BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            REGIS MCNAMARA,       
 
                        
 
                 Claimant,                        File No. 943914
 
                        
 
            vs.                                     A P P E A L
 
                        
 
            SECOND INJURY FUND OF IOWA,           D E C I S I O N
 
                        
 
                 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 October 22, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            The Second Injury Fund's argument that claimant's right arm 
 
            condition is an occupational disease rather than an injury 
 
            is rejected.  Initially, it is noted that the right arm 
 
            condition appears to have resulted in a rupture, which 
 
            indicates an injury process other than repetitive trauma.  
 
            However, even if claimant's right arm condition is a 
 
            repetitive motion injury, under Noble v. Lamoni Products, 
 
            Appeal Decision, May 7, 1992, such a condition is the result 
 
            of an injury and not an occupational disease.
 
            
 
            Second Injury Fund shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave. SW, Ste 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            115 Third St., SE, Ste 1200
 
            Cedar Rapids, Iowa 52401-1266
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
     
 
                
 
 
 
                                                 5-1803; 2203
 
                                                 Filed May 25, 1993
 
                                                 BYRON K. ORTON
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            REGIS MCNAMARA,       
 
                        
 
                 Claimant,                          File No. 943914
 
                        
 
            vs.                                     A P P E A L
 
                        
 
            SECOND INJURY FUND OF IOWA,             D E C I S I O N
 
                        
 
                 Defendant.       
 
            ____________________________________________________________
 
                  
 
            5-1803
 
            Claimant, 56 years of age at the time of the injury, 
 
            sustained a ruptured tendon at the elbow.  Eventually, he 
 
            received a 15 percent functional impairment to the right 
 
            upper extremity. 
 
            
 
            Claimant had previously sustained a loss of 30 percent of 
 
            his left upper extremity.
 
            Claimant's scholastic abilities are at the third grade 
 
            level.  He had only completed the fifth grade, with no 
 
            further education or training.
 
            
 
            Claimant awarded 70 percent industrial disability.
 
            
 
            2203
 
            Claimant's repetitive motion injury held to be an injury and 
 
            not an occupational disease pursuant to Noble.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REGIS MCNAMARA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  943914
 
            ABELL-HOWE,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNKNOWN,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Regis 
 
            McNamara, claimant, against Abell-Howe Company, employer, 
 
            and the Second Injury Fund of Iowa, as defendants.  Claimant 
 
            seeks workers' compensation benefits due to an injury he 
 
            received on December 19, 1988, which arose out of and in the 
 
            course of employment with employer.
 
            
 
                 The record in this case consists of the live testimony 
 
            of the claimant and Mary McIntosh, joint exhibit 1 through 
 
            14 and defendants' exhibit A.  
 
            
 
                                      issues
 
            
 
                 The parties present the following issues for 
 
            resolution:
 
            
 
                 1.  Whether there is a causal relationship between 
 
            claimant's injury and his disability;
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            or permanent total disability benefits;
 
            
 
                 3.  Whether claimant has sustained an occupational 
 
            disease; and, 
 
            
 
                 4.  Whether defendants are entitled to credit for 
 
            benefits paid under Iowa Code section 85.64.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having reviewed all of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Regis McNamara, was a 59-year old man at the 
 
            time of the hearing.  His formal education consists of 
 
            completion of the fifth grade in elementary school and he 
 
            has not received a GED.  He has had no other formal or 
 
            vocational education.  Claimant's dominant hand is his right 
 
            hand.
 
            
 
                 In 1953, while serving in the Korean Conflict, claimant 
 
            was hit by a grenade in the left arm and hand.  He sustained 
 
            some damage from shrapnel and presently continues to have 
 
            shrapnel located in his left upper extremity.  
 
            
 
                 Claimant's work history is concentrated in the welding 
 
            area.  In 1948 he worked as a welder for a blacksmith in 
 
            Praireburg, Iowa.  He learned stick welding procedures while 
 
            on the job.  
 
            
 
                 After one year, claimant went to work on a farm, which 
 
            included driving a tractor, plowing and disking.  He worked 
 
            as a farm helper for three years.
 
            
 
                 Next, claimant worked for Iowa Steel and Iron Works in 
 
            Cedar Rapids, Iowa, where he worked for the next 13 years, 
 
            with time off to serve in Korea.  Again, claimant worked as 
 
            a welder gaining on-the-job training.  His beginning wage 
 
            was $1.35 per hour and when he left, in approximately 1964, 
 
            he was earning $6.50 per hour.  
 
            
 
                 Claimant then worked for Kramer Brothers Bridge 
 
            Construction in Cedar Rapids, Iowa.  He was a welder working 
 
            on bridges within the city.  After five years of employment 
 
            with Kramer Brothers, claimant began working for Schmidt 
 
            Construction in Cedar Rapids, Iowa.  His work involved the 
 
            same skills he had learned as a welder.  
 
            
 
                 For the past 18 years claimant has been a member of 
 
            Local 89 and receives all of his welding assignments through 
 
            the union.  
 
            
 
                 For approximately 10 or 11 years claimant worked for 
 
            Abell-Howe, a builder located in Cedar Rapids, Iowa.  
 
            Abell-Howe has been the primary contractor for ADM, a 
 
            company which produces corn sweetener.  He has worked on 
 
            welding projects on both new and rebuilt buildings.  
 
            
 
                 Claimant described his overall duties as an iron worker 
 
            as requiring welding skills, bolting up beams to form the 
 
            framework of various buildings and bridges and using air 
 
            drills to drill holes in beams to prepare them for the 
 
            framework.  It is this later duty which gives rise to this 
 
            litigation.  
 
            
 
                 Claimant was injured while working with the air drills.  
 
            He described his duties as using seven different sizes of 
 
            drills in order to get a hole large enough so that the bolts 
 
            could go through steel beams and hook on to a standing 
 
            building.  He performed the air drilling while standing and 
 
            had to hold a seven-pound drill at shoulder level so that he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            could "lean into" the drill in order to drill the hole in 
 
            the beam.  The force and rotation of the drill constantly 
 
            twisted claimant's right arm.  
 
            
 
                 Claimant's reputation within the union was that of a 
 
            welder and he was sent out to jobs as such.  Unusual was the 
 
            case that once sent out to a job site he would be assigned 
 
            other duties such as hooking beams to a crane or tying 
 
            rebar.  Claimant testified that 75 percent of his work for 
 
            Abell-Howe was work as a welder.  
 
