BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DENNIS CROATT,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                        File No. 938446
 
WELLS BLUE BUNNY QUALITY FOODS, 
 
                                           A P P E A L
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
ATLANTIC MUTUAL INSURANCE CO.,  
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.
 
 
 
                                ISSUES
 
 
 
The issue on appeal is whether a settlement between claimant and an 
 
alleged third-party tort-feasor should be approved.
 
 
 
                           FINDINGS OF FACT
 
 
 
On December 27, 1989 Dennis Croatt (hereinafter claimant) sustained an 
 
injury to his right arm while employed by Wells Blue Bunny Quality 
 
Foods (hereinafter employer).  Claimant was attempting to lubricate an 
 
ice cream freezer when the machine was activated and his arm became 
 
entangled in a flywheel of the machine.  The machine was used by the 
 
employer in its production process.  The machine was manufactured by 
 
Crepaco, Inc., (hereinafter Crepaco).  Claimant suffered severe damage 
 
to his arm that resulted in an amputation between the elbow and the 
 
wrist.
 
 
 
Claimant and his wife brought an action against Crepaco in federal 
 
district court on the theory of product liability.  In a letter dated 
 
April 21, 1993 claimant's counsel expressed a willingness to release 
 
all claims against Crepaco in consideration for payment of the sum of 
 
$1,150,000.  That letter also outlined the basis for arriving at the 
 
amount of the consideration as follows:  Past medical 
 
expenses--$67,266; future medical expenses and prosthesis 
 
replacement--$32,943; past lost wages--$8,000; and past and future 
 
economic loss--$298,028.  The remainder (calculated here to be 
 
$743,763) was unspecified amounts for claimant's past and future pain; 
 
claimant's future permanent loss of bodily function; and claimant's 
 
wife's loss of consortium.  (Defendants' Exhibit 9)
 
 
 
Numerous depositions were taken in the third-party action against 
 
Crepaco.  (Cl. Ex. 1 and Def. Ex. 1)  On September 27, 1993 a 
 

 
 
 
 
 
 
 
 
 
settlement conference was arranged by the federal court.  At the 
 
conclusion of the settlement conference counsel for claimant and his 
 
wife and counsel for Crepaco proposed a settlement in the amount of 
 
$225,000 with $75,000 being paid to claimant and $150,000 being paid to 
 
claimant's wife.  Counsel for employer's workers' compensation insurer 
 
objected to the settlement.  The employer's workers' compensation 
 
insurer had filed a lien in the tort action by claimant and his wife 
 
against Crepaco.  As of January 10, 1994 the employer's workers' 
 
compensation insurer had paid claimant $65,185.23 weekly benefits; 
 
$14,451.01 vocational rehabilitation; and medical $72,724.91.  
 
Excluding any additional medical bills the total workers' compensation 
 
anticipated to be paid was $186,171.91.  (Def. Ex. 13)
 
 
 
In an affidavit the counsel for Crepaco described in detail background 
 
information used to formulate his opinion that a jury could very well 
 
determine that claimant's fault exceeded 50 percent of the total fault 
 
contributing to the accident.  (Cl. Ex. 1, p. 6)  It was also this 
 
counsel's professional opinion that Crepaco had a higher risk of being 
 
held liable for substantial damages for claimant's wife's loss of 
 
consortium claim if the case were to go to trial.  (Cl. Ex. 1, p. 10)
 
 
 
There is ample evidence in the record to find that claimant's 
 
negligence may have contributed to his injury.  (Cl. Ex. 1)  There is 
 
evidence to find that a jury could find that claimant's fault exceeded 
 
50 percent of the total fault contributing to the accident.  (Cl. Ex. 
 
1)  It is safe to assume that a prudent individual would not ordinarily 
 
place his arm inside a machine which could be activated either 
 
automatically or from a remote location without taking steps available 
 
to prevent an unexpected activation of the machine.
 
 
 
If claimant's percentage of fault was greater than the combined 
 
percentage of fault attributed to the defendants in his third-party 
 
action, he would be barred from a recovery by Iowa Code section 
 
668.3(1).  Any damages allowed claimant would be diminished in 
 
proportion to the amount of fault attributable to the claimant.  See 
 
Iowa Code section 668.3(1).  Claimant's spouse's claim of loss of 
 
consortium would not be barred nor reduced by the fault of claimant.  
 
See Nichols v. Schweitzer, 472 N.W.2d 266 (Iowa 1991) and Fuller v. 
 
Buhrow, 292 N.W.2d 672 (Iowa 1980).
 
 
 
                          CONCLUSIONS OF LAW
 
 
 
Iowa Code section 85.22(3) provides:
 
 
 
Before a settlement shall become effective between an employee or an 
 
employer and such third party who is liable for the injury, it must be 
 
with the written consent of the employee, in case the settlement is 
 
between the employer or insurer and such third person; and the consent 
 
of the employer or insurer, in case the settlement is between the 
 
employee and such third party; or on refusal of consent, in either 
 
case, then upon the written approval of the industrial commissioner.
 
 
 
The supreme court has interpreted Iowa Code section 85.22.  In Mata v. 
 
Clarion Farmers Elevator Corp., 380 N.W.2d 425 (Iowa 1986) the court 
 
noted the legislative plan for the reimbursement of employers/insurers 
 
set forth in section 85.22.
 
 
 
We said in Liberty Mutual Insurance Co. v. Winter, section 85.22 
 
"constitute[s] a comprehensive system for allocating the proceeds of a 
 
third-party judgment or settlement between the worker and his employer 
 
or insurer who has paid workers' compensation."  Liberty Mut. Ins. Co. 
 
v. Winter, 385 N.W.2d at 531.  The plain purpose of section 85.22 is to 
 
"prevent double recovery by the injured workercompensation in a law 
 
action as well as workers' compensation for the same injury."  Id. at 
 
532.  The legislature expressly entrusted to the industrial 
 
commissioner the responsibility to protect the rights of employers, 
 
insurers, and employees from unfair and inadequate settlements of 
 
claims.  Iowa Code  85.22(3).
 

 
 
 
 
 
 
 
 
 
 
 
Shirley v. Pothast, 508 N.W.2d 712, 717 (Iowa 1993)
 
 
 
The issue to be resolved is whether the settlement between claimant and 
 
Crepaco, as a third-party tort-feasor should be approved.  The rights 
 
of the employer and its workers' compensation insurance carrier must be 
 
protected.  Settlement of the tort claim must be fair and adequate.
 
 
 
The amount of $75,000 for settlement of claimant's claim is fair.  
 
There was a possibility that claimant might have taken nothing from the 
 
tort claim.  Claimant's fault may have exceeded the fault attributed to 
 
the defendants.  If a jury so found, claimant would be barred from any 
 
recovery.  There was also a possibility that claimant would be found at 
 
fault and his award of damages would be diminished in proportion to his 
 
fault.  Claimant's counsel made a demand for settlement of $1,150,000 
 
for all damages and five months later at a settlement conference a 
 
settlement in the amount of $75,000 for claimant's damages was reached. 
 
 
 
Under the facts of this case a settlement amount of $75,000 was fair.
 
 
 
It must also be decided if the $75,000 settlement amount was adequate.  
 
The tort action settlement allowed $75,000 for claimant and $150,000 
 
for claimant's wife's loss of consortium claim.  As discussed above 
 
there was a possibility that because of the operation of Iowa Code 
 
section 668.3, claimant might take nothing or his claim might be 
 
reduced.  Claimant's wife's claim for loss of consortium would not be 
 
reduced by claimant's fault.  The amount of the settlement demand made 
 
in April 1993 attributed approximately $750,000 to claimant's past and 
 
future pain; claimant's future permanent loss of bodily functions and 
 
claimant's wife's loss of consortium.  Claimant's wife's damages for 
 
loss of consortium would ultimately be determined by the trier of fact 
 
if this matter proceeded to trial.  A portion of the $750,000 related 
 
to the claim for loss of consortium.  The settlement allowing claimant 
 
$75,000 and claimant's wife $150,000 for loss of consortium is a 
 
reasonable allocation given the amount initially demanded and the 
 
relative possibility of recovery.  Also there was the possibility that 
 
there might be no award or a diminished award for claimant's claims for 
 
a portion of the $750,000.  Furthermore, claimant's wife's compensation 
 
for her loss of consortium would not constitute double recovery by 
 
claimant.  It should be noted that the amount of settlement of 
 
claimant's wife's loss of consortium claim is examined only for the 
 
purpose of determining whether the employer's workers' compensation 
 
insurer's rights are adequately protected in the settlement of 
 
claimant's tort claims.
 
 
 
The $75,000 amount to be paid to the claimant will not totally 
 
reimburse the workers' compensation insurer for the amount it may be 
 
obligated to pay to claimant (estimated to be approximately $186,000).  
 
The amount of the settlement does prevent claimant from having a double 
 
recovery to the extent of the settlement.  While the workers' 
 
compensation insurer's total liability may not be reimbursed fully in 
 
this settlement, this is a situation where the workers' compensation 
 
insurer's rights are fairly and adequately protected by the amount of 
 
this settlement.
 
 
 
The settlement under the facts of this case is fair and adequate.  The 
 
settlement adequately protects the employer's workers' compensation 
 
insurer's rights.  The settlement between claimant and Crepaco should 
 
be approved.
 
 
 
WHEREFORE, the decision of the deputy is affirmed.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That the settlement between Crepaco and claimant concerning claimant's 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
December 27, 1989 work injury for the sum of seventy-five thousand and 
 
00/100 dollars ($75,000) with its conditions is hereby approved.
 
 
 
That defendants shall pay the costs of this matter including the 
 
transcription of the hearing.  
 
 
 
Signed and filed this ____ day of January, 1995.                      
 
                               _______________________________
 
                                  BYRON K. ORTON                          
 
                                  INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Daryl L. Hecht
 
Attorney at Law
 
P.O. Box 27
 
Sioux City, Iowa 51102
 
 
 
Mr. James W. Redmond
 
Mr. Daniel Shuck
 
Attorneys at Law
 
P.O. Box 3086
 
Sioux City, Iowa 51102
 
 
 
Mr. N. Richard Willia
 
Attorney at Law
 
P.O. Box 1768
 
Sioux City, Iowa 51102
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 3400
 
                                 Filed January 25, 1995
 
                                 Byron K. Orton
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
DENNIS CROATT,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                       File No. 938446
 
WELLS BLUE BUNNY QUALITY FOODS,
 
                                         A P P E A L
 
     Employer,   
 
                                        D E C I S I O N
 
and         
 
            
 
ATLANTIC MUTUAL INSURANCE CO.,  
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
3400
 
A settlement between claimant and an alleged third party tort feasor 
 
was approved.  The amount of the settlement ($75,000) was fair and 
 
adequate.  There was a possibility under the facts of this case that 
 
claimant's comparative fault would have reduced or barred any recovery 
 
by claimant.  Claimant's wife's loss of consortium claim was also to be 
 
settled (for $150,000).  The loss of consortium claim settlement was 
 
examined but only for the purpose of determining whether the employer's 
 
workers' compensation insurer's rights were adequately protected.  
 
Those rights were adequately protected and claimant's settlement was 
 
approved. 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed March 31, 1994
 
                                                LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                            
 
            DENNIS CROATT,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :        File No. 938446
 
            vs.                             :
 
                                            :       E X P E D I T E D
 
            WELLS BLUE BUNNY QUALITY FOODS, :
 
                                            :         H E A R I N G
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            ATLANTIC MUTUAL INSURANCE CO.,  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                            :
 
            DENNIS CROATT,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :        File No. 938446
 
            vs.                             :
 
                                            :       E X P E D I T E D
 
            WELLS BLUE BUNNY QUALITY FOODS, :
 
                                            :         H E A R I N G
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            ATLANTIC MUTUAL INSURANCE CO.,  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is an expedited proceeding under Industrial 
 
            Commissioner rule 343 IAC 4.44 brought by Dennis Croatt, 
 
            claimant, against Wells Blue Bunny Quality Foods, employer, 
 
            hereinafter referred to as Wells, and Atlantic Mutual 
 
            Insurance Company, insurance carrier, defendants, pursuant 
 
            to Iowa Code section 85.22(3) for the industrial 
 
            commissioner's approval of a settlement against a third 
 
            party, Crepaco.  On January 26, 1994 a hearing was held on 
 
            claimant's petition.  The matter was not concluded at that 
 
            time and additional time was granted to the parties.  The 
 
            parties then agreed to submit the balance of the evidence by 
 
            means of video tape and this was approved.  The matter is 
 
            now considered fully submitted.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 The evidence consists of the transcript of the hearing 
 
            on January 26, 1994; claimant's exhibits 1-10; and 
 
            defendants' exhibits 1-15.    
 
