before his arm turned 
            black and blue.  He described soreness, pain, tiredness and 
            weakness in the right arm.  Claimant remained off work until 
            July of 1989.
                 Richard F. Neiman, M.D., evaluated claimant's right 
            upper extremity on January 6, 1992.  In his report, Dr. 
            Neiman opined:
                 He has limitation as far as the abduction of the 
                 right shoulder at 100 degrees giving a 4% level of 
                 impairment of the upper extremities.  The 
            Page   3
                 adduction of the right shoulder at 45 degrees 
                 giving a zero percent level of impairment.  
                 Flexion of the right shoulder at 110 degrees 
                 giving a 4% level of impairment of the upper 
                 extremities.  The adduction of the right shoulder 
                 at 45 degrees giving a zero percent level of 
                 impairment.  Flexion of the right shoulder at 110 
                 degrees giving a 5% level of impairment of the 
                 upper extremity, extension at 45 degrees giving 
                 1/2% disability of the upper extremity.  External 
                 rotation of the right shoulder at 75 degrees gives 
                 a zero percent level of impairment and internal 
                 rotation of the right shoulder at 60 degrees give 
                 a 1% level of impairment.  The impairment rating 
                 therefore according to the records as provided of 
                 November 19, 1988 would be a 10.5% of the upper 
                    Assuming the pain is located in only the 
                 shoulder area and does not move more proximal to 
                 the scapular region the rating would therefore be 
                 of 10.5% of the upper extremity.  However, if the 
                 pain is more proximal the impairment rating could 
                 be increased to approximately 7% of the whole 
                 person.  Looking through the clinical notes I am 
                 not sure I could really lean one way or the other 
                 as to whether this relates strictly to the upper 
                 extremity of the whole person.
                    As far as vocation restriction I think he is 
                 capable of sedentary activity.  I would avoid 
                 repetitive use of the arm overhead and above the 
                 shoulder level.  I would agree with the 
                 recommendations of Dr. Paluska and Dr. Henshaw as 
                 far as vocational rehabilitation.  If you have any 
                 questions regarding this dictation, please advise.
            (Cl. Ex. 2, pp. 1-2)
                 Claimant has sought no treatment for the right upper 
            extremity after his return to Iowa.
                 On July 1, 1989, claimant returned to Iowa.  That same 
            month he commenced employment with Cedar Valley 
            Construction.  He remained there for three months.  He was 
            paid at the rate of $9.50 per hour.  Claimant terminated 
            because he desired higher wages.  He started with High Rise 
            Construction where he assisted in building a parking ramp.  
            After six weeks, claimant left for employment with Abell-
            Howe at the rate of $11.70 per hour.
                 At Abell-Howe, claimant worked at General Mills in 
            Cedar Rapids.  His duties included demolition work, knocking 
            down walls, digging footings, operating a jackhammer, 
            pouring concrete, using a pick or sledgehammer, chipping 
            concrete, and operating a chipping hammer.
                 On November 11, 1989, claimant was operating a chipping 
            hammer.  He held his left hand around the bit and nozzle.  
            He exerted pressure and he hit his left elbow against the 
            Page   4
            wall.  He experienced pain from the left elbow to the left 
            hand and he described the left extremity as highly 
                 Claimant sought medical treatment from Yang Ahn, M.D.  
            The physician referred claimant to the Iowa Musculoskeletal 
            Center for an orthopedic evaluation.  Walter J. H. Hales, 
            M.D., performed surgery for the removal of the olecranon 
            bursa of the left elbow.  Following surgery, claimant 
            participated in physical therapy and rehabilitation.  Dr. 
            Hales opined that claimant had a 15 percent impairment of 
            the left upper extremity.  As aforementioned, claimant 
            entered into a full commutation of benefits for a permanent 
            disability equal to 21.75 percent of the left upper 
            extremity.  The disability equaled 54.376 weeks of benefits 
            at the rate of $436.27 per week.