            
 
                 For two and one-half months, during the later part of 
 
            1988, claimant performed the air drilling work described 
 
            above.  He began to notice physical problems such as his 
 
            right arm aching all of the time and his fingers on the 
 
            right hand becoming numb.  The problems continued and 
 
            claimant reported this to the union steward.  He was sent to 
 
            the company doctor who supplied ibuprofen and an elastic 
 
            wrap.  
 
            
 
                 Claimant continued to have sharp, constant pain in the 
 
            right upper extremity.  He sought treatment from his family 
 
            physician, Kenneth Andersen, M.D.  Dr. Andersen initially 
 
            treated claimant with steroid shots to the lateral 
 
            epicondyle on the right elbow.  At that time he diagnosed 
 
            bursitis of the right elbow and advised claimant to avoid 
 
            hard work for at least one week.  
 
            
 
                 Claimant returned to work and was assigned the same 
 
            duties using the air drill.  He returned to Dr. Andersen for 
 
            additional steroid shots.  Claimant testified that during 
 
            the next several months the steroid shots would help for 
 
            three or four days, he would return to work and would soon 
 
            after begin to feel pain again.  Finally, in May of 1989 
 
            claimant was referred to Earl Bickel, M.D., an orthopedic 
 
            specialist, for treatment (joint exhibit 1, pages 1-16).  
 
            
 
                 Claimant first visited Dr. Andersen on May 17, 1989.  
 
            The medical records indicate that claimant showed full 
 
            flexion and extension with a slight dip between the lateral 
 
            epicondyle of the common extensors.  X-rays of the elbow 
 
            were normal.  
 
            
 
                 Claimant returned to Dr. Andersen in June of 1989.  He 
 
            continued to complain of pain in the elbow and Dr. Andersen 
 
            diagnosed an entrapment syndrome of the radial nerve.  He 
 
            ordered an EMG, the results of which were positive and 
 
            scheduled surgery for release of the entrapment syndrome.  
 
            This surgery was performed on July 10, 1989, at St. Luke's 
 
            Hospital in Cedar Rapids, Iowa (jt. ex. 2, pp. 1-4 and p. 
 
            8).  
 
            
 
                 Claimant proceeded to undergo physical therapy for the 
 
            next six weeks after the initial operation.  He stated that 
 
            this was of no help and because Dr. Bickel has ceased 
 
            treating him, due to a heart attack, he was referred to 
 
            Walter Hales, M.D., who began to treat claimant in January 
 
            of 1990.  Upon examination, Dr. Hales concluded that 
 
            claimant needed to undergo a second operation in the form of 
 
            a fasciotomy of the lateral epicondyle with extensor origin 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            detachment of the right elbow.  Dr. Hales noted that 
 
            claimant, "had surgery for a problem which I had never seen 
 
            to the extent he had his extensor mechanism totally ruptured 
 
            off the lateral epicondyle." (jt. ex. 2, p. 10).  
 
            
 
                 Claimant was treated by Dr. Hales through February and 
 
            March of 1990.  His notes, dated April 16, 1990, supply the 
 
            following information:
 
            
 
                    Regis is kind of in a difficult situation 
 
                 having had a severe tennis elbow, the severest I 
 
                 have ever witnessed at surgery, with total 
 
                 disruption of a tendon with a very guarded 
 
                 prognosis in terms of ever really recovering 
 
                 enough to be able to work.  We are going to fit 
 
                 him with a Bird & Cronin splint that hopefully 
 
                 will give him some relief and allow him to adjust 
 
                 and learn to use that over a week's time and let 
 
                 him return to work on the 23rd of April and I will 
 
                 check him two to three weeks later to see if, in 
 
                 fact, he is tolerating the work or not, as an iron 
 
                 worker.
 
            
 
            (joint exhibit 2, page 12)
 
            
 
                 Once claimant was released to return to work, the 
 
            employer would not let him work with a splint on his elbow.  
 
            
 
                 Claimant stated that after the second surgery he was 
 
            not scheduled to undertake physical therapy, but proceeded 
 
            to do exercises at home.  His arm continued to hurt with 
 
            neither the brace nor elastic helping stabilize the elbow.  
 
            When claimant asked the union for light duty work, he was 
 
            told that none existed for an iron worker.  As of the date 
 
            of the hearing, claimant had not returned to work.
 
            
 
                 In April and May of 1991 the company employed a 
 
            vocational rehabilitationist, Karma Gibson, to assist 
 
            claimant in identifying transferable job skills and finding 
 
            suitable employment.  Claimant's search for suitable 
 
            employment has been hindered by his ability to read, which 
 
            claimant described as having problems with "big words."  
 
            Additionally, claimant has problems spelling words and 
 
            performing almost any type of mathematic problem.  He can, 
 
            however, read blueprints.  
 
            
 
                 According to claimant he met only one time with the 
 
            vocational rehabilitationist.  At a later date she sent 
 
            claimant a letter regarding jobs for which he could apply 
 
            and claimant did contact some, if not most, of the employers 
 
            supplied to him (jt. ex. 5, pp. 1-8).  
 
            
 
                 Another vocational rehabilitation expert was employed 
 
            by the defendant employer.  Douglas Nelson supplied claimant 
 
            with yet another list of potential employers.  He also 
 
            evaluated claimant's overall work history and potential for 
 
            employment and found that claimant reads at a seventh grade 
 
            level, spelled at a third grade level and possessed 
 
            mathematic skills of a third grader.  A list of job titles 
 
            which fell at or below the light, physical demand 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            classification was supplied to claimant.  These titles 
 
            included solderer, assembler of small products, injection 
 
            machine off-bearer, folding machine operator, electrical 
 
            assembler, parking lot attendant, cafeteria attendant, and a 
 
            laundry sorter.  Again, claimant was supplied with a list of 
 
            potential employers within the Cedar Rapids and Iowa City 
 
            areas (jt. ex. 6, pp. 1-15).  
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and his 
 
            disability.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            19, 1988, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Since the Second Injury Fund of Iowa is the sole 
 
            defendant in the case, this issue revolves around the fund's 
 
            exposure to liability.  As a result, it is necessary to 
 
            analyze whether claimant has sustained a prior permanent 
 
            disability.  
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 As noted earlier, claimant sustained an injury to his 
 
            left arm while serving in the Korean War.  He has received 
 
            two functional impairment ratings, one from the Veteran's 
 
            Administration medical personnel who deemed claimant to have 
 
            a 30 percent impairment of the left upper extremity.  
 