            
 
                                      ISSUE
 
            
 
                 The only issue submitted by the parties is whether or 
 
            not the settlement between claimant and Crepaco is 
 
            reasonable and not for the purpose of defeating a lien by 
 
            Wells arising from workers' compensation benefits paid to 
 
            claimant for an injury on December 27, 1989.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's wife's credibility and those of 
 
            the attorney for Crepaco at issue during the hearing as to 
 
            the true intent behind the settlement.  From their demeanor 
 
            while testifying, Crepaco's attorney and claimant's wife are 
 
            found credible.
 
            
 
                 The problem in this case arises from the fact that not 
 
            only claimant's claim is being settled with Crepaco but as a 
 
            part of a total settlement package, claimant's wife's claim 
 
            against Crepaco for loss of consortium is also being 
 
            settled.  The settlement, as proposed, is the sum of $75,000 
 
            cash for claimant and the sum of $150,000 cash for 
 
            claimant's spouse.
 
            
 
                 On its face, the disparity of settlement amounts 
 
            between claimant and his wife appears unusual as claimant, a 
 
            maintenance man at Wells, was severely injured.  The injury 
 
            of December 27, 1989 occurred when claimant's right arm 
 
            became entangled in a flywheel located on an ice cream 
 
            freezer at Wells while he was attempting to serve the 
 
            freezer.  Claimant suffered devastating damage and 
 
            eventually his arm was amputated between the elbow and 
 
            wrist.  Claimant and his wife then instituted their claims 
 
            against Crepaco, the manufacturer of the freezer. 
 
            
 
                 However, as explained by Crepaco's attorney, whose 
 
            views on this matter are uncontroverted, the larger amount 
 
            to claimant's wife was due to Iowa's law on comparative or 
 
            contributory negligence.  Claimant was subject to this law 
 
            which states that his claim for damages against Crepaco for 
 
            negligence could be defeated if he was more than 50 percent 
 
            negligent in the accident.  On the other hand, claimant's 
 
            wife's claim for loss of consortium was not subject to this 
 
            comparative or contributory negligence limitation.
 
            
 
                 There was ample evidence available that the proper 
 
            procedure on the day of injury was to interrupt all power to 
 
            the motors before servicing the freezer.  Power could be 
 
            interrupted by means of several devices located near the 
 
            location where claimant had to service the freezer.  There 
 
            was a knife switch located only a few steps away.  There was 
 
            an emergency shut off only a few steps away and yet another 
 
            device to stop power to the motors.  Claimant chose instead 
 
            to rely upon production schedules to indicate when the 
 
            machine would be used and subject to turn on.  Apparently 
 
            the freezers in the plant are controlled by technicians 
 
            located on the floor above and on-board computers.
 
            
 
                 Defendants offered evidence that supervisors and fellow 
 
            employees at times did not use the power cut-off switches 
 
            and that warning signs were not in place.  Also, that 
 
            Crepaco's training of operators did not cover power 
 
            interruption procedures.  Defendants pointed out that use of 
 
            micro switches that would automatically shut off power 
 
            whenever protective hoods were removed for service was a 
 
            cheap and easy solution to reduce the hazard and use of such 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            switches was routine with other freezer makers.  However, 
 
            the fact remains, as admitted by fellow employees, that the 
 
            best and safest precaution was to interrupt the power.  
 
            Defendants failed to show that there was no risk that 
 
            claimant could not be found more than 50% at fault.  
 
            Certainly, Crepaco's attorney admitted to some liability 
 
            exposure and this is the reason for the $75,000 offer.  
 
            Given the problems with Iowa's comparative fault approach, 
 
            such an offer was not unreasonable.
 
            
 
                 Finally, defendants failed to show that the $150,000 
 
            settlement for claimant's spouse is unreasonably high.  
 
            Admittedly, it is conditional upon approval of claimant's 
 
            settlement.  However, she was not subject to the comparative 
 
            fault defense.  Ample evidence was available to show that 
 
            she suffered a great deal from this incident.  The trauma to 
 
            her loved one was very troublesome for her.  The time and 
 
            energy she consumed during the recovery process was 
 
            extremely demanding.  She was compelled to not only maintain 
 
            her own job but care for claimant's serious injury as well.  
 
            She also suffered mental depression and extreme stress over 
 
            the incident itself as well as from the loss of claimant's 
 
            assistance at home and in the operation of their farm.  
 
            Admittedly, claimant has expanded his operations since the 
 
            injury but this is due to the availability of help from his 
 
            three sons.  The proposed settlement of this consortium 
 
            claim is found reasonable.
 
            
 
                 Consequently, the settlement offer of $75,000 to 
 
            claimant conditioned upon a settlement of the spouse's 
 
            consortium claim for $150,000 is reasonable and not for the 
 
            purpose of defeating Well's lien and it should be approved.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Under Iowa Code section 85.22(3), if the employer 
 
            refuses to consent to a third party settlement between the 
 
            claimant and a third party, this agency may approve the 
 
            settlement in the exercise of our discretion.  From the 
 
            above findings, it is held that the settlement, as proposed, 
 
            is not unreasonable and not for the purpose of defeating the 
 
            lien of Wells.  Therefore, it will be approved.
 
            
 
                                      ORDER
 
            
 
                 1.  The settlement between Crepaco and claimant 
 
            concerning claimant's injury at Wells on December 27, 1989 
 
            for the sum of seventy-five thousand and no/l00 dollars 
 
            ($75,000.00) with its conditions including the settlement of 
 
            the claim of his wife for one hundred fifty thousand and 
 
            no/l00 dollars ($150,000.00) is hereby approved.
 
            
 
                 2.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33..
 
            
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Daryl L. Hecht
 
            Attorney at Law
 
            614 Pierce Street
 
            P O Box 27
 
            Sioux City, Iowa  51102
 
            
 
            Mr. James W. Redmond
 
            Mr. Daniel Shuck
 
            Attorneys at Law
 
            701 Pierce Street, STE 200
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. N. Richard Willia
 
            Attorney at Law
 
            501 Pierce Street  STE 400
 
            P O Box 1768
 
            Sioux City, Iowa  51102
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         TERRANCE J. MACINERNEY,       :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 938491
 
         TRI-TEK INDUSTRIAL,           :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         FIDELITY & CASUALTY,          :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Terrance J. MacInerney, against his employer, Tri-Tek 
 
         Industrial, and its insurance carrier, Fidelity & Casualty 
 
         Insurance Company.  The case was heard on January 9, 1992, in 
 
         Dubuque, Iowa at the Dubuque County courthouse.  The record con
 
         sists of the testimony of claimant.  The record also consists of 
 
         the testimony of Joe MacInerney, father of claimant; Jim Nichols, 
 
         friend; David Selle, former supervisor of claimant; Jeffrey 
 
         Rowling, former foreman; Colin Kelly, former employee of 
 
         defendant-employer; and Mary Katherine Birds, owner of 
 
         defendant-employer.  The record also consists of claimant's 
 
         exhibits 1, 2 and 3 and defendants' exhibits A-Q.
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) Whether claimant sus
 
         tained an injury which arose out of and in the course of his 
 
         employment; 2) whether there is a causal relationship between the 
 
         alleged injury and the disability; 3) whether claimant is enti
 
         tled to temporary disability/healing period benefits or permanent 
 
         partial disability benefits; and 4) whether claimant is entitled 
 
         to medical benefits pursuant to section 85.27 of the Iowa Code.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 36 years old.  He is married but separated from 
 
         his wife.  Claimant is the father of an eight-year-old son.  
 
         Claimant commenced his employment with defendant-employer in 
 
         1989.  He was hired to paint and sandblast at $8.00 per hour.
 
         
 
              Defendant-employer is engaged in painting and sandblasting.  
 
         The company sandblasts and paints parts for John Deere tractors.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         It also provides painting and sandblasting services in the con
 
         struction industry.  The company also contracts to paint water 
 
         towers.
 
         
 
              Claimant dropped out of the eleventh grade in high school.  
 
         As of the date of the hearing, claimant had not obtained a GED.  
 
         He had no other training.
 
         
 
              Claimant had held a number of jobs prior to his employment 
 
         with defendant-employer.  Many of the positions were in the con
 
         struction industry.  Claimant worked as a manual laborer, a 
 
         roofer and a well digger.
 
         
 
              On November 17, 1989, Ms. Bird telephoned and asked claimant 
 
         to come into the shop that morning and to sandblast parts.  
 
         However, claimant did not arrive until noon on that day.  A 
 
         co-employee, Colin Kelly, assisted claimant in unloading John 
 
         Deere parts from a truck.  Then Mr. Kelly left claimant to work 
 
         on the project alone.  Claimant operated a high pressure hose.  
 
         He also dumped 100 pound bags of sand into a hopper which was 
 
         about five feet high.
 
         
 
              The job necessitated personal protective equipment.  
 
         Claimant wore a hood and a charcoal filtered mask.  The hood was 
 
         fitted with glass.  Claimant was also required to stand in a 
 
         booth in order to complete his tasks.
 
         
 
              Claimant testified the job was a two person job but he 
 
         worked alone for about an hour before he began experiencing pains 
 
         in his chest and back.  He testified that he then fell to his 
 
         knees in cramps while he was sweating profusely.  Claimant testi
 
         fied he went to the back of the building and sat.  After several 
 
         minutes, he stated he went to the office where he sought help.
 
         
 
              Ms. Bird testified to some different facts.  She testified 
 
         the job was for one person and that claimant started the 
 
         machine's compressor and after only a few minutes she heard the 
 
         compressor shut down.  She also testified she saw claimant walk 
 
         to his car and sit in it for 15 to 20 minutes.  Then she stated 
 
         claimant came into the office, sat in a chair and requested 
 
         medical assistance.
 
         
 
              Dennis Bird then transported claimant to a local chiroprac
 
         tor who referred claimant to the hospital emergency room where an 
 
         electrocardiogram showed evidence of an acute anterior myocardial 
 
         infarction.  (Defendants' exhibit A, page 2)  Claimant was 
 
         treated by J. S. Chapman, M.D.  He referred claimant to the 
 
         University of Iowa Hospitals and Clinics.
 
         
 
              At the University of Iowa, Richard E. Kerber, M.D., a cardi
 
         ologist, treated claimant.  Dr. Kerber diagnosed claimant's con
 
         dition as:  1) anterior wall myocardial infarction on November 
 
         17, 1989, 2) mistral stenosis, mild.  (Ex. 1, p. 6)
 
         
 
              Claimant was discharged from the hospital on November 28, 
 
         1989.  He returned to the university of Iowa for follow up treat
 
         ment.  In his letter of March 8, 1990, Dr. Kerber opined the fol
 
         lowing relative to claimant's condition and restrictions:
 
         
 
              In addition, Mr. MacInerney has an abnormality of one 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              of the heart valves, presumably resulting from an ear
 
              lier attack of rheumatic fever and producing a condi
 
              tion known as mitral stenosis, a narrowing of the 
 
              mitral valve.  The contribution of this problem to his 
 
              heart attack is uncertain, but mitral stenosis is not 
 
              generally believed to be related to stress.
 
         
 
              Thus, in sum it is fair to say that Mr. MacInerney's 
 
              heart attack may have been precipitated in part by his 
 
              strenuous physical labor, but it is not generally held 
 
              that such physical labor is a cause of the underlying 
 
              heart disease which ultimately produced the heart 
 
              attack.  In any case, Mr. MacInerney has been advised 
 
              strongly not to continue performing such strenuous 
 
              physical labor because of the concern that further 
 
              heart attacks or heart damage may be helpful....
 
         
 
         (Ex. 1, p. 3)
 
         
 
              In December of 1989, the family physician, Dr. Chapman, 
 
         advised claimant to participate in vocational rehabilitation.  
 
         Dr. Chapman wrote in his office note for December 29, 1989 that:
 
         
 
              RECOMMENDATIONS:  Patient instructed to contact 
 
              Vocational Rehab for vocational training to equip him 
 
              to do something less strenuous than his present line of 
 
              work.
 
         
 
         (Defendants' Ex. C, p. 21)
 
         
 
              Claimant did not participate in vocational rehabilitation.  
 
         He remained home for six to seven months.  Approximately one year 
 
         after his heart attack, claimant obtained employment at a local 
 
         discount store where he was required to stock shelves and drive a 
 
         fork lift truck.  Claimant held the job for 11 months.  He earned 
 
         $4.25 per hour but he testified he terminated his position 
 
         because of the lifting involved, and because he was refused a 
 
         raise in pay.
 
         
 
              At the time of the hearing, claimant was collecting scrap 
 
         metal.  He was also performing odd jobs and gardening at a 
 
         funeral home in exchange for rent.  His duties at the home 
 
         included staining, stripping, gardening and shoveling sidewalks.
 