                 On June 4, 1990, claimant returned to work for 
            defendant employer.  He only worked five hours.  Then, he 
            was off work until September 5, 1990, when claimant again 
            returned to the construction field.  After that time, 
            claimant worked intermittently.  He testified he was able to 
            work four to six weeks and then he must take off for a rest 
            period.  Since September of 1990, claimant had earned from 
            $12.62 per hour to $13.40 per hour.
                 Also, since September of 1991, claimant had sustained a 
            separate injury to his back.  The back injury was not a 
            disputed issue in this matter.
                 Claimant participated briefly with the Iowa Department 
            of Vocational Rehabilitation.  His file was eventually 
            closed because claimant neglected to cooperate with his 
            counselor, John Hughes.  The date of the closure was April 
            23, 1991.  Claimant never petitioned to have his file 
                 In July of 1991, claimant worked construction for 
            Loomis Brothers, Inc.  He worked on the following dates:
                      July 1-3
                      July 8-12
                      July 15-18
                 In July of 1991, claimant sustained a work-related 
            sunstroke.  Claimant never returned to work, although he was 
            released as of July 25, 1991.
                                conclusions of law
                 Claimant alleges he is entitled to benefits from the 
            Second Injury Fund.
                 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 
            Page   5
            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 71-1.
                 The Fund is responsible for the difference between 
            total disability and disability for which the employer at 
            the time of the second injury is responsible.  Section 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
            (Iowa 1970).
                 Interest accrues on benefits the Fund pays commencing 
            on the date of the decision.  Second Injury Fund of Iowa v. 
            Braden, 459 N.W.2d 467 (Iowa 1990).
                 A deputy is entitled to determine the nature of 
            claimant's injury and entitlement to compensation from the 
            evidence presented, regardless of particular theories pled.  
            Shank v. Mercy Hospital Medical Center, File No. 719627 
            (Appeal Decision Filed August 28, 1989).
                 In the instant case, claimant has established that he 
            has sustained two separate injuries which have resulted in 
            the loss of the use of his two arms.  It is acknowledged 
            that the two injuries affected claimant's two shoulders, 
            also, the two injuries have affected the respective upper 
            extremities.  See Shirley v. Shirley Ag Service, Inc., File 
            No. 811696 (Appeal Decision filed March 21, 1990).  Here, as 
            in Shirley, supra, claimant's injuries permanently affected 
            the use of each arm.
                 The 1985 injury has resulted in a 10.5 percent 
            impairment of the right upper extremity (Cl. Ex. 6, p. 1).  
            Dr. Neiman has opined that claimant is restricted from 
            working overhead repetitively and from working above the 
            shoulder level.  Additionally, claimant has testified that 
            his right arm tires easily, his reach is restricted and his 
            strength in his right arm is reduced.  Claimant has 
            testified that he experiences pain in his forearm, his 
            fingers, and that he has problems with his grip.  The 1985 
            injury to the right shoulder qualifies as a "first injury" 
            under section 85.64.
                 Claimant has also established that the November 11, 
            1989 work injury qualifies it as a second injury under 
            section 85.64.  Again, the second injury affects the loss of 
            the use of the left arm.  Claimant's treating surgeon has 
            opined that claimant has a 15 percent permanent impairment 
            to the left upper extremity.  The claimant, defendant 
            employer, and defendant insurance carrier agree that 
            claimant has sustained a 21.75 permanent partial disability 
            to the left upper extremity.  Additionally, Dr. Hales has 
            opined that claimant has ulnar nerve problems in the left 
            Page   6
            arm (Cl. Ex. 1, p. 11).  Claimant has testified he has 
            aching in his elbow which extends up his arm by 2 1/2 
            inches, and down his forearm on the back side.  Furthermore, 
            claimant has testified that he has numbness in his arm which 
            extends into his fingers.  Finally, claimant testified that 
            he wears a brace on his left arm whenever he performs duties 
            at work.  Definitely, the loss of the left arm occurs 
            because of the shoulder injury.
                 The remaining issue under discussion is the nature and 
            extent of the Second Injury Fund benefits to which claimant 
            is entitled.