            Richard Neiman, M.D., performed an evaluation of claimant's 
 
            restrictions on March 11, 1991.  Dr. Neiman noted loss of 
 
            tissue in the left humerus area with some numbness.  He 
 
            agreed with the 30 percent functional impairment rating to 
 
            the left upper extremity (jt. ex. 3, pp. 2, 4).  
 
            
 
                 Dr. Neiman also evaluated claimant's right upper 
 
            extremity.  Upon examination he noted weakness in the 
 
            forearm, brachia radialis and extensor indocis, proprious.  
 
            He also noted loss of range of motion and assigned a 15 
 
            percent functional impairment rating to the right upper 
 
            extremity (jt. ex. 3, pp. 2, 4).  
 
            
 
                 In May of 1991 Dr. Hales, who was claimant's treating 
 
            physician, made an assessment as to claimant's functional 
 
            impairment of the right upper extremity and assigned 
 
            restrictions of no lifting or carrying greater than 20 
 
            pounds with the right upper extremity.  Dr. Hales also 
 
            opined that claimant's condition with respect to the right 
 
            upper extremity was caused by his employment at Abell-Howe 
 
            (jt. ex. 2, pp. 27, 29).
 
            
 
                 The greater weight of the evidence shows that not only 
 
            is claimant's condition, with respect to his right upper 
 
            extremity, a direct cause of a work injury, but the evidence 
 
            also shows that claimant has sustained a permanent 
 
            impairment to the left upper extremity.
 
            
 
                 It is also clear from the medical evidence that 
 
            claimant has sustained a permanent injury to his left upper 
 
            extremity due to a war injury.  Although the fund argues 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            that one impairment rating is stale, agency precedence shows 
 
            that the fund has been held responsible for payment of 
 
            benefits, even where a claimant has suffered a congenital 
 
            birth defect and later sustained a work related injury.  
 
            See, Shank v. Mercy Hospital Medical Center, (app. dec. 
 
            August 28, 1989). 
 
            
 
                 Having found that claimant has sustained a prior, 
 
            permanent disability, it is necessary to evaluate claimant's 
 
            industrial disability due to the combined effects of the two 
 
            impairments.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury claimant was 56 years old.  
 
            The majority of his work experience is as a welder.
 
            
 
                 He quit school after the fifth grade and other then the 
 
            usual lay offs common in the field of construction, he has 
 
            been continuously employed.  As discussed earlier, claimant 
 
            reads at a seventh grade level, spells at the third grade 
 
            level and performs mathematics at the third grade level.  
 
            
 
                 Emotionally, claimant appeared average.
 
            
 
                 Physically, claimant has sustained a severe, somewhat 
 
            unusual injury to the right elbow.  He endured a prolonged 
 
            period of medical treatment and underwent two surgeries.  
 
            Due to the effect of the combined disabilities, the type of 
 
            work for which claimant is suited falls within the light 
 
            physical demand classification.  Most of these jobs pay 
 
            between $4 and $6 per hour.  At the time of the injury 
 
            claimant was making almost $15 per hour.  His actual loss of 
 
            earnings, provided he secures employment, would probably be 
 
            at least 65 percent.  Claimant has been advised against 
 
            returning to his employment as a welder, a skill he has 
 
            practiced for more then 40 years.  
 
            
 
                 After considering all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained an industrial disability of 70 percent.  
 
            
 
                 The fund's liability is determined by using the 
 
            following formula:
 
                 
 
                  350 weeks   (industrial disability resulting from 
 
            combined                                   effects of all 
 
            injuries)
 
                 - 75 weeks   (impairment value of the prior loss: 30 
 
            percent                                    of 250 weeks)
 
                 - 37.5 weeks (impairment value of the second injury for                       
 
            which the employer is responsible 15 percent                        
 
            of 250 weeks)
 
                 _____________
 
                  237.5 weeks (amount for which second injury fund is                          
 
            responsible)
 
            
 
                 An additional issue which has been raised by the 
 
            defendant fund is that of whether claimant's injury is 
 
            actually an occupational disease.  If found to be such, this 
 
            defendant would be absolved of all liability.
 
            
 
                 Iowa Code section 85A is the applicable code section on 
 
            the determination of an occupational disease.   
 
            Specifically, Iowa Code section 85A.4 defines disablement:
 
            
 
                    Disablement as that term is used in this 
 
                 chapter is the event or condition where an 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 employee becomes actually incapacitated from 
 
                 performing the employee's work or from earning 
 
                 equal wages in other suitable employment because 
 
                 of an occupational disease as defined in this 
 
                 chapter in the last occupation in which such 
 
                 employee is injuriously exposed to the hazards of 
 
                 such disease.
 
            
 
                 Occupational disease is defined under Iowa Code section 
 
            85A.8:
 
            
 
                    Occupational diseases shall be only those 
 
                 diseases which arise out of and in the course of 
 
                 the employee's employment.  Such diseases shall 
 
                 have a direct causal connection with the 
 
                 employment and must have followed as a natural 
 
                 incident thereto from injurious exposure 
 
                 occasioned by the nature of the employment.  Such 
 
                 disease must be incidental to the character of the 
 
                 business, occupation or process in which the 
 
                 employee was employed and not independent of the 
 
                 employment.  Such disease need not have been 
 
                 foreseen or expected but after its contraction it 
 
                 must appear to have had its origin in a risk 
 
                 connected with the employment and to have resulted 
 
                 from that source as an incident and rational 
 
                 consequence.  A disease which follows from a 
 
                 hazard to which an employee has or would have been 
 
                 equally exposed outside of said occupation is not 
 
                 compensable as an occupational disease.
 
            
 
                 Furthermore, Iowa Code section 85A.14 provides:
 
            
 
                    No compensation shall be payable under this 
 
                 chapter for any condition of physical or mental 
 
                 ill-being, disability, disablement, or death for 
 
                 which compensation is recoverable on account of 
 
                 injury under the workers' compensation law.
 
            
 
                 The question of whether a medical condition constitutes 
 
            an occupational disease or an injury must be approached on a 
 
            case-by-case basis with close analysis of the specific 
 
            employment hazard giving rise to the condition.
 