         
 
                                conclusions of law
 
         
 
              There is no dispute that claimant sustained a heart attack 
 
         while he was working at defendant-employer's establishment, and 
 
         while claimant was sandblasting John Deere parts.  At the time of 
 
         the heart attack, claimant was performing his assigned duties.  
 
         The crucial question here is whether claimant's condition is 
 
         causally related to claimant's work duties.
 
         
 
              In a workers' compensation case, causal connection must be 
 
         established.  The claimant has the burden of proving by a prepon
 
         derance 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 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         possible.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
         (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
         297 (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 circum
 
         stances.  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).
 
         
 
              In a case where a heart attack is at issue, claimant must 
 
         establish the requisite causal connection between the heart 
 
         attack and the work activity.  Iowa claimants with preexisting 
 
         circulatory or heart conditions are permitted, upon proper medi
 
         cal proof, to recover workers' compensation benefits where the 
 
         employment contributes something substantial to increase the risk 
 
         of injury or death.  The employment contribution must take the 
 
         form of an exertion greater than nonemployment life.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The comparison, 
 
         however, is not with the employee's usual exertion in employment, 
 
         but with exertions of normal nonemployment life of this or any 
 
         other person.  Id.  These exertions may be physical or emotional.  
 
         Swalwell v. William Knudson & Son, Inc., II Iowa Industrial 
 
         Commissioner Report 385 (Appeal Decision 1982).  The Sondag rule 
 
         is favored by Professor Larson in his treatise on workers' com
 
         pensation.  See 1A Larson Workmen's [sic] Compensation Law, sec
 
         tion 38.83 at 7-172.  According to Professor Larson, the causa
 
         tion test is a two-part analysis.  First, medical causation must 
 
         be established.  That is, medical experts must causally relate 
 
         the alleged stress, whether emotional or physical, to the heart 
 
         injury.  Second, legal causation must be established.  That is, 
 
         the fact finder must determine whether the medically-related 
 
         stress is more than the stress of everyday nonemployment life.
 
         
 
              With respect to the case at hand, claimant has not demon
 
         strated that his employment has contributed substantially to 
 
         increase the risk of injury.  He has not established medical cau
 
         sation.  First of all, claimant had several risk factors for 
 
         heart disease which were unrelated to his work environment.  
 
         Claimant had a family history of heart disease.  His father had 
 
         suffered a heart attack.  Claimant's maternal uncle had a heart 
 
         attack.  Claimant was a heavy smoker for 12 years or more.  There 
 
         was evidence that claimant had smoked two packs of cigarettes per 
 
         day.  Thirdly, claimant had a history of alcohol abuse.  He was 
 
         hospitalized shortly before the heart attack for substance abuse.  
 
         Claimant suspended his treatment.  Next, claimant had been under 
 
         severe emotional distress because of a broken relationship with 
 
         his significant other.  Claimant had made several futile efforts 
 
         to reconcile with her but the woman had resisted his efforts.  
 
         Claimant had expressed his unhappiness with the broken relation
 
         ship to co-employees.  There was evidence in the medical records 
 
         that claimant had attempted suicide by taking over the counter 
 
         sleep medication.  The suicide attempt was several weeks prior to 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         the heart attack.  Claimant testified under cross-examination 
 
         that he had been depressed because of the loss of a job, having 
 
         no money, and because of the death of his mother one year prior.
 
         
 
              The medical evidence does not support a causal connection 
 
         between the heart attack and claimant's work environment.  
 
         Richard Kerber, M.D., opined in his deposition that:
 
         
 
              Q. Can you quantify the causal relationship for me, a 
 
                 fifty-one percent or sixty percent?  Can you quan
 
                 tify that if you have the ability?
 
         
 
              A. That's very difficult because I think either condi
 
                 tion alone, that is he was fine with presumably no 
 
                 preexisting heart disease that wasn't causing his 
 
                 symptoms, so it can't be that alone.  The job itself 
 
                 if he didn't have an existing heart problem wouldn't 
 
                 cause symptoms.  If you push me I would perhaps say 
 
                 it's a 50/50 deal, but that's a very rough judgment.
 
         
 
                 And it's sort of a subjective judgment rather than 
 
                 objective and I don't think any physician in the 
 
                 world could give you a more exact balance of the 
 
                 contribution than what I have just said.
 
         
 
         (Joint Ex. 3, p. 14, lines 7-20)
 
         
 
              Dr. Kerber, the treating physician, did not opine that 
 
         claimant's employment contributed substantially to increase the 
 
         risk of injury.  His opinion was also given less weight by the 
 
         undersigned because he did not have all of the facts available to 
 
         him.  Until the deposition, Dr. Kerber had no knowledge of 
 
         claimant's substance abuse, nor was the cardiologist aware that 
 
         claimant had attempted suicide because of severe emotional dis
 
         tress.
 
         
 
              The medical opinions of the other two evaluating physicians 
 
         do not support a causal connection between the heart attack and 
 
         claimant's employment.  James E. Davia, M.D., opined that:
 
         
 
              A. My opinion is that the physical exertion was not 
 
                 causally related to the myocardial infarction.  I 
 
                 believe that myocardial infarction could have 
 
                 occurred when he was sleeping or when he was sitting 
 
                 in a chair reading a newspaper or walking his dog, 
 
                 if he had one, or any sedentary type of activity, or 
 
                 lying down taking a nap, or any mild type of activ
 
                 ity, and the fact that it occurred during physical 
 
                 exertion was a coincidence and not causally related.
 
         
 
         (Ex. P, p. 24, l. 18 through p. 25, l. 2)
 
         
 
              Then there is the opinion of Paul From, M.D., an internist.  
 
         In his deposition he opined that:
 
         
 
              Well, I think that there's -- that the myocardial 
 
              infarction he sustained on that day in November of '89 
 
              is due more to the risk factors that he had, rather 
 
              than to his work.  I would relate it as, say, 75 per
 
              cent due to risk factors and 25 percent due to the 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
              work.
 
         
 
         (Ex. Q, p. 32, ll. 20-25)
 
         
 
              Part one of the test has not been met. Claimant has not 
 
         established medical causation.  The undersigned is not required 
 
         to address part two of the test.  Finally, claimant was viewed as 
 
         less than credible.  His rendition of the events on November 17, 
 
         1989, was not substantiated by other witnesses.  Claimant denied 
 
         he was a heavy smoker and drinker.  Other witnesses refuted his 
 
         testimony.  Claimant stated his job was a two person job, other 
 
         witnesses said, the job was for only one person.  The undersigned 
 
         has determined that claimant was less credible than other 
 
         witnesses.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of April, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Darin S. Harmon
 
         Attorney at Law
 
         100 West 12th Street
 
         Box 703
 
         Dubuque, Iowa  52001
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1108.10
 
            Filed April 30, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRANCE J. MACINERNEY,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 938491
 
            TRI-TEK INDUSTRIAL,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            FIDELITY & CASUALTY,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1108.10
 
            Benefits were not awarded to claimant who sustained a heart 
 
            attack on November 17, 1989, while he was engaged in 
 
            sandblasting.  Claimant could not establish the requisite 
 
            causal connection.  Medical testimony did not support 
 
            claimant's position.  At best, claimant's work condition 
 
            only contributed 50 percent to the work injury.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT WILSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 938502
 
            FIRESTONE TIRE AND RUBBER,    
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
            This is a proceeding in arbitration brought by Robert 
 
            Wilson, claimant, against Firestone Tire and Rubber, 
 
            employer, and Cigna, insurance carrier, and Second Injury 
 
            Fund of Iowa, defendants, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on July 31, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on October 
 
            12, 1993, in Des Moines, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The claimant 
 
            was present and testified.  Also present and testifying was 
 
            Mike Ables.  The documentary evidence consists of claimant's 
 
            exhibits 1 through 55, employer's exhibits B and C and 
 
            Second Injury Fund exhibits AA, CC through FF.  
 
            
 
                                      ISSUES
 
            
 
            Pursuant to the hearing report and order approving same 
 
            dated October 12, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
            .Whether claimant's disability, which is a scheduled 
 
            member disability, is to his hand or arm; and
 
            .Whether claimant is entitled to Second Injury Fund 
 
            benefits as provided in Iowa Code section 85.64.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The undersigned has carefully considered all the testimony 
 
            given at the hearing, arguments made, evidence contained in 
 
            the exhibits herein, and makes the following findings:
 
            Claimant was born on June 14, 1944, and graduated from high 
 

 
            
 
            Page   2
 
               
 
            
 
            
 
            school in 1962.  He commenced working for Firestone on 
 
            December 19, 1965.  He worked two months in the mill room 
 
            and one month in the warehouse loading trucks.  He then 
 
            worked as a utility man in the passenger curing department 
 
            for approximately five years.  Subsequently he was assigned 
 
            to heavy duty curing for one year, returned to the warehouse 
 
            loading trucks and driving a fork lift, worked as a janitor 
 
            for two years and in heavy duty final inspection for 
 
            approximately eight years.  While in heavy duty final 
 
            inspection he incurred an injury to his right lower 
 
            extremity.  Since 1982 he has worked in the banbury 
 
            department doing most of the jobs at one time or another.  
 
            He currently is a pigment storage attendant. 
 
            
 
            The pertinent medical evidence of record reveals that 
 
            claimant sustained a work-related injury to his right lower 
 
            extremity in 1979.  He underwent surgical repair of a torn 
 
            Achilles tendon by Donald W. Blair, M.D.  He experienced 
 
            complications from surgery and resistant healing.  
 
            Eventually, he underwent a skin flap and his condition 
 
            healed.  On July 14, 1980, Dr. Blair gave him a permanent 
 
            functional impairment rating of 25 percent to the right 
 
            lower extremity (exhibit 55, page 84). 
 
            
 
            On July 31, 1989, claimant caught his right wrist between a 
 
            fork lift and an elevator control column.  An abrasion to 
 
            the anterior right wrist was noted.  Claimant complained of 
 
            right wrist pain and numbness to the fingers.  He was 
 
            transferred to Iowa Methodist Medical Center (ex. 3).
 
            Claimant was treated in the emergency room at Iowa Methodist 
 
            Medical Center and a splint was applied to his right wrist.  
 
            He was discharged the same day (exs. 13-15).
 
            
 
            On August 31, 1989, claimant was referred by James Blessman, 
 
            M.D., company physician, for nerve conduction studies at 
 
            Iowa Methodist Medical Center, to determine the etiology of 
 
            his right hand pain, weakness and numbness.  The results 
 
            were consistent with an injury to the right median nerve at 
 
            the level of the distal forearm or wrist (ex. 16).
 
            
 
            Dr. Blessman then referred claimant to Douglas R. Koontz, 
 
            M.D.  Dr. Koontz reported to Dr. Blessman on September 19, 
 
            1989, that claimant appears to have some type of median 
 
            nerve injury which is persistent with primarily numbness and 
 
            weakness, although not much pain.  He recommended some 
 
            physical therapy for hand strengthening and range of motion 
 
            and Motrin (ex. 24).
 
            
 
            Dr. Koontz saw claimant on October 20, 1989, for a follow-up 
 
            evaluation.  He noted that claimant's occupational therapy 
 
            treatments had helped him significantly.  Although claimant 
 
            was not having any pain now, he continued to complain of 
 
            significant numbness.  On examination, he had a 50 percent 
 
            hypesthesia to touch of the thumb, index and middle finger 
 
            on the right with hyperpathia to pinprick of the index and 
 
            middle finger on that side.  He also had a remarkedly 
 
            positive Tinel's over the right wrist and a positive 
 
            Phalen's as well.  Dynamometer testing of grip strength 
 
            showed the left to be 180 and the right to be 220 which was 
 

 
            
 
            Page   3
 
             
 
            
 
            improved over the previous visit (ex. 17-18, 25).  
 
            An occupational therapy progress note dated November 15, 
 
            1989, states that claimant's range of motion for the right 
 
            hand was within normal limits except for thumb MP flexion 
 
            and extension.  It also notes that his right upper extremity 
 
            strength has improved but his fine motor skills remain 
 
            decreased due to poor thumb opposition and sensory loss (ex. 
 
            19).
 
            
 
            Claimant saw Dr. Koontz on November 20, 1989.  He presented 
 
            with persistent numbness in the median nerve distribution.  
 
            A repeat EMG was ordered (ex. 26).  EMG and nerve conduction 
 
            studies were performed on November 24, 1989.  The results 
 
            revealed right median nerve injury at the wrist (exs. 
 
            20-22).  Based on these findings, Dr. Koontz recommended 
 
            surgical decompression of the median nerve at the wrist (ex. 
 
            27).  This was performed in early December 1989 (ex. 28).  
 