                 The following formula is used to calculate Second 
            Injury Fund benefits:
                           Industrial disability from all impairments:
                       -   weeks preexisting disabilities
                       -    weeks amount of disability for which
                    ______ defendant employer was responsible
                           Total amount of weeks for which the Fund is
                 Claimant is industrially disabled because of the two 
            shoulder injuries.  He cannot engage in work activities 
            where his arms are above shoulder level.  Many of the jobs 
            for which claimant has experience, involve holding tools and 
            chipping hammers above shoulder height.  Claimant has 
            numbness and soreness whenever he lifts more than five 
            pounds.  There is a great deal of lifting involved in 
            laboring positions on the construction site.  Claimant is 
            required to take several weeks off between jobs so he can 
            rest his arms.  He works six to eight weeks before he rests.  
            He is unable to engage in jackhammering for extended periods 
            of time.  The activity causes him pain because of extreme 
            pulling and tugging on his arms.  Claimant is precluded from 
            performing several job tasks.  The preclusion can affect 
            whether claimant is selected for a particular job.  It is 
            doubtful whether claimant can work overtime.
                 Claimant has very little training in anything outside 
            of the construction field.  He is not especially motivated.  
            He has not cooperated with his counselor, John Hughes.  
            Claimant has not returned to school.
                 It is the determination of the undersigned that 
            claimant is industrially disabled.  He has an industrial 
            disability which totals 100 weeks.
                 Using the aforementioned formula, claimant is entitled 
            to the following for Second Injury Fund benefits:
                 100 weeks
                     - 26.250             250 x .1050 = 26.25
                     - 54.376             250 x .2175 = 54.376
            Page   7
                       19.374     Total amount of weeks for which the 
                                  is responsible
                 The fund is properly brought into the suit.
                 THEREFORE, it is ordered:
                 Defendant is liable for nineteen and three seven four 
            (19.374) weeks of Fund benefits commencing on March 7, 1992, 
            the day after the settlement agreement was filed and at the 
            stipulated rate of four hundred eighty-five and 73/100 
            dollars ($485.73) per week.
                 Accrued benefits are to be paid in a lump sum together 
            with statutory interest at the rate of ten percent (10%) per 
            year pursuant to section 85.30, Iowa Code, as amended, and 
            commencing on the date of the filing of this action.
                 Costs are taxed to defendant.
                 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 May, 1992.
                                          MICHELLE A. McGOVERN
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies To:
            Mr Thomas J Currie
            Attorney at Law
            3401 Williams Blvd SW
            P O Box 998
            Cedar Rapids IA 52406
            Mr Robert D Wilson
            Assistant Attorney General
            Hoover State office Building
                                               3200; 3202
                                               Filed May 27, 1992
                                               Michelle A. McGovern
            before the iowa industrial commissioner
            ALBERT KALELL,                :
                 Claimant,                :
            vs.                           :
                                          :      File No. 935422
            ABELL-HOWE,                   :
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
            NATIONAL UNION FIRE           :
            INSURANCE COMPANY,            :
                 Insurance Carrier,       :
            and                           :
                 Defendants.              :
            3200; 3202
            The Second Injury Fund was properly brought into this action 
            as a party-defendant.  Claimant was a construction laborer.  
            He sustained two separate work injuries which affected the 
            loss of the use of two arms.  The Fund was liable for 19.374 
            weeks of benefits at the stipulated rate of $485.73.
            JAMES W. CARR,                :
                 Claimant,                :
                                          :      File Nos. 935598
            vs.                           :                906851
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
            LIBERTY MUTUAL,               :
                 Insurance Carrier,       :
                 Defendants.              :
                              STATEMENT OF THE CASE
                 This decision concerns two proceedings in arbitration 
            brought by James Carr against his former employer, Black 
            Hawk Waste Disposal, and its insurance carrier, Liberty 
            Mutual Insurance Company.  File No. 906851 is based upon an 
            admitted injury of January 5, 1989.  File No. 935598 is 
            based upon an admitted injury of November 8, 1989.  Claimant 
            seeks compensation for additional healing period, permanent 
            disability and payment of medical expenses.  The controlling 
            issue in the case is whether the permanent injuries which 
            the claimant sustained extend into the body as a whole 
            through either head or back or whether they are limited to 
            his right leg.