            
 
                 The fund bases its argument that claimant sustained an 
 
            occupational disease on a series of responses to the fund's 
 
            questions regarding claimant's condition.  Specifically, Dr. 
 
            Hales' response when asked whether claimant's condition was 
 
            a result of a single traumatic incident at work or whether 
 
            it developed over a period of time due to the nature of the 
 
            work was answered as such, "Mr. McNamara's condition was not 
 
            a result of a single traumatic incident at work but did 
 
            develop over a period of time due to the nature of work at 
 
            Abell Howe."  Dr. Hales went on to state that, "It would be 
 
            my opinion that it could be described as a disease process 
 
            of common extensor origin which is a degenerative process of 
 
            the tendon, in this patient's case an actual rupture of the 
 
            tendon." (jt. ex. 2, pp. 26-27).
 
            
 
                 However, Dr. Hales also indicated that claimant's 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            injury was due to a cumulative trauma and falls under the 
 
            broad use of overuse syndrome. 
 
            
 
                 Although many decisions have dealt with the issue of 
 
            whether a claimant has sustained an injury or occupational 
 
            disease, there is no clear, bright line that establishes 
 
            guidelines to follow when determining what constitutes an 
 
            injury and what constitutes an occupational disease.  
 
            Therefore, each determination is made on a case by case 
 
            basis.
 
            
 
                 In the case at bar, several factors support a finding 
 
            that claimant sustained an injury while on the job.  First 
 
            of all, he was performing an assignment that was only a 
 
            portion of his overall duties conducted on the job site.  
 
            Airdrilling holes in beams was not his constant, 
 
            day-after-day work.  The majority of his work consisted of 
 
            welding.
 
            
 
                 Second, the defendant did not produce any evidence to 
 
            suggest that welders, who were assigned airdrilling duties, 
 
            consistently developed the same type of injury sustained by 
 
            claimant.
 
            
 
                 Last, claimant sustained what was sometimes referred to 
 
            as a "ruptured" tendon.  The word "rupture" indicates a 
 
            traumatic injury.
 
            
 
                 The undersigned is unwilling to find that claimant's 
 
            work-related injury was that of an occupational disease.  
 
            Even if the work-related injury had been found to have been 
 
            an occupational disease, agency precedence is unclear as to 
 
            whether it is mandated that an occupational disease to a 
 
            scheduled member be evaluated industrially or functionally.
 
            
 
                 The last issue to be addressed is whether the defendant 
 
            fund is entitled to a credit as provided for under Iowa Code 
 
            section 85.64 which states in relevant part:
 
            
 
                    Any benefits received by any such employee, or 
 
                 to which the employee may be entitled, by reason 
 
                 of such increased disability from any state or 
 
                 federal fund or agency, to which said employee has 
 
                 not directly contributed, shall be regarded as a 
 
                 credit to any award made against said second 
 
                 injury fund as aforesaid.
 
            
 
                 The undersigned is not persuaded by the fund's 
 
            argument.  
 
            
 
                 Social security is a government program to which 
 
            claimant has directly contributed.  The amount of social 
 
            security disability benefits received by claimant may be 
 
            reduced as a result of the workers' compensation award, but 
 
            no credit will be given to the fund under this code section.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 That defendant fund shall pay claimant permanent 
 
            partial disability payments for 237.5 weeks at the workers' 
 
            compensation rate of three hundred thirty seven and 73/100 
 
            dollars ($337.73) per week beginning May 10, 1990.
 
            
 
                 That defendant fund shall pay the accrued weekly 
 
            benefits in a lump sum.
 
            
 
                 That defendant fund pay interest on benefits awarded 
 
            herin as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant fund pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant fund file claim activity reports upon 
 
            payment of the award as required by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Ave SW  STE 114
 
            Cedar Rapids, IA  52404
 
            
 
            Mr. Charles Lavorato
 
            Assistant Attorney General
 
            Hoover State Office Bldg.
 
            Des Moines, IA  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51803
 
                      Filed October 22, 1991
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            REGIS MCNAMARA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  943914
 
            ABELL-HOWE,                   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNKNOWN,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            Claimant, 56 years of age at the time of the injury, 
 
            sustained a ruptured tendon at the elbow.  Eventually, he 
 
            received a 15 percent functional impairment to the right 
 
            upper extremity. 
 
            Claimant had previously sustained a loss of 30 percent of 
 
            his left upper extremity.
 
            Claimant's scholastic abilities are at the third grade 
 
            level.  He had only completed the fifth grade, with no 
 
            further education or training.
 
            Claimant awarded 70 percent industrial disability.
 
            
 
 
            
 
 
 
 
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            CHARLES KRATZER,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 943924
 
            E.I. DUPONT DeNEMOURS & CO.,    
 
                                                   A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            KEMPER 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 issues on appeal are:  Whether claimant's May 7, 1990 
 
            injury is a cause of permanent disability; the nature and 
 
            extent of claimant's permanent disability, if any; and 
 
            whether claimant is entitled to certain medical benefits.
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed June 16, 1992 are adopted as set forth below.  
 
            Segments designated by brackets ([ ]) indicate language that 
 
            is in addition to the language of the proposed agency 
 
            decision.
 
            
 
                 Claimant was born on March 10, 1945, and completed the 
 
            twelfth grade of school.  Claimant commenced working for 
 
            employer on July 28, 1978.  On May 7, 1990, claimant 
 
            sustained a flash burn to his face, ears, right arm, and 
 
            hands, when chemical solvent ignited while he was running a 
 
            filling machine.  
 
            
 
                 The medical evidence in the record reveals that 
 
            claimant was admitted to the University of Iowa Burn Unit on 
 
            May 7, 1990.  He was discharged by G. Patrick Kealey, M.D., 
 
            medical director, on May 14, 1990.  He was released to Lee 
 
            County Health Department for assistance with burn care.  He 
 
            was also referred to Fort Madison Community Hospital for 
 
            rehabilitative therapy.  On June 8, 1990, Dr. Kealey 
 
            certified that claimant was ready for employment.  He 
 
            advised claimant to work in an environment which protected 
 
            his burn wounds from trauma and to avoid excessive exposure 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to potential harm from chemicals or solvents.  Dr. Kealey 
 
            reported, "I would expect with the passage of time that 
 
            these problems will resolve and that you should have a very 
 
            satisfactory and completely functional recovery from your 
 
            burn injury."  (exhibit 13, page 212).  
 