            On December 18, 1989, Dr. Koontz released claimant to light 
 
            duty (ex. 28).  Claimant testified that light duty activity 
 
            consisted of operating a fork lift.  Claimant was released 
 
            by Dr. Koontz for full duty with no restrictions as of March 
 
            5, 1990.  Dr. Koontz stated, "I think that he will be able 
 
            to tolerate his usual job although I don't think that he 
 
            will ever be able to do a type of work such as tirebuilding 
 
            that would potentially make all of this worse once 
 
            again...." (ex. 30).  
 
            
 
            Claimant testified that on March 5, 1990, he returned to his 
 
            regular job as a pigment storage attendant which requires 
 
            lifting 50-pound bags and cutting them open with a knife.  
 
            Upon releasing claimant to return to regular duty, Dr. 
 
            Koontz determined that due to persistent weakness, numbness 
 
            and pain to the right upper extremity, claimant has a 28 
 
            percent permanent partial disability (ex. 30).  Being 
 
            dissatisfied with this determination, defendants requested a 
 
            second opinion from Arnis B. Grundberg, M.D., on August 14, 
 
            1990.  Dr. Grundberg's reported impression was right carpal 
 
            tunnel syndrome, post-operative state with residuals.  Using 
 
            the AMA Guides to the Evaluation of Permanent Impairment, 3d 
 
            ed., and utilizing tables 10, 11 and 14, he offered a 12 
 
            percent impairment rating to the right hand (ex. 33).  
 
            Dr. Grundberg's deposition was taken on February 16, 1993.  
 
            Dr. Grundberg testified that he is a board certified 
 
            orthopedic and hand surgeon.  He stated he examined claimant 
 
            at the request of Dr. Blessman on August 14, 1990.  At the 
 
            time of his examination, he found no loss of motion but did 
 
            find decreased sensation in the thumb, index and long 
 
            fingers.  On examination, he found claimant's numbness or 
 
            nerve involvement to be mild.  He found no problem above the 
 
            wrist.  The impairment rating of 12 percent to the right 
 
            hand was based on mild decreased sensation and mild weakness 
 
            which reflects the nerve involvement previously described.  
 
            Dr. Grundberg stated that he reviewed claimant's medical 
 
            records (deposition ex. B) and in particular, Dr. Koontz' 
 
            report of March 2, 1990, and found nothing in those records 
 
            that would change his opinion (ex. 34).
 

 
            
 
            Page   4
 
              
 
            
 
            In response to cross-examination by claimant's attorney, Dr. 
 
            Grundberg explained that the median nerve is deep in the 
 
            wrist and extends into the hand and supplies the feeling to 
 
            the thumb, index, long and part of the ring finger.  He 
 
            stated that the nerve extends past the area of the wrist and 
 
            goes down to the elbow.  He indicated that when claimant 
 
            presented to him his complaints were primarily of numbness 
 
            and not pain.  Nevertheless, claimant's complaints of pain 
 
            played a part in his rendering a 12 percent impairment 
 
            rating (ex. 34).
 
            
 
            On April 2, 1993, Dr. Koontz discussed Dr. Grundberg's 
 
            finding in a letter to claimant's attorney.  He stated then 
 
            when he gave claimant the 28 percent impairment rating he 
 
            felt that claimant's hand injury affected his entire arm.  
 
            However, it was obvious that claimant's condition had 
 
            improved by the time he saw Dr. Grundberg and his rating 
 
            reflects that improvement (ex. 31).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The first issue to be determined is whether claimant's 
 
            impairment is to his hand or arm.  Pursuant to Iowa Code 
 
            section 85.34(2)(l) and (m), compensation for the loss of a 
 
            hand or arm is 190 weeks and 250 weeks, respectively.
 
            On March 2, 1990, Dr. Koontz examined claimant and noted 
 
            that he had a negative Tinel's in the wrist but continued to 
 
            have some soreness in the base of the thumb when he grips 
 
            anything and some tenderness or pain over the scar.  Also 
 
            noted was good range of motion in the wrist, thumb and 
 
            fingers.  Dr. Koontz reported, "I think that he has suffered 
 
            a permanent injury to the median nerve because of the injury 
 
            and this is confirmed by what I saw intra-operatively with 
 
            flattening and tethering of the median nerve with gliosis 
 
            secondary to pressure and scar tissue formation."
 
            Dr. Grundberg examined claimant on August 14, 1990.  He 
 
            noted that claimant crushed his right wrist at the level 
 
            just proximal to the carpal tunnel and underwent 
 
            decompression of the carpal tunnel.  On examination he found 
 
            no loss of motion but did find decreased sensation in the 
 
            thumb, index and long fingers.  He found no problem above 
 
            the wrist only mild numbness and weakness.
 
            
 
            At the hearing, claimant testified that he experiences pain 
 
            in his right forearm.  Dr. Grundberg noted that claimant had 
 
            no significant complaints of pain when he saw him.  Dr. 
 
            Koontz released claimant to return to regular work duties 
 
            with no restrictions.  Claimant testified that his job as a 
 
            pigment storage attendant requires lifting and cutting open 
 
            50-pound bags.  He has performed this job since March 5, 
 
            1990, without medical restriction or accommodation by 
 
            employer.
 
            
 
                 It is the task of physicians to determine impairment 
 
            ratings.  Impairment ratings are important criteria in the 
 
            evaluation of scheduled member injuries.  Rule 343 IAC 2.4 
 
            provides that impairment ratings made pursuant to the Guides 
 
            to the Evaluation of Permanent Impairment can have the 
 
            effect of prima facie evidence of permanent impairment.  All 
 

 
            
 
            Page   5
 
              
 
               
 
            impairment ratings are weighed in the determination of 
 
            scheduled member permanent disability.  Although the 
 
            industrial commissioner is obligated to give consideration 
 
            to all of the impairment ratings he is not obligated, 
 
            restricted or limited to making a scheduled member award in 
 
            the same amount as one of the impairment ratings.  
 
            
 
                 The task of the industrial commissioner is to determine 
 
            "loss" Iowa Code section 85.34(2)(s).  The term "loss" as 
 
            used in the Code has been determined to also mean "loss of 
 
            use" Moses v. National Union Coal Mining Co., 194 Iowa 819, 
 
            194 N.W. 746 (1921).  The purpose of determining loss of use 
 
            is because the industrial commissioner is charged with the 
 
            ultimate responsibility of determining permanent disability.  
 
            "Compensation for permanent disabilities ... shall be 
 
            payable to an employee as provided in this section."  Iowa 
 
            Code section 85.34 (first unnumbered paragraph).  The award 
 
            of the industrial commissioner should be upheld on appeal if 
 
            it is supported by substantial evidence.
 
            
 
                 As pointed out by Guides to the Evaluation of Permanent 
 
            Impairment, Chapter 1, Concepts of Impairment Evaluation, 
 
            paragraph 1.1 "As used in the Guides, "impairment" means an 
 
            alteration of an individual's health status that is assessed 
 
            by medical means, "disability," which is assessed by 
 
            nonmedical means, is an alteration of an individual's 
 
            capacity to meet personal, social, or occupational demands 
 
            or statutory or regulatory requirements."  Thus, doctors 
 
            determine impairment, the industrial commissioner determines 
 
            loss or loss of use and permanent disability taking into 
 
            consideration the impairment ratings of the physicians.
 
            
 
                 The impairment rating with the greatest weight in this 
 
            case is the determination made by Dr. Grundberg.  Dr. 
 
            Grundberg is a board certified orthopedic surgeon with over 
 
            20 years of experience and a subspecialty in hand surgery.  
 
            There is no curriculum vitae for Dr. Koontz.  All we know is 
 
            that he is an neurosurgeon  A doctor's experience, expertise 
 
            and board certification may accord his testimony greater 
 
            weight.  Reiland v. Palco, Inc., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 56 (1975); Dickey v. 
 
            ITT Continental Baking Co., Thirty-fourth Biennial Report of 
 
            the Industrial Commissioner 89 (1979).  Thus, the long 
 
            experience, expertise and board certification of Dr. 
 
            Grundberg is preferred over Dr. Koontz.  Likewise, it should 
 
            be added that his evaluation seems to be the most realistic 
 
            and comports best with all of the other evidence in the 
 
            case.  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 In the determination of either loss or loss of use and 
 
            permanent disability the industrial commissioner can 
 
            consider any evidence so long as earning capacity is not 
 
            considered Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).  
 
            
 
                 Likewise, the industrial commissioner may take into 
 
            consideration the agency's experience, technical competence 
 
            and specialized knowledge in the evaluation of the evidence.  
 

 
            
 
            Page   6
 
               
 
            
 
            
 
            Iowa Administrative Procedure Act 17A.14(5).  
 
            
 
                 The industrial commissioner may consider loss of grip 
 
            strength in the determination of loss of use and permanent 
 
            disability.  Likewise, the industrial commissioner may 
 
            consider the fact that claimant was placed on a permanent 
 
            light duty work status by her physician who bears some 
 
            responsibility for the success or failure of her treatment.  
 
            Both of these facts relate to claimant's physical loss of 
 
            use and physical permanent disability of her hands and arms.  
 
            These factors are not considered as industrial disability 
 
            factors bearing on  claimant's loss of earning capacity.  
 
            Soukup, 222 Iowa 272, 268 N.W. 598 (1936).  
 
            
 
                 Wherefore, based upon the foregoing evidence, 
 
            particularly the absence of physical restrictions and 
 
            claimant's ability to perform the same job he was performing 
 
            at the time of his injury, it is determined that claimant 
 
            has sustained a 12 percent permanent impairment to his right 
 
            hand and is entitled to 22.8 weeks of permanent partial 
 
            disability benefits pursuant to Iowa Code section 
 
            85.34(2)(l).
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to Second Injury Fund benefits.
 
            
 
                 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).
 
            
 
                 The record clearly establishes that claimant sustained 
 
            a first injury to his right leg on July 14, 1980.  In a 
 
            settlement agreement claimant received 55 weeks (220 x 25 
 
            percent) of permanent partial disability benefits.  Claimant 
 
            sustained a second injury to his right hand on July 31, 
 
            1989, arising out of and in the course of employment with 
 
            employer.  He received a 12 percent permanent partial 
 
            disability rating and is entitled to receive 22.8 weeks (190 
 

 
            
 
            Page   7
 
              
 
              
 
            x 12 percent) of permanent partial disability benefits from 
 
            employer.  Thus, it is apparent that claimant has sustained 
 
            permanent disability to two specified scheduled members as 
 
            set out in Iowa Code section 85.64 and Second Injury Fund 
 
            benefits are therefore triggered.  An assessment of 
 
            industrial disability is therefore appropriate in this case.
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. 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 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  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.  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 as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 

 
            
 
            Page   8
 
              
 
              
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 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.
 
            
 
                 Claimant is 49 years old and a high school graduate.  
 
            Claimant has worked for employer since 1965.  Since 1982 or 
 
            so, he has worked in the banbury department doing most of 
 
            the jobs at one time or another.  At the time of his injury 
 
            in July 1989 he was a pigment storage attendant.  In 
 
            December 1989 he went on light duty driving a fork lift.  In 
 
            March 1990 he returned to his regular duty as a pigment 
 
            storage attendant with no physical restrictions imposed by 
 
            his treating surgeon.  In 1989 claimant earned $30,679.46.  
 
            In 1992 he earned $43,197.33.  Claimant's only restriction 
 
            is that he cannot be a tire builder.  However, claimant, in 
 
            his 24 years with employer, has never worked nor applied for 
 
            a job as a tire builder.  Claimant's injury has not 
 
            precluded him from performing his usual and customary job as 
 
            a pigment storage attendant with employer.  Claimant's 
 
            limitations are self-imposed.  He stated he cannot bid on 
 
            the master banbury or master utility job in his department.  
 
            However, no doctor who has treated or examined claimant has 
 
            indicated that he is incapable of performing these jobs.
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant is 10 percent 
 
            industrially disabled.  This is equivalent to 50 weeks.  The 
 
            Second Injury Fund's liability is reduced by the combined 
 
            losses of claimant's right leg (25 percent of 220 weeks or 
 
            55 weeks) and claimant's right hand (12 percent of 190 weeks 
 
            or 22.8 weeks).  The total reduction is 77.8 weeks.  This is 
 
            in excess of the Second Injury Fund's liability.  Therefore, 
 
            the Second Injury Fund of Iowa has no liability for payment 
 
            of permanent partial disability benefits in this case.
 
            
 
                                   ORDER
 
            
 
            THEREFORE IT IS ORDERED:
 
            That defendant employer pay to claimant twenty-two point 
 
            eight (22.8) weeks of permanent partial disability benefits 
 
            at the rate of three hundred sixty-two and 11/100 dollars 
 
            ($362.11) commencing January 1, 1990.
 