                 The record in this proceeding consists of testimony 
            from James W. Carr, Patricia Carr, Michael Fogelson, and 
            Dorine S. Ely.  The record also contains claimant's exhibits 
            1 through 16, and defendants' exhibits A1, A2, A3, B, C and 
                                 FINDINGS OF FACT
                 Having considered all the evidence received, together 
            with the appearance and demeanor of the witnesses, the 
            following findings of fact are made:
                 James W. Carr is a 38-year-old married man who 
            graduated from high school in 1970.  He has worked for 
            sixteen different employers, all for relative short periods 
            of time as shown in his answer to interrogatory No. 8 
            (Claimant's Exhibit 10, pages 10-13).  Most of the jobs 
            appear to have consisted primarily of manual labor or 
            cashier-type of work.  Claimant has also accumulated five 
            felony convictions and an aggravated misdemeanor conviction 
            for offenses consisting of forgery, false use of a financial 
            instrument, burglary and theft (Def. Ex. D; Cl. Ex. 10, pp. 
            Page   2
                 Claimant's preinjury medical history is remarkable for 
            problems with persistent headaches, dizziness and blackout 
            spells in 1985, 1987 and 1988 (Cl. Ex. 4, pp. 38, 39, 41, 
            46). A report from the University of Iowa dated September 
            16, 1987, indicates that claimant had been off work due to 
            visual disturbances (Def. Ex. A1).  He has been afflicted 
            with hypertension since he was a teenager and the records 
            indicate that it has not always been well controlled.  The 
            preinjury records do not contain any significant reference 
            to back pain or leg symptoms.  
                 Claimant was injured on January 5, 1989, when he 
            neglected to lower the rails of his refuse truck and they 
            hit a beam, stopping the truck immediately and throwing him 
            forward within the truck.  It appears unlikely that the 
            claimant lost consciousness from that incident as he 
            extracted himself from the vehicle and walked to the John 
            Deere plant medical department where he was treated by the 
            plant nurse.  The ambulance attendants who transported him 
            to the hospital noted head and face lacerations.  A cervical 
            collar was placed on him (Cl. Ex. 2, p. 5).
                 The records from the hospital emergency room note "No 
            L.O.C.," an abbreviation which indicates no loss of 
            consciousness, though he was noted to be slightly dizzy.  He 
            demonstrated facial lacerations, thoracic spine pain and 
            pain in his knee.  While at the hospital, x-rays were taken 
            of his cervical and thoracic spine which showed degeneration 
            at the C6-7 level and mild scoliosis in the thoracic spine.  
            No low back complaints were noted.  His right knee appears 
            to have become increasingly symptomatic while he was at the 
            hospital (Cl. Ex. 2, pp. 1-3 and 7).
                 Claimant returned for a recheck on January 9, 1989, at 
            which time the records show that he continued to have pain 
            and swelling in his knee and, pain in his upper back and 
            headaches.  He exhibited tenderness to palpation in his 
            thoracic spine.  A straight leg raising test was performed 
            which was interpreted as being positive on his right leg at 
            30 degrees.  The diagnosis shown is low back strain with 
            contusion of the knee (Cl. Ex. 2, p. 9).  The report of 
            injury signed by the claimant on January 17, 1989, lists his 
            back as a part of his body which was injured.  It does not 
            specify whether it was the upper, middle or low back (Cl. 
            Ex. 16).  The records indicate that on January 19, 1989, 
            claimant received heat application to his low back (Cl. Ex. 
            4, p. 2).  In the prehearing report, the parties stipulate 
            that claimant's healing period entitlement runs from January 
            6, 1989 through February 5, 1989.  A number of work releases 
            appear in the record including January 23, 1989 (Def. Ex. 
            A2, p. 2), January 30, 1989 (Def. Ex. A2, p. 1), and 
            February 3, 1989 (Def. Ex. 4, p. 3).  The stipulated date of 
            February 5, 1989 is not irreconcilable with the record and 
            is accepted as being correct for marking the end of the 
            claimant's initial healing period entitlement.