            
 
                 Claimant requested counseling and Dr. Kealey 
 
            recommended referral to J.C. Noel Brown, M.D., psychiatrist.  
 
            Dr. Brown saw claimant on July 5, 1990.  Claimant appeared 
 
            to be anxious and depressed.  A follow-up visit on July 25, 
 
            1990, found him more relaxed, more comfortable with himself 
 
            and more optimistic for the future (ex. 18, p. 233).  [In a 
 
            letter written July 26, 1990 Dr. Brown wrote that "[t]he 
 
            differential diagnosis was that of Major Depression with 
 
            strong Axis IV Stressors, or Post Traumatic Stress Syndrome 
 
            secondary to the accident on the job situation"  (ex. 4, p. 
 
            12 and ex. 18, p. 233).  When Dr. Brown saw claimant on July 
 
            25, 1990 claimant had a very clear cut improvement but was 
 
            still fearful at the job situation, particularly when he 
 
            neared the area of the accident (ex. 4, p. 12 and ex. 18, p. 
 
            233).]
 
            
 
                 Claimant continued to experience stressors in his 
 
            personal and work life and he continued to see Dr. Brown for 
 
            counseling.  On February 12, 1991, Dr. Brown reported that 
 
            he stopped claimant's Prozac and did not start him on 
 
            another anti-depressant.  He indicated that claimant's job 
 
            situation is a psychosocial stressor militating against his 
 
            recovery (ex. 17, pp. 229-230).  
 
            
 
                 Although claimant testified that he continues to be 
 
            treated by Dr. Brown, the record contains no medical 
 
            evidence from Dr. Brown after February 12, 1991.  [Claimant 
 
            testified that he currently works out doors.  He stated that 
 
            he was conscious of heat, the smell of smoke bothers him, 
 
            and that psychological counseling had lessened but not cured 
 
            his fears of being around a fire.  Claimant was unable to 
 
            say how many times he seen Dr. Brown since February 1991.]
 
            
 
                 On November 13, 1991, claimant underwent a disability 
 
            evaluation by Nick Laubenthal, L.P.T., M.A.  Claimant 
 
            presented with subjective complaints of intolerance to heat, 
 
            cold, ultraviolet light, and petrochemicals.  He also 
 
            complained that compression on his left forearm is 
 
            uncomfortable and that he has itching and hyper/hypohidrosis 
 
            of selected areas.  Mr. Laubenthal observed that claimant 
 
            had a moderate tan from being out in the sun.  On 
 
            examination, he noted an area of hypopigmentation 
 
            circumferential on the distal 2/3 of claimant's left forearm 
 
            with full hair regrowth.  He also observed a small area of 
 
            hypertrophic scarring on the left anterior shoulder and a 
 
            small area of hypopigmentation on the right mid forearm.  
 
            Also evident was scattered hypopigmented areas on the dorsum 
 
            of both hands and fingers.  Clinically, claimant was 
 
            reported to be intact to light touch over both upper 
 
            extremities, face and ears.  Range of motion in both 
 
            shoulders, elbows, wrists, fingers and thumbs were within 
 
            normal limits.  Strength in all joints in both upper 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            extremities was also within normal limits (ex. 20, pp. 
 
            242-243).
 
            
 
                 On November 13, 1991, claimant was seen by Dr. Kealey 
 
            for a disability rating.  After reviewing the claimant's 
 
            medical history and noting his complaints, Dr. Kealey 
 
            described claimant's skin disease as a Class One impairment.  
 
            He explained as follows:
 
            
 
                 A person belongs in Class One impairment when 
 
                 signs and symptoms of skin disorder are present, 
 
                 and with treatment there is no limitation, or 
 
                 minimal limitation, in the performance of the 
 
                 activities of daily living although exposure to 
 
                 certain physical or chemical agents might increase 
 
                 limitation temporarily.  On the basis of this 
 
                 finding I would assign you a 1% whole man 
 
                 disability.  This is permanent, it is unlikely to 
 
                 change in the future,...
 
            
 
            (exhibit 19, pages 240-241)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed June 16, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            work-related injury on May 7, 1990.  Since claimant has 
 
            suffered an injury, the next question to be resolved is 
 
            whether the injury has caused a permanent disability.  
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that the injury of May 7, 1990, is causally related 
 
            to the disability on which he now bases his claim.  Bodish 
 
            v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  Lindahl 
 
            v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  Burt, 
 
            73 N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this instance, Dr. Kealey, claimant's treating 
 
            physician, gave claimant a one percent whole man disability 
 
            due to his skin disease and noted that he has no limitations 
 
            in the performance of activities of daily living although 
 
            exposure to certain physical or chemical agents may 
 
            temporarily increase his limitation.  Mr. Laubenthal 
 
            reported that, on examination, claimant had full range of 
 
            motion of the affected areas and normal strength in all the 
 
            joints of his upper extremities.
 
            
 
                 [Dr. Kealey did indicate that claimant's condition is 
 
            permanent.  There is no contrary evidence in the record.  
 
            Claimant has proven that his physical impairment is 
 
            permanent.
 
            
 
                 Under the record of this case it cannot be said that 
 
            claimant has suffered a permanent psychological condition 
 
            because of his work injury.  According to Dr. Brown claimant 
 
            improved rather quickly between July 5, 1990 and July 25, 
 
            1990 following the May 7, 1990 injury.  Although claimant 
 
            continued to have some psychological problems, there is no 
 
            reliable indication to the extent of those problems.  There 
 
            is no medical evidence of treatment after February 1991 and 
 
            claimant was unable to say how many times he had seen Dr. 
 
            Brown after February 1991.  Furthermore, some of Dr. Brown's 
 
            notes (ex. 18, pp. 234-238) indicates that the source of 
 
            claimant's psychological condition may be something other 
 
            than the work injury.  Claimant has not proved that his work 
 
            injury caused or aggravated a permanent psychological 
 
            condition.
 
            
 
                 The next issue to be resolved is the nature of 
 
            claimant's disability.  Claimant has no scarring of the face 
 
            or head.  Therefore, Iowa Code section 85.34(2)(t) does not 
 
            apply.  
 