            That defendant employer receive credit for any benefits 
 
            previously paid.
 
            That all accrued benefits be paid in lump sum.
 
            That defendant employer pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            That defendant pay all costs pursuant to rule 343 IAC 4.33.
 
            That defendant employer file claim activity reports as 
 
            required by the agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of October, 1993.
 
            
 
            
 

 
            
 
            Page   9
 
                 
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave STE 111
 
            Des Moines, Iowa  50312
 
            
 
            Mr. James Christenson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
            
 
            
 
            
 
                                               51803 53202
 
                                               Filed October 20, 1993
 
                                               Jean M. Ingrassia
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT WILSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 938502
 
            FIRESTONE TIRE AND RUBBER,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            The parties disputed whether claimant's impairment was to 
 
            his hand or arm.  Based on the medical evidence and expert 
 
            opinion, it was determined that claimant's second injury was 
 
            to his right hand.  The opinion of a board certified 
 
            orthopedic and hand surgeon was accepted over the opinion of 
 
            the neurosurgeon who performed surgery.  Claimant found 
 
            entitled to 22.8 weeks (190 x 12 percent) of permanent 
 
            partial disability benefits.  
 
            
 
            53202
 
            Claimant's combined scheduled member disability of 77.8 
 
            weeks is in excess of Second Injury Fund liability of 50 
 
            weeks, therefore, the Second Injury Fund has no liability 
 
            for payment of permanent partial disability benefits in this 
 
            case.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         2700
 
                                         Filed September 14, 1994
 
                                         LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RONALD I. SEIBERT, SR.,  
 
                      
 
                 Claimant, 
 
                                             File No. 938579
 
            vs.       
 
                                            A L T E R N A T E
 
            DEPT. OF GENERAL SERVICES,    
 
                                              M E D I C A L
 
                 Employer, 
 
                                                C A R E
 
            and       
 
                                              D E C I S I O N
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2700 - ALTERNATE CARE
 
            Alternate care ordered to change to one of the two requested 
 
            physicians as a breakdown in the patient/physician 
 
            relationship has occurred and claimant was not been doctor 
 
            jumping and had the same physician since 1990.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _____________________________________________________________
 
                                       :
 
         RONALD I. SEIBERT, SR.,       :
 
                                       :
 
              Claimant,                :
 
                                       :       File No. 938579
 
         vs.                           :
 
                                       :      A L T E R N A T E
 
         DEPT. OF GENERAL SERVICES,    :
 
                                       :        M E D I C A L
 
              Employer,                :
 
                                       :           C A R E
 
         and                           :
 
                                       :       D E C I S I O N
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendant.               :
 
         _____________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding before the Iowa Industrial Commissioner 
 
         upon a petition for alternate medical care filed pursuant to Iowa 
 
         Code section 85.27 on August 29, 1994 by claimant, Ronald 
 
         Seibert, against his employer, State of Iowa, defendant.  The 
 
         petition invokes summary procedures set forth in rule 343 IAC 
 
         4.48.  This matter was consolidated with hearing on September 13, 
 
         1994 on all other disputed issues in the principal litigation 
 
         pending before this agency upon an unresisted motion of claimant.  
 
         As emphasized by the parties at this hearing, the consolidation 
 
         waived the parties' right to timely hearing within 14 days of the 
 
         petition as required by statute.  However, this matter has been 
 
         given expeditious treatment by the undersigned.
 
         
 
              Pursuant to order of the industrial commissioner dated 
 
         August 30, 1994, this deputy commissioner has been delegated the 
 
         authority to issue a final agency decision in this matter.  
 
         
 
              At hearing, defendant admitted liability for this injury.  
 
         
 
              Pursuant to Division of Industrial Services rule 
 
         343-4.48(9), both parties filed written evidence prior to this 
 
         hearing which was received into evidence.
 
         
 
                        
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
                               FINDINGS OF FACT
 
         
 
              Having reviewed the entire record, this deputy industrial 
 
         commissioner makes the following findings:
 
         
 
              On or about October 20, 1989, claimant suffered an injury 
 
         which arose out of and in the course of his employment with the 
 
         State of Iowa.  The injury involved a re-injury of claimant's old 
 
         back which has been previously surgically treated in the 1980's.  
 
         Claimant underwent a second surgery in January 1990. Since that 
 
         time claimant has continued to suffer continuing symptoms of low 
 
         back pain and pain and dysesthesia in both feet.  A series of 
 
         epidural steroid injections has failed to alleviate these 
 
         symptoms.  All physicians involved in this case suggest that a 
 
         continuation of symptoms will necessitate yet another surgery.
 
         
 
              The problem which brings this agency into the matter now is 
 
         that claimant has lost confidence in his treating orthopaedic 
 
         surgeon, Robert Hayne, M.D., who has treated claimant since the 
 
         1990 surgery.  Claimant claims that Dr. Hayne has provided 
 
         inconsistent opinions of his condition.
 
         
 
              Regardless of claimant's assertions, there is little 
 
         question that the physician/patient relationship has deteriorated 
 
         to a point that continuation of the relationship is no longer 
 
         advisable.  This breakdown was recognized by the defendant as it 
 
         has authorized a change of care but only to one of Dr. Hayne's 
 
         two partners.  Claimant does not feel comfortable with a partner 
 
         of a physician he distrusts.  Claimant suggests either Keith 
 
         Riggins, M.D., or William Boulden, M.D.
 
         
 
              Without casting any aspersion upon the quality of the care 
 
         given by Dr. Hayne, who in this experience of this agency is a 
 
         well qualified surgeon, or upon the quality of the care offered 
 
         by the State of Iowa, it is found that continued care by Dr. 
 
         Hayne would be unwise and not reasonably suited to treat the 
 
         injury.  In the specialized expertise of this agency, trust 
 
         between a patient and surgeon is essential to medical care, 
 
         especially when dealing with decisions as to surgical options.  
 
         Claimant certainly has not been jumping around seeking new 
 
         physicians.  He has had the same physician since the work injury 
 
         without objection until now.  Dr. Hayne's office notes 
 
         interpreting the diagnostic imaging tests are somewhat confusing 
 
         as to whether or not there is a herniated disc and despite 
 
         continued aggressive therapy, claimant continues to experience 
 
         increasingly severe symptoms.  Claimant has reason to be 
 
         dissatisfied.  In the experience of this agency either Dr. 
 
         Boulden or Dr. Riggins are well qualified.  A request to be 
 
         treated by either of these individuals is reasonable. 
 
         
 
                       
 
         
 
         
 
         Page   3
 
         
 
         
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              This is a proceeding brought under Iowa Code section 85.27 
 
         as amended by House File 2250 of the 74th General Assembly of the 
 
         State of Iowa.  This Code section provides in part that the 
 
         employer is obligated to furnish reasonable medical services and 
 
         supplies to treat an injured worker and the employer has the 
 
         right to chose the care.  However, the treatment must be provided 
 
         promptly and the treatment must be reasonably suited to treat the 
 
         injury without undue inconvenience to the employee.  If the 
 
         employee is dissatisfied with the care offered by the employer, 
 
         Iowa code section 85.27 provides that the employee must 
 
         communicate the basis of such dissatisfaction to the employer and 
 
         if the injured worker and the employer cannot agree on alternate 
 
         care, the industrial commissioner may allow and order such other 
 
         care.  
 
         
 
              As claimant is seeking relief in this case, claimant bears 
 
         the burden of proof to show by a preponderance of the evidence 
 
         that the offered medical treatment is not reasonably suited to 
 
         treat the injury without undue inconvenience to the employee.  
 
         See Lawyer and Higgs, Iowa Workers' Compensation -- Law & 
 
         Practice, (2nd Ed), 15-2 pages 159-161 and cases cited therein.
 
         
 
              Alternate care includes alternate physicians when there is a 
 
         breakdown in a physician/patient relationship.  Sumalee Neueone 
 
         v. John Morrell & Co., Arb. Dec. (Walshire), File No. 1022976, 
 
         January 27, 1984; Williams v. High Rise Const., Arb. Dec. 
 
         (McGovern), File No. 1025415, February 24, 1993; Wallech v. 
 
         F.D.L., Arb. Dec. (Trier), File No. 1020245, September 3, 1992 
 
         (upheld by Dubuque County District Court on June 21, 1993).
 
         
 
              In the case before us, claimant carried his burden and it 
 
         was found as a matter of fact that the offered care was not 
 
         reasonably suited to treat the injury.  It was also found that 
 
         claimant's request to be treated by either Dr. Boulden or  Dr. 
 
         Riggins is reasonable.
 
         
 
              Therefore, defendants will be order to offer a change of 
 
         care to either Dr. Boulden or Dr. Riggins.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant  is ordered to immediately provide at their 
 
         expense continued medical care of this injury by either William 
 
         Boulden, M.D., or Keith Riggins, M.D.
 
         
 
              2.  Defendant shall pay the costs of this alternate care 
 
         proceeding pursuant to Division of Industrial Services rule 343 
 
         IAC 4.33. 
 
         
 
         
 
         
 
              Signed and filed this ____ day of September, 1994.
 
         
 
         
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         6959 University Ave
 
         Des Moines  IA  50311-1540
 
         
 
         Ms. Shirley A. Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg
 
         Des Moines  IA  50319
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RONALD I. SEIBERT, SR.,       :
 
                                          :       File No. 938579
 
                 Claimant,                :
 
                                          :   M O D I F I C A T I O N
 
            vs.                           :
 
                                          :   O F   A L T E R N A T E
 
            DEPT. OF GENERAL SERVICES,    :
 
                                          :        M E D I C A L
 
                 Employer,                :
 
                                          :           C A R E
 
            and                           :
 
                                          :       D E C I S I O N
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            Defendant moves for an order nunc pro tunc asking that Dan 
 
            McGuire, M.D., be added in lieu of Dr. Riggins in the order 
 
            allowing alternate care.  Claimant does not resist.  The 
 
            information concerning Dr. Riggins' current unavailability 
 
            is outside the record.  However, after reviewing the 
 
            testimony of claimant pointed out by the defendant, the 
 
            request to add Dr. McQuire given claimant's testimony is 
 
            reasonable and appropriate.
 
            IT IS THEREFORE ORDERED that the decision of September 14, 
 
            1994 is amended and that defendant may chose alternate care 
 
            by Dan McQuire, M.D.
 
            
 
            
 
                 Signed and filed this ____ day of September, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines  IA  50311-1540
 
            
 
            Ms. Shirley A. Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            VICKY SKUBAL,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 938964
 
            SHELLER-GLOBE, UTA, 
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured,            
 
                                               D E C I S I O N
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
                          STATEMENT OF THE CASE
 
            
 
                 Claimant, Vicky Skubal, seeks benefits under the Iowa 
 
            Workers' Compensation Act upon her petition in arbitration 
 
            against self-insured employer, Sheller-Globe, and the Second 
 
            Injury Fund of Iowa.  She alleges a cumulative injury to the 
 
            wrists and shoulders on January 3, 1990.  With respect to 
 
            her Second Injury Fund claim, she alleges a prior injury 
 
            that actually postdates the claim under consideration.
 
            
 
                 This matter was scheduled for hearing in Cedar Rapids, 
 
            Iowa on April 8, 1993.  Claimant, who is participating pro 
 
            se, did not appear.  Sheller-Globe participated by Attorney 
 
            Harry Dahl, and the Second Injury Fund participated by 
 
            Attorney Stephen Moline.  Both Mr. Dahl and Mr. Moline 
 
            traveled from Des Moines for the hearing.  
 
            
 
                 A bailiff of the Linn County District Court gave this 
 
            deputy a telephone message to the effect that claimant (no 
 
            phone number given) had called one hour prior to the 
 
            scheduled hearing, to explain that she had injured her foot 
 
            and ankle and could not appear.  Shortly after the time 
 
            scheduled for hearing, claimant telephoned and requested 
 
            continuance.  Ms. Skubal advised that she had sprained her 
 
            ankle the day before, had spent the entire day of hearing 
 
            seeking medical treatment in Iowa City (only 28 miles from 
 
            Cedar Rapids according to the official Iowa State 
 
            Transportation Map) and was unable to appear.
 
            
 
                 The administrative file shows that claimant has been 
 
            extremely dilatory in her conduct of this litigation.  
 