                 After returning to work on or about February 6, 1989, 
            Page   3
            claimant entered into a course of treatment with Orthopedic 
            Surgeon Jitu D. Kothari, M.D., for treatment of his right 
            knee.  On February 17, 1989, claimant was noted to have 
            post-traumatic condromalacia of his right patella secondary 
            to the accident of January 5, 1989.  Claimant returned to 
            Dr. Kothari in February 23, 1989, but did not again return 
            to Dr. Kothari until after the November 8, 1989 injury (Cl. 
            Ex. 3, pp. 6 and 7).
                 The notes from claimant's family physician note that on 
            August 17, 1989, he complained of lack of feeling in his 
            left leg, a symptom which had started on the previous day 
            and on August 24, 1989, he reported occasional numbness in 
            his right leg (Cl. Ex. 4, pp. 5 and 6).
                 On November 8, 1989, claimant was again driving his 
            employer's truck.  He stopped at a stop sign and the cab of 
            the truck tipped forward.  There is uncertainty in the 
            record regarding how far forward the truck tipped but it is 
            clear that the claimant did bump his knee in the incident 
            but he denied striking his head.  He phoned his physician on 
            November 8, 1989, reporting the incident and knee pain (Cl. 
            Ex. 4, p. 8). X-rays of right knee were again taken on 
            November 8, 1989 (cl. ex. 2, p. 12). The emergency room 
            record makes record of knee complaints and symptoms but does 
            not mention any back complaints of any nature (Cl. Ex. 2, p. 
                  He was seen by his family physicians on November 17, 
            1989, with complaints of sore throat and coughing.  Neither 
            his knee nor his back are mentioned (Cl. Ex. 4, p. 10).  On 
            November 30, 1989, he was seen by Dr. Kothari.  Dr. Kothari 
            recommended arthroscopic surgery (Cl. Ex. 3, p. 9).  The 
            surgery was performed December 14, 1989 (Cl. Ex. 2, pp. 32 
            and 33).  He was found to have a full thickness articular 
            cartilage flap in the medial femoral condyle and medial 
            facet of the patella of his right knee.
                 After a relatively uneventful period of recuperation 
            following surgery, claimant was released to return to work 
            by Dr. Kothari and also by his family physician effective 
            January 22, 1990 (Cl. Ex. 3, p. 17; Cl. Ex. 4, p. 36).  
            Neither release listed any restrictions on activity.  
            Claimant worked approximately half time for a few days and 
            then again went off work on January 31, 1990.  Claimant saw 
            his family physician, Dennis Harris, D.O., as a follow-up 
            for a gynecomastia condition which had been treated while 
            claimant was off work.  On that January 31, 1990 visit, 
            claimant also complained of increasing numbness and tingling 
            in his right leg.  The note at one point state that no low 
            back pain existed but at another point state that moderate 
            back pain existed.  A straight leg raising test was 
            indicated as being negative.  Distinct weakness of the right 
            thigh musculature was noted.  Dr. Harris recommended that 
            claimant refrain from truck driving (Cl. Ex. 4, p. 12).  It 
            is noted that claimant had worked continuously following his 
            return to work in February 1989 until the day before 
            undergoing the surgery in December 1989.  He was not off 
            Page   4
            work for the November injury until the day the knee surgery 
            was performed.
                 Claimant was first seen by Muhammad Eyad Dughly, M.D., 
            for back complaints on February 13, 1990.  Dr. Dughly 
            provided testing and conservative treatment over the 
            following months until releasing claimant for light duty on 
            June 19, 1990.  The employer apparently had no light duty 
            work available for the claimant.  Claimant did not report 
            for work and was terminated for absenteeism.  EMG tests were 
            essentially negative except for the absence of the "H" 
            response in claimant's right leg (Cl. Ex. 6, p. 26 and 27).  