            
 
                 Mr. Laubenthal observed that claimant had scarring or 
 
            hypopigmentation on the left and right forearm and on the 
 
            left anterior shoulder.  Dr. Kealey's impairment of the skin 
 
            presumedly would be an impairment to the skin where the 
 
            scarring or hypopigmentation occurred.  Because claimant's 
 
            disability was to both arms and a shoulder, claimant is to 
 
            be evaluated under Iowa Code section 85.34(2)(u).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience 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.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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 
 
            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.  Iowa Code section 
 
            85.34.]
 
            
 
                 Claimant testified that he returned to work with 
 
            employer in June 1990.  By choice he works outdoors as a 
 
            yard service supervisor.  According to Robert Daugherty 
 
            claimant's supervisor, he performs this job satisfactorily 
 
            and without any accommodations. Claimant earns $14 an hour 
 
            and works extensive overtime on weekends.
 
            
 
                 The greater weight of the medical evidence supports the 
 
            finding that claimant does not have a serious disability 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            which [little] affects his earning capacity.  Claimant's 
 
            skin disease imposes ***** limitation on his ability to 
 
            physically function or engage in activities of daily living.  
 
            *****  He earns more now than he did when he was injured and 
 
            he has no restrictions in the number of hours he can work or 
 
            the type of physical activity he can perform.  While he has 
 
            scattered hypopigmented areas on the dorsum of both hands 
 
            and fingers, they are without scarring.  None of the 
 
            affected burnt areas are limited in range of motion or 
 
            strength.  He has no loss of use of his upper extremities 
 
            *****.  
 
            
 
                 *****
 
            
 
                 [As discussed above claimant has not demonstrated that 
 
            he has a permanent psychological condition because of his 
 
            injury.  Claimant alleges that he has a fear of fire and is 
 
            sensitive to weather conditions.  Although he may be 
 
            sensitive to weather conditions he currently works well 
 
            outdoors.  Claimant's fear of fire would not be a 
 
            significant factor in his loss of earnings capacity.
 
            
 
                 When all the factors of industrial disability and the 
 
            evidence of this case are considered, it is concluded that 
 
            claimant has suffered a one percent industrial disability as 
 
            a result of his May 7, 1990 injury.
 
            
 
                 The parties stipulated to weekly benefits from May 7, 
 
            1990 through June 22, 1990.  Because claimant has proved 
 
            entitlement to permanent disability benefits, weekly 
 
            benefits during the period should be healing period 
 
            benefits.
 
            
 
                 It is impossible to tell whether the balance due in 
 
            exhibit 22 was for drugs that were related to treatment of 
 
            claimant's physical or mental condition caused by claimant's 
 
            work injury. The party who would suffer loss if an issue 
 
            were not established has the burden of proving that issue by 
 
            a preponderance of the evidence.  Iowa R. App. P. 14(f).  
 
            Claimant has failed to prove that he is entitled to the 
 
            medical bill in exhibit 22.]
 
            WHEREFORE, the decision of the deputy is reversed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            That defendants are to pay unto claimant healing period 
 
            benefits from May 7, 1990  until June 22, 1990, at the rate 
 
            of three hundred eighty and 58/100 dollars ($380.58) per 
 
            week.
 
            That defendants are to pay unto claimant five (5) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred eighty and 58/100 dollars ($380.58) per week from 
 
            June 23, 1990.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum.
 
            That defendants shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            That defendants are to be given credit for benefits 
 
            previously paid.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1087
 
            Keokuk, Iowa 52632
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1803
 
                                             Filed August 20, 1993
 
                                             Byron K. Orton
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            CHARLES KRATZER,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 943924
 
            E.I. DUPONT DeNEMOURS & CO.,    
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            KEMPER INSURANCE CO.,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant suffered a burn injury to his face, head, arms and 
 
            shoulder which resulted in scars or hypopigmentation on his 
 
            arms and shoulder.  The treating physician gave claimant a 
 
            one percent impairment rating because of the skin condition 
 
            and said the condition was permanent.  Claimant was found to 
 
            have a permanent disability.  There was no scarring of the 
 
            face or head.  Claimant was evaluated industrially under 
 
            Iowa Code section 85.34(2)(u).
 
            
 
            Other than the impairment of a limited area of claimant's 
 
            skin claimant had no functional disability.  He had 
 
            sensitivity to temperature that was tolerated well.  He had 
 
            no loss of earnings.  It was determined that claimant had 
 
            suffered a one percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES KRATZER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 954475 and 943924
 
            E.I. DUPONT DeNEMOURS & CO.,  :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE CO.,         :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Kratzer, claimant, against E.I. DuPont DeNemeours & Co., 
 
            employer, and Kemper Insurance, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of injuries sustained on May 7, 
 
            1990 (942924) and October 2, 1990 (954475).  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on June 2, 1992, in Burlington, Iowa.  The 
 
            record in this case consists of joint exhibits 1 through 22.  
 
            The claimant was present and testified at the hearing.  Also 
 
            present and testifying was Robert Daugherty.   The record 
 
            was considered fully submitted at the close of the hearing.  
 
            
 
                 At the hearing, claimant expressed an intent to dismiss 
 
            litigation in file number 954475.  That verbal dismissal was 
 
            accepted by the deputy, although claimant was also directed 
 
            to submit the dismissal in writing.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            2, 1992, the parties have submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant's May 7, 1990, injury is a cause 
 
            of permanent disability;
 
            
 
                 2.  The extent to entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury;
 
            
 
                 3.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability; and
 
            
 
                 4.  Whether claimant is entitled to certain medical 
 
            benefits under Iowa Code section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 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 March 10, 1945, and completed the 
 
            twelfth grade of school.  Claimant commenced working for 
 
            employer on July 28, 1978.  On May 7, 1990, claimant 
 
            sustained a flash burn to his face, ears, right arm, and 
 
            hands, when chemical solvent ignited while he was running a 
 
            filling machine.  
 
            
 
                 The medical evidence in the record reveals that 
 
            claimant was admitted to the University of Iowa Burn Unit on 
 
            May 7, 1990.  He was discharged by G. Patrick Kealey, M.D., 
 
            medical director, on May 14, 1990.  He was released to Lee 
 
            County Health Department for assistance with burn care.  He 
 
            was also referred to Fort Madison Community Hospital for 
 
            rehabilitative therapy.  On June 8, 1990, Dr. Kealey 
 
            certified that claimant was ready for employment.  He 
 
            advised claimant to work in an environment which protected 
 
            his burn wounds from trauma and to avoid excessive exposure 
 
            to potential harm from chemicals or solvents.  Dr. Kealey 
 
            reported, "I would expect with the passage of time that 
 
            these problems will resolve and that you should have a very 
 
            satisfactory and completely functional recovery from your 
 
            burn injury."  (exhibit 13, page 212).  
 