            Indeed, she has twice been required to file proof of her 
 
            intent to pursue this action and has twice been specifically 
 
            warned that further dilatory conduct would not be tolerated 
 
            by the agency.  While a legitimate health emergency may 
 
            prove compelling grounds for continuance, it is noted that 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant made no effort to contact this deputy (or the 
 
            agency in general) until only one hour before scheduled 
 
            hearing.  Had she called earlier in the day, attorneys Dahl 
 
            and Moline could have been saved the expense and 
 
            inconvenience of traveling from Des Moines to Cedar Rapids 
 
            (114 miles by the same map) if a continuance had been 
 
            granted.  It was further shown that claimant did not 
 
            participate in preparing a hearing report as she was ordered 
 
            to do, has failed to make discovery in good faith, and has 
 
            generally been noncooperative. Under these circumstances, 
 
            claimant's motion for continuance was denied. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Neither defendant elected to present evidence.
 
            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. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  
 
            
 
                 As there is no evidence in the record in support of her 
 
            claim, claimant has failed to meet her burden of proof.  
 
            Accordingly, defendants must prevail.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Claimant takes nothing.
 
            
 
                 Costs are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Ms. Vicky Skubal
 
            Certified Mail
 
            Box 14
 
            Atalissa, IA  52720
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street, #16
 
            Des Moines, IA  50312
 
            
 
            Mr. Stephen Moline
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, IA  50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
             
 
                                                1402.20, 2906
 
                                                Filed April 14, 1993
 
                                                David R. Rasey
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            VICKY SKUBAL,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 938964
 
            SHELLER-GLOBE, UTA, 
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                 Self-Insured   
 
                                               D E C I S I O N
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1402.20, 2906
 
            
 
                 Pro se claimant failed to appear for hearing.  Shortly 
 
            after the scheduled commencement time, she telephoned to 
 
            explain that she had sprained her ankle the day before and 
 
            had spent the entire day of hearing seeking medical 
 
            attention.  The administrative file was replete with 
 
            evidence of her dilatory conduct; indeed, another deputy had 
 
            in two separate orders warned her that further dilatory 
 
            conduct would not be tolerated.  Claimant failed to make 
 
            discovery and failed to honor requirements of the hearing 
 
            assignment order.  Obviously, medical emergency can be cause 
 
            for continuance, but, a timely call might have saved both 
 
            defense attorneys from unnecessary travel.  Under these 
 
            circumstances, the request for continuance was denied.  
 
            
 
                 No evidence was presented.  Claimant failed to prove 
 
            that she had sustained injury arising out of and in the 
 
            course of employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LAWRENCE E. YANCEY, JR.,   
 
                        
 
                 Claimant,                      File No. 939032
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            UNIVERSAL GYM EQUIPMENT,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 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 July 6, 1992 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            That claimant and defendant shall share equally the costs of 
 
            the appeal including transcription of the hearing.  
 
            Defendant shall pay all other costs.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Attorney at Law
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa 52406-2457
 
            
 
            Mr. Matthew J. Brandes
 
            Attorney at Law
 
            1200 MNB Bldg.
 
            Cedar Rapids, Iowa 52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed November 10, 1992
 
                                             Byron K. Orton
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LAWRENCE E. YANCEY, JR.,   
 
                        
 
                 Claimant,                      File No. 939032
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            UNIVERSAL GYM EQUIPMENT,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed July 6, 
 
            1992.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            LAWRENCE E. YANCEY, JR.,      :
 
                                          :
 
                 Claimant,                :         File No. 939032
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            UNIVERSAL GYM EQUIPMENT,      :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Lawrence E. Yancey, Jr., seeks benefits under 
 
            the Iowa Workers' Compensation Act upon his petition in 
 
            arbitration against defendant employer Universal Gym 
 
            Equipment ("Universal") based upon a stipulated work injury 
 
            to the back on January 9, 1990.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa, 
 
            on April 2, 1992.  Testimony was received from claimant, 
 
            Shawn Weirather, Joan Bouchareb, Terrance Fratella and 
 
            Christine Yancey.  Joint exhibits 1 through 7, defendant's 
 
            exhibits 1 and 2 and claimant's exhibits 1 through 3 were 
 
            received into evidence.  Objections to claimant's exhibits 4 
 
            and 5 were taken under advisement; the objections are hereby 
 
            overruled and those exhibits are received.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of his employment on 
 
            January 9, 1990, that the injury caused temporary disability 
 
            through October 1, 1990, to the rate of compensation 
 
            ($261.46 per week), that entitlement to medical benefits is 
 
            no longer in dispute and that certain benefits were 
 
            voluntarily paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether the work injury caused permanent 
 
            disability; and,
 
            
 
                 2.  The extent of permanent disability, if any.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                  FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Lawrence Yancey, 44 years of age at hearing, is a 1966 
 
            high school graduate.  He was an average student then, but 
 
            is now doing quite well in community college course work he 
 
            is currently taking to develop a new career in the 
 
            electronics field.
 
            
 
                 Mr. Yancey has employment history in construction and 
 
            factory work, automotive mechanics and mechanical 
 
            maintenance.  He accepted work with a predecessor employer, 
 
            Nissen Company, in 1974.  At some point, Universal Gym 
 
            Equipment became his employer at the same facility, 
 
            apparently through a change in ownership.  Claimant 
 
            performed a number of jobs at the manufacturing facility, 
 
            but mostly worked in the shipping department.  He was so 
 
            employed on the date of injury, October 19, 1990.  Mr. 
 
            Yancey was terminated in early 1991 because Universal had no 
 
            work available within his medical restrictions.
 
            
 
                 Claimant has a history of back problems dating back to 
 
            1974.  He suffered a work injury to the back in 1980 (while 
 
            employed by Nissen Company) which resulted in a surgical 
 
            procedure on October 1 of that year.  Claimant underwent 
 
            laminectomy and removal of a disc fragment necessitated by a 
 
            right-sided herniation at L4-5.
 
            
 
                 Remarkably, claimant was returned to work with no 
 
            restrictions whatsoever following this surgery.  Nissen's 
 
            insurer issued a check intended to compensate for permanent 
 
            partial disability, but in a remarkable gesture consonant 
 
            with good faith and a high degree of credibility, claimant 
 
            returned the check uncashed.  However, Mr. Yancey agreed in 
 
            his testimony that his back has never been the same since 
 
            this procedure, and that while he feels "great" on some 
 
            days, he feels 90 years old on others.  The treating 
 
            surgeon, David Naden, M.D., assigned an impairment rating of 
 
            10-15 percent.
 
            
 
                 Claimant reported another back injury with Nissen on 
 
            December 12, 1986.  He was seen on February 5, 1987, by a 
 
            Dr. Roberts of Iowa Medical Clinic, P.C., (where he had been 
 
            treating for years).  Dr. Roberts noted in his chart that 
 
            claimant was a likely candidate for a repeat disc herniation 
 
            if he did not care for his back properly.  Chart notes 
 
            further state:
 
            
 
                 He was instructed to minimize his lifting, 
 
                 twisting and reaching and to continue a regular 
 
                 exercise program.  It is best for his back if he 
 
                 does not perform repetitive lifting of greater 
 
                 than 50#.  I believe he can perform all activities 
 
                 required except for heavy lifting.
 
            
 
            (Joint exhibit 1b, page 4)
 
            
 
                 While claimant recalled Dr. Roberts telling him he 
 
            should look for a new line of work to prevent future damage, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            he denied being told of the 50-pound repetitive lifting 
 
            restriction.  Dr. Roberts' chart notes can, of course, be 
 
            seen as somewhat ambiguous as to precisely what claimant was 
 
            told.  However, it is also noteworthy that claimant has 
 
            shown a poor memory as to subsequent medical restrictions.  
 
            In an intake interview with the Iowa Division of Vocational 
 
            Rehabilitation on October 1, 1990, (joint exhibit 4, page 
 
            4), claimant mentioned his temporary lifting restriction of 
 
            65 pounds four times per hour and a four-hour per day work 
 
            limit, but "couldn't remember the rest of them."
 
            
 
                 Thus, it is unclear whether claimant was never informed 
 
            of the repetitive lifting restriction, whether he 
 
            misunderstood, forgot, or whether he simply chose to ignore 
 
            Dr. Roberts.  In any event, he continued to work for Nissen, 
 
            and subsequently Universal, in contravention of that 
 
            restriction.  His job in the shipping department requires 
 
            frequent lifting up to 65 pounds and occasional lifting and 
 
            handling of weights up to 150 pounds, sometimes in 
 
            situations making it difficult to employ proper lifting 
 
            techniques.
 
            
 
                 The subject work injury occurred while claimant was 
 
            opening the door to a truck and suddenly developed a sharp 
 
            pain in the lower back.  The pain worsened during the day 
 
            and he found it hard to get out of bed the following 
 
            morning.
 
            
 
                 The following day, claimant presented to the emergency 
 
            room of St. Lukes Hospital with back pain "the worse [sic] 
 
            he has had for a long period of time."  Claimant had reduced 
 
            range of motion but no complaints of sciatica, or radiating 
 
            pain to the leg.  Radiating pain had been a feature of the 
 
            1980 injury.  X-rays showed degenerative changes with mild 
 
            disc space narrowing at L5-S1 and minimal narrowing at L3-4 
 
            and L4-5 with some hypertrophic spurring at L4.  Claimant 
 
            underwent computerized tomography on January 13 which was 
 
            read as showing minimal disc bulge centrally at L3-4 with 
 
            hypertrophic osteophytosis, central and slightly asymmetric 
 
            right disc bulge at L4-5 with hypertrophic facet joint 
 
            disease and a minimal bulge without evidence of herniation 
 
            at L5-S1.
 
            
 
                 J. L. Banks, M.D., the company doctor, diagnosed acute 
 
            lumbar muscle strain.  He referred claimant to physical 
 
            therapy and later, for consultation, to the Spine Diagnostic 
 
            and Treatment Center of the University of Iowa Hospitals and 
 
            Clinics.  X-ray examination in March 1990 showed minimal 
 
            degenerative changes in the lumbar spine and led to an 
 
            impression of mechanical low back pain.  Magnetic resonance 
 
            imaging on April 11 led to an impression of apparent 
 
            central/right paracentral L3-4 disc fragment which may be 
 
            partially calcified and associated with moderate to severe 
 
            central stenosis, along with degenerative changes at L4-5.  
 
            In view of this, a discogram was performed at three levels 
 
            (L3-4, L4-5 and L5-S1) on April 23, resulting in a clinical 
 
            diagnosis of multi-level degenerative disease of the lumbar 
 
            spine with right leg pain and L3-4 disc bulge.
 
            
 
                 James N. Weinstein, D.O., reconstructive spinal surgeon 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            and medical director of the center, noted on May 11 that the 
 
            hospital MRI and discograms showed what may be a significant 
 
            surgical lesion at L3-4 which would require a minimum 
 
            two-level discectomy.  On May 18, Dr. Weinstein's notes 
 
            reflect that he recommended conservative rather than 
 
            operative treatment, in which claimant concurred.  If 
 
            surgery was to be undertaken, Dr. Weinstein recommended 
 
            partial discectomy of the small herniated fragment at L3-4 
 
            and possible unilateral fusion.  He suggested an impairment 
 
            rating of "12% based on previous surgery and current 
 
            herniation make that 14-15%."  The meaning of this is 
 
            unclear to this reader, but an increase in impairment seems 
 
            to be intended.  However, on June 7, Dr. Weinstein wrote 
 
            that surgery was not a treatment option at that time because 
 
            claimant was ambiguous in his decision making.  Impairment 
 
            rating was estimated at 10 percent of the body as a whole.
 
            
 
                 Meanwhile, claimant underwent rehabilitation at the 
 
            Spine Diagnostic and Treatment Center.  He proved highly 
 
            motivated and did well.
 
            
 
                 On September 6, Dr. Weinstein recommended medical 
 
            restrictions of an impermanent nature.  Functional capacity 
 
            assessment was undertaken on September 11, 1990, and 
 
            claimant was released to return to work on October 1, 1990, 
 
            with these restrictions:  (1) starting at four hours per 
 
            day, adding one hour per week; (2) nonrepetitive squat 
 
            lifting of 50 pounds, partial squat lifting of 65 pounds, 
 
            arm lifting of 65 pounds; (3) repetitive lifting limits of 
 
            25, 35 and 35 pounds, respectively; and (4) ability to 
 
            change position from sitting to standing to walking at 
 
            intervals of 45 minutes to 1 hour.
 
            
 
                 However, claimant was not permitted to return to work 
 
            because Universal Gym Equipment had no positions available 
 
            for him within those restrictions.  Claimant was finally 
 
            discharged "in light of the company's inability to match Mr. 
 
            Yancey's functional capacity with positions at the plant for 
 
            which he may be eligible" on March 22, 1991.
 
            
 
                 Claimant underwent another functional capacity 
 
            evaluation on February 26, 1991.  Dr. Weinstein imposed a 
 
            65-pound lifting limit (not more than four times per hour) 
 
            and a repetitive lifting limit of approximately 33 pounds.
 