            That response was subsequently found to be normal in testing 
            done at the University of Iowa Hospitals (Cl. Ex. 7, p. 56; 
            Dep. Ex. 4).  A sensory examination performed June 25, 1990, 
            showed decreased sensation over claimant's entire right leg, 
            right arm and right side of his face (Cl. Ex. 6, p. 46).  
            Dr. Dughly was unable to state whether claimant's headaches 
            were any worse following either accident than they were 
            before the first accident occurred (Cl. Ex. 6, pp. 77 and 
            78).  Dr. Dughly found claimant to have a spondylolisthesis 
            condition which he felt was caused by the accident.  He also 
            stated that if it was caused by the accident, the pain 
            should have started immediately following the accident (Cl. 
            Ex. 6, pp. 83 and 84).  Dr. Dughly stated that claimant had 
            really not made any significant improvement for any of the 
            conditions since the time treatment was started.  He felt 
            that when deposed in July of 1991, no further significant 
            improvement was expected (Cl. Ex. 6, pp. 98, 109-111).  Dr. 
            Dughly felt that claimant had a 3 to 4 percent permanent 
            impairment due to post-traumatic headaches, 5 to 6 percent 
            due to low back, 5 to 6 percent due to right leg numbness 
            and whatever impairment was related to the knee injury 
            itself (Cl. Ex. 6, pp. 68-70).  Dr. Dughly felt that 
            claimant should follow activity restrictions (Cl. Ex. 6, p. 
                 Claimant was also evaluated by Neurologist James M. 
            Doro, D.O.  Dr. Doro found claimant's neurological exam to 
            be essentially normal.  He related claimant's difficulties 
            to a chronic musculoskeletal strain (Cl. Ex. 7, pp. 11, 12, 
            17 and 18).  Dr. Doro felt that claimant's spondylolisthesis 
            was not related to either of the accidents because no 
            corresponding complaints were noted following the accidents 
            (Cl. Ex. 7, pp. 21 and 22).  He felt that claimant's low 
            back problem, whatever it actually was, was not related to 
            either of the accidents (Cl. Ex. 7, pp. 22-26).  He felt 
            that claimant's pains were idiopathic and stated that the 
            majority of people with such complaints are unable to 
            identify an incident which caused them (Cl. Ex. 7, pp. 42, 
            57 and 59).
                 Dr. Kothari expressed no opinion regarding the cause of 
            claimant's back complaints other than to state that the 
            thigh pain was not a result of the knee condition (Def. Ex. 
            C, pp. 24, 25 and 29).  Dr. Kothari related claimant's knee 
            condition to the first accident but stated that the second 
            Page   5
            may have aggravated it (Def. Ex. C, pp. 22 and 23).
                 The record of this case is devoid of any prompt reports 
            of thigh or low back pain of any continuing nature following 
            either of the two accidents.  Any testimony from claimant or 
            his spouse providing an onset of symptoms at or about the 
            time of either accident is not corroborated by any of the 
            medical records.  Further, claimant's testimony and 
            credibility is suspect as evidenced by his criminal 
            convictions as well as his attempt to recover for headaches 
            when the record shows a preexisting course of headaches 
            which appear to have been more aggressively treated 
            medically than the ones of which he now complains.  The 
            objective record is absolutely devoid of any evidence of 
            worsening of any pattern of headaches.  The diagnostic 
            testing regarding his back condition has failed to show any 
            definite objective cause for the complaints.  The MRI 
            results are at best equivocal.  For all these reasons, the 
            evidence from Dr. Doro is preferred over that from Dr. 
            Dughly, despite the fact that Dr. Dughly was a treating 
            physician.  The assessment made by Dr. Kothari regarding the 
            right knee is accepted as being correct.  It is essentially 
            uncontradicted.  It is therefore found that James W. Carr 
            injured his right knee on January 5, 1989, and aggravated 
            that injury on November 8, 1989.  As indicated by Dr. 
            Kothari, he has a 5 percent permanent partial impairment of 
            his right leg.  It is noted that claimant did not obtain 
            further care or treatment for the right knee after having 
            seen Dr. Kothari only twice in early 1989, until after the 
            second injury occurred.  The need for surgery and permanent 
            impairment is therefore attributed to that second injury.  