            
 
                 Claimant requested counseling and Dr. Kealey 
 
            recommended referral to J.C. Noel Brown, M.D., psychiatrist.  
 
            Dr. Brown saw claimant on July 5, 1990.  Claimant appeared 
 
            to be anxious and depressed.  A follow-up visit on July 25, 
 
            1990, found him more relaxed, more comfortable with himself 
 
            and more optimistic for the future (ex. 18, p. 233).  
 
            
 
                 Claimant continued to experience stressors in his 
 
            personal and work life and he continued to see Dr. Brown for 
 
            counseling.  On February 12, 1991, Dr. Brown reported that 
 
            he stopped claimant's Prozac and did not start him on 
 
            another anti-depressant.  He indicated that claimant's job 
 
            situation is a psychosocial stressor militating against his 
 
            recovery (ex. 17, pp. 229-230).  
 
            
 
                 Although claimant testified that he continues to be 
 
            treated by Dr. Brown, the record contains no medical 
 
            evidence from Dr. Brown after February 12, 1991.  
 
            
 
                 On November 13, 1991, claimant underwent a disability 
 
            evaluation by Nick Laubenthal, L.P.T., M.A.  Claimant 
 
            presented with subjective complaints of intolerance to heat, 
 
            cold, ultraviolet light, and petrochemicals.  He also 
 
            complained that compression on his left forearm is 
 
            uncomfortable and that he has itching and hyper/hypohidrosis 
 
            of selected areas.  Mr. Laubenthal observed that claimant 
 
            had a moderate tan from being out in the sun.  On 
 
            examination, he noted an area of hypopigmentation 
 
            circumferential on the distal 2/3 of claimant's left forearm 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with full hair regrowth.  He also observed a small area of 
 
            hypertrophic scarring on the left anterior shoulder and a 
 
            small area of hypopigmentation on the right mid forearm.  
 
            Also evident was scattered hypopigmented areas on the dorsum 
 
            of both hands and fingers.  Clinically, claimant was 
 
            reported to be intact to light touch over both upper 
 
            extremities, face and ears.  Range of motion in both 
 
            shoulders, elbows, wrists, fingers and thumbs were within 
 
            normal limits.  Strength in all joints in both upper 
 
            extremities was also within normal limits (ex. 20, pp. 
 
            242-243).
 
            
 
                 On November 13, 1991, claimant was seen by Dr. Kealey 
 
            for a disability rating.  After reviewing the claimant's 
 
            medical history and noting his complaints, Dr. Kealey 
 
            described claimant's skin disease as a Class One impairment.  
 
            He explained as follows:
 
            
 
                 ...A person belongs in Class One impairment when 
 
                 signs and symptoms of skin disorder are present, 
 
                 and with treatment there is no limitation, or 
 
                 minimal limitation, in the performance of the 
 
                 activities of daily living although exposure to 
 
                 certain physical or chemical agents might increase 
 
                 limitation temporarily.  On the basis of this 
 
                 finding I would assign you a 1% whole man 
 
                 disability.  This is permanent, it is unlikely to 
 
                 change in the future,...
 
            
 
            (exhibit 19, pages 240-241)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            work-related injury on May 7, 1990.  Since claimant has 
 
            suffered an injury, the next question to be resolved is 
 
            whether the injury has caused a permanent disability.  
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that the injury of May 7, 1990, is causally related 
 
            to the disability on which he now bases his claim.  Bodish 
 
            v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  Lindahl 
 
            v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  Burt, 
 
            73 N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 In this instance, Dr. Kealey, claimant's treating 
 
            physician, gave claimant a 1 percent whole man disability 
 
            due to his skin disease and noted that he has no limitations 
 
            in the performance of activities of daily living although 
 
            exposure to certain physical or chemical agents may 
 
            temporarily increase his limitation.  Mr. Laubenthal 
 
            reported that, on examination, claimant had full range of 
 
            motion of the affected areas and normal strength in all the 
 
            joints of his upper extremities.
 
            
 
                 Claimant testified that he returned to work with 
 
            employer in June 1990.  By choice he works outdoors as a 
 
            yard service supervisor.  According to Robert Daugherty 
 
            cliamant's supervisor, he performs this job satisfactorily 
 
            and without any accommodations. Claimant earns $14 an hour 
 
            and works extensive overtime on weekends.
 
            
 
                 The greater weight of the medical evidence supports the 
 
            finding that claimant does not have a serious disability 
 
            which affects his earning capacity.  Claimant's skin disease 
 
            imposes no limitations on his ability to physically function 
 
            or engage in activities of daily living.  Claimant has no 
 
            facial scarring and is not eligible for benefits under Iowa 
 
            Code section 85.34(2)(t).  Furthermore, claimant has 
 
            suffered no industrial disability.  He earns more now than 
 
            he did when he was injured and he has no restrictions in the 
 
            number of hours he can work or the type of physical activity 
 
            he can perform.  While he has scattered hypopigmented areas 
 
            on the dorsum of both hands and fingers, they are without 
 
            scarring.  None of the affected burnt areas are limited in 
 
            range of motion or strength.  He has no loss of use of his 
 
            upper extremities and his burn injuries do not extend into 
 
            the body as a whole.  
 
            
 
                 Therefore, claimant has not met his burden of proof 
 
            regarding permanency.  He has failed to show by a 
 
            preponderance of the evidence that he has suffered burn 
 
            injuries that have resulted in permanent physical 
 
            impairment.
 
            
 
                 This issue is dispositive of the entire case and 
 
            further analysis is unnecessary.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Case number 954475 is dismissed and claimant shall take 
 
            nothing.
 
            
 
                 Case number 943924, claimant shall take nothing from 
 
            these proceedings.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The costs of this action in case number 943924 are 
 
            assessed to defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO Box 1087
 
            Keokuk, Iowa  52632-1087
 
            
 
            Ms. Vicki Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St.
 