            
 
                 Defendant has since offered vocational rehabilitation 
 
            services and claimant has sought similar services from the 
 
            Iowa Division of Vocational Rehabilitation.  He has not been 
 
            interested in full-time work because, as previously noted, 
 
            he is taking courses in electronics/communications in 
 
            pursuit of an associate of arts degree.  Claimant's skills 
 
            in mathematics require some brushing up and he is taking 
 
            extra courses in that area now.
 
            
 
                 While going to school, claimant has accepted part-time 
 
            work with an enterprise known as Friberger Waste Services.  
 
            He typically works zero to 20 hours per week, having worked 
 
            only two 40-hour weeks.  He started with raking and brush 
 
            chipping (which requires substantial lifting) and has 
 
            transferred to truck maintenance, where he is now employed.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Ever motivated, Mr. Yancey believes he is physically capable 
 
            of performing work beyond those restrictions imposed by Dr. 
 
            Weinstein.
 
            
 
                 Claimant was also seen on December 18, 1986, by Kim B. 
 
            Brandt, M.D., of Mt. Vernon Family Medical Center.  Dr. 
 
            Brandt felt claimant had suffered muscle strain which 
 
            aggravated his preexisting laminectomy and degenerative 
 
            arthritic changes, but expected the problem to totally 
 
            resolve.  On November 24, 1987, Dr. Brandt wrote that 
 
            claimant had proven tolerance of 100 pounds lifting and 
 
            should be able to handle any kind of nonrepetitive job that 
 
            allowed him to lift no more than that weight without help.  
 
            However, he recommended that claimant not have a job that 
 
            held him in a fixed position for the entire work shift, 
 
            particularly with repeated flexion of the spine.  In chart 
 
            notes of November 16, 1990, relative a rehabilitation 
 
            physical, Dr. Brandt recommended a functional limitation of 
 
            no more than 100 pounds lifting, no prolonged flexion, no 
 
            standing more than an hour and recommended against heavy 
 
            machine maintenance work, sledgehammer or air hammer use.
 
            
 
                    
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                   CONCLUSIONS OF LAW
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of employment and 
 
            have agreed to the extent of entitlement to temporary total 
 
            disability or healing period benefits.  Causation and extent 
 
            of permanency are at issue.
 
            
 
                 The record makes clear that claimant had preexisting 
 
            industrial disability with respect to his lower back.  Even 
 
            though he was not given medical restrictions following his 
 
            surgery in 1980, the treating surgeon believed him to have a 
 
            measurable impairment.  At least as of 1987, while claimant 
 
            was still working for Nissen Company, a lifting restriction 
 
            was imposed by Dr. Roberts, even though claimant continued 
 
            to work in disregard of that restriction.  The true 
 
            "causation" question is this:  Has claimant's industrial 
 
            disability increased by reason of this work injury?
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. 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 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  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 as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 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.
 
            
 
                 This case presents an unusual twist in that, prior to 
 
            the work injury, claimant was in effect earning wages in 
 
            excess of his earning capacity.  He did this by continuing 
 
            to work a job in contravention of Dr. Roberts' weight 
 
            restriction.  While claimant testified he was not informed 
 
            of this restriction, it is more likely that he has simply 
 
            forgotten it.  Note also that Dr. Brandt imposed a weight 
 
            restriction in 1987, although it was substantially higher 
 
            than the one imposed by Dr. Roberts.  It seems certain that, 
 
            had Universal Gym Equipment been aware of Dr. Roberts' 
 
            restriction, claimant would not have been working in January 
 
            1990.  After all, claimant was discharged following an 
 
            injury which Universal admits is work related, whereas 
 
            Universal would not be liable (on this record) for the 
 
            results of an injury suffered while claimant was working for 
 
            Nissen Company.
 
            
 
                 Claimant's impairment is essentially the same now as it 
 
            was before the subject injury.  His medical restrictions are 
 
            nearly the same, but not entirely.  Whereas before, claimant 
 
            had a 50-pound restriction (note that Dr. Brandt's 
 
            recommendation of a 100-pound restriction did not change as 
 
            a result of the subject work injury), he now has a 65-pound 
 
            nonrepetitive limit and a 33-pound repetitive limit.  There 
 
            are two additional factors of significance.  One is that, 
 
            although radiographic studies have been somewhat 
 
            contradictory and inconclusive, it appears that claimant has 
 
            developed (or had "lit up" and aggravated) degenerative 
 
            changes and a probable surgical lesion at L3-4.  At least as 
 
            significant is the fact that he has lost his job because the 
 
            preexisting medical restriction imposed by Dr. Roberts has 
 
            itself been "lit up," by way of becoming known to claimant 
 
            and Universal.  This has resulted in a dramatic loss of 
 
            actual earnings.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Thus, it can be seen that claimant's status has changed 
 
            as a direct result of this work injury.  His symptoms have 
 
            increased, restrictions are slightly more onerous than those 
 
            in effect (if unknown or unremembered) prior to the injury, 
 
            and he has lost his job.  Considering then all these factors 
 
            and the record otherwise in general, it is held that 
 
            Lawrence Yancey has, as a result of this injury, sustained a 
 
            permanent industrial disability, above and beyond his 
 
            previous industrial disability, equivalent to 20 percent of 
 
            the body as a whole, or 100 weeks.  Iowa Code section 
 
            85.34(2)(u).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant thirty-seven point 
 
            seven one four (37.714) weeks of healing period benefits at 
 
            the stipulated rate of two hundred sixty-one and 46/100 
 
            dollars ($261.46) per week commencing January 10, 1990.
 
            
 
                 Defendant shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred sixty-one and 46/100 dollars 
 
            ($261.46) per week commencing October 1, 1990.
 
            
 
                 Defendant shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Costs are assessed to defendant pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr. Robert R. Rush
 
            Attorney at Law
 
            526 Second Avenue SE
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa  52406-2457
 
            
 
            Mr. Matthew J. Brandes
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     5-1803
 
                                                     Filed July 6, 1992
 
                                                     DAVID RASEY
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISISONER
 
            ____________________________________________________________
 
            LAWRENCE E. YANCEY, JR., 
 
                      
 
                 Claimant,                       File No. 939032
 
                      
 
            vs.                               A R B I T R A T I O N
 
                      
 
            UNIVERSAL GYM EQUIPMENT,            D E C I S I O N
 
                      
 
                 Employer, 
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Permanent partial disability awarded.
 
            
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 KAREN HARTMAN,
 
 
 
      Claimant,
 
 
 
                                                     File No. 939108
 
 CLARKE COUNTY HOMEMAKERS
 
 SERVICES,                                            A P P E A L
 
 
 
      Employer,                                     D E C I S I O N
 
 
 
 and
 
 
 
 BITUMINOUS INSURANCE COS.,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal. The decision of the deputy filed 
 
 January 2, 1992 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 That claimant and defendants shall share equally the costs of 
 
 the appeal including transcription of the hearing.
 
 
 
 Signed and filed this 21st day of August, 1992.
 
 
 
 
 
                                       BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Steven C. Jayne
 
 Attorney at Law
 
 5835 Grand Ave., Ste 201
 
 Des Moines, Iowa 50312
 
 
 
 Mr. William D. Scherle
 
 Attorney at Law
 
 8th Floor Fleming Bldg.
 
 Des Moines, Iowa 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 9998
 
                                                 Filed August 21, 1992
 
                                                 BYRON K. ORTON
 
                               
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 KAREN HARTMAN,
 
 
 
      Claimant,
 
 
 
 vs.
 
                                                File No. 939108
 
 CLARKE COUNTY HOMEMAKERS
 
 SERVICES,
 
                                                 A P P E A L
 
      Employer,
 
                                               D E C I S I O N
 
 and
 
 
 
 BITUMINOUS INSURANCE COS.,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
 9998
 
 
 
 Summary affirmance of deputy's decision filed January 2, 
 
 1992.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY ANN HURLEY,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 939110
 
            VISKASE CORPORATION,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Mary Ann 
 
            Hurley against her employer, Viskase Corporation, and its 
 
            insurance carrier, CNA Insurance Companies, based upon an 
 
            alleged injury of July 10, 1989.  Mary Ann seeks 
 
            compensation for healing period, permanent partial 
 
            disability, payment of medical expenses, and transportation 
 
            expenses.  The primary issue is determination of whether 
 
            Mary Ann's bilateral epicondylitis is an injury that was 
 
            proximately caused by her employment.
 
            
 
                 The case was heard at Ottumwa, Iowa, on July 14, 1992.  
 
            The record in the proceeding consists of testimony from Mary 
 
            Ann Hurley, Elizabeth White and Thomas Marks.  The record 
 
            also contains joint exhibits 1 through 16.  
 
            
 
                                 findings of fact
 
            
 
                 Mary Ann Hurley is a 47-year-old married woman who 
 
            lives at Exline, Iowa, on a farm with her husband and adult 
 
            son.  She has been employed by Viskase Corporation for 
 
            approximately 25 years.  
 
            
 
                 The farming operation consists primarily of cattle.  No 
 
            crops are grown except for approximately 50 acres of hay.  
 
            Mary Ann does not engage in baling hay.  She does, on 
 
            occasion, check the cattle.  This involves looking at them 
 
            in order to be certain that none are missing and they appear 
 
            to be healthy.  On occasion, when the adult son is not home, 
 
            she will dump a bucket of feed into a bunk for the cattle.  
 
            She estimated that this event occurs approximately once per 
 
            week.  It would be expected that more than one bucket of 
 
            feed would be involved at the times when this activity is 
 
            performed.
 
            
 
                 In her work at Viskase Corporation Mary Ann held the 
 
            job of expediter.  She performed a variety of actual 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            functions, including folding cartons, putting cartons on 
 
            racks, packing cartons with bags, carrying cartons filled 
 
            with bags, lifting and stacking cartons, and operating 
 
            banding machines.  The cartons filled with bags can weigh up 
 
            to 80 pounds.  Operating the automatic bander involves 
 
            merely pushing buttons.  Operating the manual bander 
 
            involves pushing a filled carton through the bander machine 
 
            as well as pushing buttons.
 
            
 
                 During the late spring or earlier summer of 1989, Mary 
 
            Ann began developing pain and discomfort in her elbows at 
 
            the end of the work day.  According to Mary Ann she had gone 
 
            to the plant nurse with her complaints, was told to take 
 
            Advil but that nothing else was done.  She subsequently 
 
            bumped her elbow.  Following that event, her elbow pain 
 
            worsened and she was then sent to a doctor.  Elizabeth 
 
            White, the plant nurse, testified at hearing that the plant 
 
            keeps records of employee medical problems but those records 
 
            were not provided to claimant's attorney.  It is noted that 
 
            those records are not in evidence in this case.  White 
 
            stated that in the records there were entries dealing with 
 
            claimant's arms in June or July 1989.  White also testified 
 
            at hearing that there may have been an entry on April 10, 
 
            1991, when claimant made complaint of elbow pain.  White 
 
            stated that she would not necessarily make a written entry 
 
            if she were simply giving over-the-counter medication such 
 
            as aspirin to the employee.
 
            
 
                 On July 10, 1989, Mary Ann was seen by D. B. Fraser, 
 
            M.D., for her elbow complaints.  A diagnosis of lateral 
 
            epicondylitis, also known as tennis elbow, was made.  The 
 
            treatment note states, "Apparently she is actively engaged 
 
            in farming on the side as well as her work as an expediter 
 
            and apparently has to lift some fairly heavy boxes."  
 
            (exhibit 3, page 51).  Mary Ann went through a fairly 
 
            extensive course of conservative treatment but did not 
 
            recover.  She was referred to Jack W. Brindley, M.D., by one 
 
            of the plant physicians, apparently Larry Heikes, M.D.  Dr. 
 
            Brindley provided additional conservative care.  Claimant's 
 
            symptoms improved although it appears that they did not 
 
            completely resolve.  She was then released to return to 
 
            work.  Initially, she was given a 25-pound lifting 
 
            restriction (exhibit 3, page 43).  No work of that nature 
 
            was made available to her.  She then returned to work at 
 
            full duty.  According to the stipulation found at paragraph 
 
            four of the prehearing report she was off work from July 11, 
 
            1989 through January 11, 1990.  
 
            
 
                 Claimant continued to work, but her symptoms recurred.  
 
            She again was taken off work commencing June 14, 1990, and 
 
            remained off work through November 19, 1990, under the care 
 
            of Orthopedic Surgeon Sinesio Misol, M.D.  Since the earlier 
 
            conservative treatment had not been successful at 
 
            permanently resolving Mary Ann's complaints, Dr. Misol 
 
            recommended surgery.  On June 14, 1990, left lateral 
 
            epicondyle release surgery was performed.  Similar surgery 
 
            was performed on the right elbow September 9, 1990.  After 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            an essentially unremarkable course of recovery, Mary Ann 
 
            returned to work on November 20, 1990. 
 