            Failing to keep medical appointments is strong evidence of a 
            lack of symptoms.  It is found that the existence of 
            permanent disability affecting claimant's right knee was not 
            discoverable based upon the information readily available 
            until subsequent to the second injury which aggravated the 
            The record shows that claimant is married, has one child for 
            whom he is required to pay support, and four stepchildren 
            who reside with him and whom he, together with his wife, 
            supports.  The record does not indicate whether or not 
            claimant pays support for his child or whether he is 
            entitled, under the tax laws, to claim his child as an 
            exemption for income tax purposes.  While claimant's spouse 
            may have earned more than the claimant, it is found that 
            both contributed to the support of the home where they 
            resided and that they were, as joint tax payers, both 
            entitled to claim claimant's stepchildren, the children of 
            his wife, as dependents for income tax purposes.
            Page   6
                              CONCLUSIONS OF LAW
                 The occurrence of both injuries was not disputed, the 
            only dispute is with regard to whether the injuries 
            permanently affected claimant's back or head.
                 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 evidence fails to show any worsening of claimant's 
            headache condition from that which had existed for a 
            considerable amount of time prior to the time he commenced 
            employment with Black Hawk Waste Disposal.  It is therefore 
            concluded that he has failed to prove by a preponderance of 
            the evidence that either accident proximately caused any 
            permanent head injury.
                 That back condition is not quite so clear cut.  
            Nevertheless, the burden of proof rests with the claimant.  
            His testimony is rendered suspect as previously indicated 
            herein.  It is nor corroborated by medical records or 
            reports.  While it is possible that one of the accidents in 
            some way injured his low back, the record fails to show that 
            it is probable that claimant's low back was permanently 
            injured in either of the two accidents.  It is noted that 
            many individuals sustain injuries which are temporary in 
            nature and from which a full recovery occurs.  The one note 
            showing heat being applied to claimant's low back and the 
            diagnosis of low back strain shortly following the first 
            injury is consistent with there being a full recovery from 
            any low back injury in that first accident.  The next record 
            of any back or leg symptoms appears in August of 1989, 
            several months after the initial injury and several months 
            before the second.  No further record of back complaints 
            exists until after the time claimant was released to return 
            to work from the knee injury by Dr. Kothari.  The evidence 
            from Dr. Doro that such back and leg complaints are usually 
            found to be idiopathic has been previously found to be 
            correct.  Claimant has therefore failed to prove by a 
            preponderance of the evidence that his low back condition, 
            whatever it may be, and his leg were proximately caused by 
            either of the two accidents which are the subjects of this 
                 Claimant's recovery period from the first injury has 
            been stipulated to have run from January 6, 1989 through 
            February 5, 1989, a span of 4.571 weeks.  With regard to the 
            second injury, his period of recover runs from December 14, 
            1989 through January 22, 1990, a span of 5.714 weeks, ending 
            when Dr. Kothari released him to return to work.
                 Claimant is also entitled to recover permanent partial 
            Page   7
            disability representing a 5 percent disability of his right 
            leg pursuant to Iowa Code section 85.34(2)"o".  Five percent 
            of 220 weeks is 11 weeks.  Claimant's entitlement to weekly 
            compensation pursuant to Iowa Code sections 85.34(1) and 
            85.34(2) therefore totals 21.143 weeks.
                 The parties stipulated to claimant's rate of earnings 
            and marital status.  The only dispute regarding the rate of 
            compensation is his entitlement to exemptions.  The weekly 
            rate of earnings is the same for both injuries, namely, 
            $325.  The first injury is, however, found under the 1988 
            benefits schedule while the second falls under the 1989 
            benefits schedule.  Under Iowa Code section 85.61(6)"a", the 
            exemptions which are to be used are those exemptions the 
            individual is allowed under the Internal Revenue Code.  