            
 
                 Mary Ann has remained employed by Viskase Corporation.  
 
            She has been performing her job without any particular 
 
            complaint or substantial problems.  The surgery seems to 
 
            have been successful.  Dr. Misol provided an impairment 
 
            rating of 5 percent of each upper extremity as a result of 
 
            the condition and surgery (ex. 1, pp. 2, 18, 19, 28).  He 
 
            had provided a 10 percent impairment rating of the left, but 
 
            50 percent of that was felt by him to be attributable to 
 
            degenerative arthritis which he felt was related to a 
 
            fracture of the left arm which had occurred approximately 20 
 
            years ago.
 
            
 
                 The principal physicians in this case have been Sinesio 
 
            Misol, M.D.; Jack W. Brindley, M.D., an Ottumwa, Iowa, 
 
            orthopedic surgeon; and the physicians at the Centerville 
 
            Medical Clinic, namely J.B. McConville, M.D., L. G. Heikes, 
 
            M.D. and D. B. Fraser, M.D.  In a report dated November 27, 
 
            1989, Dr. Brindley indicated that the claimant's condition 
 
            was work related (ex. 2, p. 31).  Dr. Misol has indicated 
 
            that in his opinion the condition was related to her work at 
 
            Viskase Corporation (ex. 1, pp. 2, 16, 17, 19).  Dr. Fraser, 
 
            in an early report to the employer dated July 10, 1989, used 
 
            a form with spaces for marking "yes" or "no" regarding 
 
            whether the condition was work related.  The word "unknown" 
 
            appears to be written on that form (ex. 3, p. 57).  
 
            
 
                 In a subsequent report dated January 31, 1992, Dr. 
 
            Heikes seems to indicate that the function of banding is not 
 
            particularly strenuous and does not involve extensive arm 
 
            movements of the type which would be likely to cause tennis 
 
            elbow (ex. 3, pp. 47-48).  Dr. Heikes makes a quite 
 
            extensive discussion of the banding procedure but very 
 
            little about the lifting, stacking and moving of boxes.  He 
 
            reports that the boxes weigh from 17 up to 80 pounds (ex. 3, 
 
            p. 48).  In his final analysis, Dr. Heikes agrees that Mary 
 
            Ann suffered bilateral epicondylitis and that it occurred 
 
            during the time when she was working in the banding area.  
 
            He further indicates that he has no knowledge of her having 
 
            earlier complaints of the problem.  He noted in paragraph 
 
            four of his summary that she initially seemed to make a full 
 
            recovery and was returned to full duties on January 11, 
 
            1990.  In paragraph six he notes that her recovery with 
 
            conservative therapy occurred while she was off work and 
 
            that fact indicates that work was probably aggravating the 
 
            lateral epicondylitis, but that it is not clear whether the 
 
            work actually caused the problem.  He speaks of her farming 
 
            operation as possibly prolonging her recovery if she carried 
 
            them on while she was off work.  He states that she, 
 
            "apparently" was involved in farming operations during the 
 
            time that she had problems with her lateral epicondylitis.  
 
            Finally, Dr. Heikes recognizes that she has made a full 
 
            recovery with a possible slight permanent impairment as 
 
            indicated by Dr. Misol (ex. 3, p. 49).
 
            
 
                 Thomas Marks testified at hearing that Viskase 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Corporation does not have a problem with repetitive trauma 
 
            activity injuries.  He stated that the jobs claimant has 
 
            held do not involve repetitive activity.  Marks indicated 
 
            that Dr. Misol's understanding of claimant's activities at 
 
            work are incorrect as to the functions actually involved in 
 
            manual banding.  He acknowledged that claimant had to unload 
 
            boxes by hand and that making cartons is done by hand.  
 
            
 
                 It is found that the assessment of this case made by 
 
            Dr. Misol is correct in all regards even though he has an 
 
            apparent misunderstanding of the functions involved in the 
 
            banding operation.  His opinion regarding causation is 
 
            corroborated by Dr. Brindley.  It is not expressly refuted 
 
            by any of the physicians from the Centerville Medical 
 
            Clinic.  The professional status of Doctors Misol and 
 
            Brindley when addressing an orthopedic problem such as 
 
            lateral epicondylitis is a factor to be considered when 
 
            assigning weight to conflicting opinions.  Undue emphasis 
 
            has been placed on the banding function.  Pushing buttons 
 
            was not claimant's only duty.  In this case, it is found 
 
            that Doctors Brindley and Misol are correct.  The evidence 
 
            in this case regarding claimant's farming operations, other 
 
            than that from her own testimony, is replete with 
 
            speculation and conjecture.  Simply observing cattle or 
 
            riding on a four-wheeler would not be the type of activity 
 
            which Dr. Misol had indicated would be likely to produce 
 
            lateral epicondylitis.  While it is certainly possible that 
 
            activities such as baling hay or carrying a substantial 
 
            number of buckets of feed for a substantial period of time 
 
            could bring about the condition, there is no evidence in the 
 
            record of this case that any of the claimant's farming 
 
            activities were of sufficient strenuousness or frequency to 
 
            bring about the condition. 
 
            
 
                 Dr. Misol has assigned an impairment rating of 5 
 
            percent of each upper extremity.  The condition is located 
 
            in the claimant's elbows.  The elbows are a part of the arm 
 
            and are not a part of the shoulder joint.  They are located 
 
            distal to the shoulder.  The disability is located in and 
 
            limited to the claimant's arms.  Dr. Brindley did not make a 
 
            determination of impairment when he was treating the 
 
            claimant and has not done so subsequently.  None of the 
 
            physicians from the Centerville Medical Clinic have disputed 
 
            the ratings made by Dr. Misol.  Dr. Misol's ratings are 
 
            therefore found to be correct.  
 
            
 
                 As shown in the prehearing report and statements made 
 
            by counsel at the commencement of the hearing, the only 
 
            issues regarding the medical expenses and mileage were 
 
            liability and causation.  Since all of the treatment which 
 
            claimant obtained as shown by the records in this case was 
 
            for her bilateral epicondylitis, it is found that all of the 
 
            medical bills and mileage shown in exhibits 6 and 7 were 
 
            incurred in obtaining treatment for the lateral 
 
            epicondylitis condition and not for any other purpose.
 
            
 
                                conclusions of law
 
            
 
                 The party who would suffer loss if an issue were not 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.ylitis which had its 
 
            onset during the spring or early summer of 1989 resulted 
 
            from use of her arms which occurred as part of the duties of 
 
            her employment with Viskase Corporation.  It is noted that 
 
            she was working long hours and performing a variety of 
 
            functions, not just banding.  It is further noted that the 
 
            record in this case does not provide any substantive 
 
            evidence that she engaged in any other type of activity 
 
            which had the potential for developing the condition.  Both 
 
            orthopedic surgeons involved in the case have related the 
 
            condition to her employment.  It is therefore concluded that 
 
            Mary Ann Hurley's bilateral epicondylitis is the result of a 
 
            cumulative trauma injury which arose out of and in the 
 
            course of her employment.  It may have been to some extent 
 
            an aggravation of some preexisting condition, weakness or 
 
            propensity to develop the condition, but there is no 
 
            indication in the record that anything which might have 
 
            preexisted was in any manner significant or independently 
 
            disabling.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 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, 332 N.W.2d 886.
 
            
 
                 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, 222 
 
            Iowa 272, 268 N.W. 598.
 
            
 
                 It was stipulated by the parties in the prehearing 
 
            report that if liability was established, the healing period 
 
            entitlement runs from July 11, 1989 through January 11, 1990 
 
            and again from June 14, 1990 through November 19, 1990.  The 
 
            first is 26 3/7 weeks in duration while the second is 22 5/7 
 
            weeks in duration.  The intervening time between the two 
 
            healing periods is 21 6/7 weeks.  
 
            
 
                 An impairment of 5 percent of each upper extremity is 
 
            equivalent to a 3 percent impairment of the whole person for 
 
            each upper extremity (table 3, American Medical Association 
 
            Guides to the Evaluation of Permanent Impairment, 3d 
 
            revised ed. page 16).  When applied using the combined 
 
            values chart, the result is a 6 percent impairment of the 
 
            whole person.  In a case such as this, functional impairment 
 
            under the Guides is normally equal to the degree of 
 
            disability under section 85.34(2)(s).  This case presents no 
 
            compelling reason to vary from the norm.  Mary Ann Hurley is 
 
            therefore entitled to recover 30 weeks of compensation for 
 
            permanent partial disability.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 Since the only issue in this case was whether the 
 
            claimant's condition constituted an injury for which the 
 
            employer was liable, the employer is held liable for the 
 
            claimant's medical expenses as shown in exhibit 6 and also 
 
            for her transportation expenses as shown in exhibit 7.  The 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            transportation amounts to 3360 miles which at $.21 per mile 
 
            computes to $705.60.  Claimant's entitlement to recovery for 
 
            medical expenses under section 85.27 is as follows:
 
            
 
                      MEDICAL BILLS PAID BY MARY ANN HURLEY
 
                 
 
                 Iowa Orthopaedic Center                 $  944.00
 
                 Mercy Hospital Medical Center              475.01
 
                 Drugs                                      127.20
 
                 Jack W. Brindley, M.D.                     102.00
 
                 Medical Center Anesthesiologists           203.70
 
                 St. Joseph Mercy Hospital                  219.97
 
                 mileage                                    705.60
 
            
 
                                          TOTAL          $2,777.48
 
            
 
                 To the extent that any of the foregoing bills are 
 
            unpaid, defendants may make payment directly to the provider 
 
            or to Mary Ann Hurley.  Of those bills which have been 
 
            previously paid, defendants shall reimburse the claimant.  
 
            The mileage expense shall be paid directly to the claimant.
 
            
 
                 Weekly compensation benefits are due and payable weekly 
 
            commencing on the eleventh day after the injury under Iowa 
 
            Code section 85.30.  Compensation for permanent partial 
 
            disability is due and payable commencing at the end of the 
 
            healing period under Iowa Code section 85.34(2).  If any 
 
            type of weekly compensation is not paid at the time it comes 
 
            due, it accrues interest pursuant to Iowa Code section 
 
            85.30.  Teel, 394 N.W.2d 405; Farmers Elevator Co., Kingsley 
 
            v. Manning, 286 N.W.2d 174 (Iowa 1979).
 
            
 
                 The stipulated weekly rate of compensation is adjusted 
 
            to $248.52 in order to be consistent with the 1989 benefit 
 
            schedule. 
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Mary Hurley 
 
            forty-nine and one-sevenths (49 1/7) weeks of compensation 
 
            for healing period at the stipulated rate of two hundred 
 
            forty-eight and 52/100 dollars ($248.52) per week with 
 
            twenty-six and three-sevenths (26/37) weeks thereof payable 
 
            commencing July 11, 1989, and with the remaining twenty-two 
 
            and five-sevenths (22 5/7) weeks thereof payable commencing 
 
            June 14, 1990.
 
            
 
                 It is further ordered that defendants pay Mary Ann 
 
            Hurley thirty (30) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of two hundred 
 
            forty-eight and 52/100 dollars ($248.52) per week payable 
 
            commencing November 20, 1990, as stipulated in the 
 
            prehearing report.
 
            
 
                 Defendants are entitled to credit against the foregoing 
 
            awards of weekly benefits in the amount of fourteen thousand 
 
            eight hundred and 97/100 dollars ($14,800.97).  The 
 
            remaining balance thereof is past due and owing and shall be 
 
            paid to Mary Ann Hurley in a lump sum together with interest 
 
            pursuant to the provisions of section 85.30 computed from 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the date each weekly payment came due up to the date of 
 
            actual payment.
 
            
 
                 It is further ordered that defendants pay the following 
 
            medical expenses:  Iowa Orthopaedic Center - $944, Mercy 
 
            Hospital Medical Center - $475.01, Drugs - $127.20, Jack W. 
 
            Brindley, M.D. - $102, Medical Center Anesthesiologists - 
 
            $203.70, St. Joseph Mercy Hospital - $219.97, Mary Ann 
 
            Hurley, mileage - $705.60, Total expenses - $2,777.48.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark Hedberg
 
            Attorney at Law
 
            840 Fifth Ave
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51402.30 51803 51808 52209
 
                                          Filed December 21, 1992
 
                                          Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY ANN HURLEY,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 939110
 
            VISKASE CORPORATION,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51402.30 51803 51808 52209 
 
            Claimant proved by overwhelming preponderance of the 
 
            evidence that she sustained bilateral tennis elbow as a 
 
            result of her employment duties.  Claimant awarded 6 percent 
 
            permanent partial disability pursuant to section 
 
            85.34(2)(s).