            Since claimant, as a married person, would have been 
            entitled to file a joint income tax return with his spouse 
            he would have been able to claim the four stepchildren as 
            dependents on such a return and they should be allowed when 
            determining his rate of compensation.  There is no evidence 
            that he is entitled to claim his child for whom he has been 
            ordered to pay support as a tax dependent.  Agency 
            precedence has established a presumption that the employee 
            is entitled to an exemption for any natural child for whom 
            the employee is ordered to pay support. Biggs v. Charles 
            Donner, II Iowa Indus. Comm'r Rep. 34 (Appeal Dec. 1982).  
            It is therefore concluded that claimant is entitled to count 
            as exemptions in determining the rate himself, his spouse, 
            his four stepchildren and his one natural child for whom he 
            is ordered to pay support.  The record does not show 
            claimant to have not paid any support or to have abandoned 
            the natural child as would avoid the agency precedent.  The 
            rate of compensation should therefore be computed with seven 
            exemptions.  The rate for the January 5, 1989 injury is 
            $230.78.  The rate for the November 8, 1989 injury is 
                 Inasmuch as claimant has failed to prove that his back 
            condition resulted from either of the two accidents, his 
            expenses listed in claimant's exhibit 5 are not recoverable 
            by him under the provisions of Iowa Code section 85.27.
                 The prehearing reports filed in this proceedings show 
            that claimant has been paid 4.571 weeks of compensation at 
            the rate of $226.31 based upon the January 5, 1989 injury 
            and 23.429 weeks of compensation at the rate of $227.82 
            based upon the November 8, 1989 injury.  When the two claims 
            are combined, it is determined that defendants have 
            previously voluntarily paid more than the amount of their 
            liability in these cases and no further payments are due 
            from defendants to this claimant.
                 Normally, overpayment of compensation in one case 
            cannot be applied toward unpaid compensation in another 
            case.  These two cases, however, are closely related and 
            were consolidated for hearing.  They were both against the 
            same employer and the second is a continuation of the first.  
            They deal with the same parts of the claimant's body and the 
            Page   8
            second injury was an aggravation of the first.  Under these 
            circumstances, it is appropriate to allow an overpayment of 
            weekly compensation in the aggravation case to be applied 
            toward the employer's liability in the case in which the 
            original injury occurred.  Claimant should not get a 
            windfall.  Wilson Foods Corp. v. Cherry, 315 N.W.2d 756 
            (Iowa 1982).
                 THEREFORE, it is ordered that claimant take nothing 
            from  these proceedings.
                 IT IS FURTHER ORDERED that each party shall pay its 
            costs incurred in participation in these proceedings and 
            that neither party obtain any reimbursement or recovery of 
            costs from the other under rule IAC 4.33.
                 Signed and filed this ______ day of July, 1992.
                                          MICHAEL G. TRIER
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies To:
            Mr David W Stamp
            Attorney at Law
            3324 Kimball Ave
            P O Box 2696
            Waterloo IA 50704
            Mr Kevin R Rogers
            Attorney at Law
            528 W 4th St
            P O Box 1200
            Waterloo IA 50704
                                                 1703; 3002; 1900;
                                                 Filed July 30, 1992
                                                 Michael G. Trier
            JAMES W. CARR, 
                                                 File Nos. 935598
            vs.                                            906851
                                              A R B I T R A T I O N
                                               D E C I S I O N
            LIBERTY MUTUAL,     
                 Insurance Carrier,  
            Where there were two injuries, the second being an 
            aggravation of the first, it was held appropriate to allow 
            overpayment of weekly benefits which were voluntarily paid 
            in relation to the second injury to be used to satisfy an 
            underpayment attributable to the first injury.
            3002; 1900
            Claimant was allowed exemptions in computing the rate of 
            compensation for his wife's children (his stepchildren) even 
            though wife's earnings may have been higher than his, and 
            also for his own natural child for whom he was ordered to 
            pay child support though the record did not indicate one way 
            or the other regarding whether he actually paid the support, 
            in part or in full, or was entitled to claim the child and 
            an income tax exemptions.
            Claimant failed to prove that headache complaints and back 
            complaints resulted from either of the two injuries which 
            were the subject of the action.