            Davenport, Iowa  52801
 
            
 
                 
 
            
 
 
            
 
           
 
             
 
            
 
            
 
                                               51803
 
                                               Filed June 16, 1992
 
                                               Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CHARLES KRATZER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                           File Nos. 954475 and 943924
 
            E.I. DUPONT DeNEMOURS & CO.,  
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            KEMPER INSURANCE CO.,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            
 
            Claimant has failed to show by a preponderance of the 
 
            evidence that he suffered burn injuries that resulted in 
 
            permanent physical impairment.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                      2700
 
                                      Filed June 8, 1995
 
                                      DAVID RASEY
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
________________________________________________________________
 
          
 
SUSAN DeKRUIF-BRUSCHER, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 943938
 
FOX RIVER MILLS,   
 
                                    EXPEDITED HEARING
 
     Employer, 
 
                                        DECISION
 
and       
 
                                     (343 IAC 4.44)
 
THE TRAVELERS,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
2700
 
Medical mileage accrued prior to April 1, 1995 was ordered 
 
reimbursed at the former rate of $.21 per mile.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 ________________________________________________________________
 
          
 
SUSAN DeKRUIF-BRUSCHER, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 943938
 
FOX RIVER MILLS,   
 
                                     EXPEDITED HEARING
 
     Employer, 
 
                                         DECISION
 
and       
 
                                      (343 IAC 4.44)
 
THE TRAVELERS,     
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                  STATEMENT OF THE CASE
 
 
 
This is a contested case proceeding under Iowa Code chapter 17A.  
 
Claimant, Susan DeKruif-Bruscher, sustained a work-related injury in 
 
the employ of Fox River Mills in 1989 and now seeks medical benefits 
 
under Iowa Code chapter 85.27.  Ms. DeKruif-Bruscher filed a petition 
 
seeking relief under the expedited contested case rule at 343 IAC 4.44. 
 
 
 
Defendants are employer Fox River Mills and its insurance carrier, 
 
Travelers Insurance Company.
 
 
 
This case was heard and fully submitted in Mason City, Iowa on May 15, 
 
1995.  The record consists of claimant's exhibits 1 through 7, 
 
defendants' exhibits A through C and the testimony of claimant and 
 
Linda Williams.
 
 
 
                             ISSUES
 
 
 
The sole issue presented for resolution is whether certain medical 
 
expenses are compensable as being causally related to the original work 
 
injury.
 
 
 
                         FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner finds:
 
 
 
Claimant originally filed a petition in arbitration in 1990, alleging a 
 
repetitive injury to the arms and shoulders of December 11, 1989.  The 
 
parties eventually entered into an agreement for settlement which was 
 
approved by the agency on July 22, 1991.  The agreement for settlement 
 
stipulated that claimant's bilateral upper extremity and shoulder 
 
problems arose out of and in the course of employment, resulting in 
 
both temporary and permanent disability, and specifically states:
 
     
 
     This Agreement acknowledges that Claimant has a functional 
 
disability and that certain symptomology related to the injury 
 
and the permanent functional disability exists.  These symptoms 
 
are expected to continue indefinitely, to a greater or lesser 
 
degree, as conditions and Claimant's activity level vary.
 
 
 
The agreement for settlement further set out that defendants remained 
 
responsible for authorized medical care, provided that such care is 
 
causally related to the work injury.
 
 
 
Causation is the dispute with respect to the medical benefits sought 
 
here, except for 330 miles in unreimbursed mileage which claimant 
 
accrued when she visited the University of Iowa Hospitals and Clinics 
 
in August 1994 at defendants' request.  Defendants have furnished no 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
explanation whatsoever for their failure to reimburse this mileage.
 
According to a letter dated September 30, 1994, case manager Linda 
 
Williams rejected certain prescription expenses because a recent 
 
diagnosis of fibromyalgia rendered by Dr. Robin Hovis was for a 
 
condition which Williams did not think related to the 1989 injury.  
 
 
 
This position is apparently because of a previous diagnosis of 
 
myofascial pain syndrome reached by M. Paul Strottmann, M.D., also of 
 
the University of Iowa Hospitals and Clinics on May 2, 1990, and 
 
attached to the agreement for settlement.  Dr. Hovis wrote on February 
 
17, 1995 that fibromyalgia is a chronic pain syndrome of uncertain 
 
etiology and that it was "unclear if her current symptoms relate to the 
 
previous diagnosis of myofascial pain."  Dr. Hovis went on to note 
 
occasional reports of fibromyalgia beginning with myofascial pain, but 
 
opining that in general the condition has insidious onset without clear 
 
antecedent trauma.
 
 
 
Dr. Strottmann, on the other hand, wrote on May 2, 1995 that his 
 
earlier diagnosis of fibromyalgia on April 7, 1992 was based on a 
 
finding of increased pain and more widespread tenderness, but that the 
 
symptoms and physical findings represented "a continuation of the 
 
symptoms and findings" noted in 1990.  Dr. Strottmann concluded that 
 
the fibromyalgia was likely related to his previous diagnosis of 
 
myofascial pain, and that the current condition arose from the 
 
previously diagnosed condition.
 
 
 
Of course, myofascial pain syndrome was not the only diagnosis offered 
 
with respect to the 1989 injury.  Documents attached to the settlement 
 
agreement include an evaluation by Kenneth B. Washburn, M.D., dated 
 
April 26, 1990, in which Dr. Washburn reported a diagnosis of bilateral 
 
upper extremity pain, etiology unknown, without nerve entrapment and a 
 
history of earlier thoracic outlet surgery.  Dr. Washburn also reported 
 
that Dr. Thomsen believed claimant might have "a fibromyositis syndrome 
 
or even some systemic collagen vascular disorder and a rheumatology 
 
consult was suggested.  On April 11th, she saw Dr. Trimble who felt 
 
that this was a regional pain syndrome "
 
 
 
This diversity of opinion as to the condition claimant suffered from in 
 
1989 is a likely explanation for why the condition was not identified 
 
in the agreement for settlement other than "bilateral upper extremity 
 
and shoulder problems."  Indeed, agency experience with soft tissue 
 
repetitive motion injuries indicates that expert disagreement as to the 
 
correct diagnosis is much more the rule than the exception in such 
 
cases.
 
 
 
However, if it be assumed that both of Dr. Strottmann's diagnoses are 
 
correct, the basis upon which defendants have denied liability, his 
 
opinion on causation is still accepted as the most persuasive.  Dr. 
 
Strottmann has been a treating physician over an extended time and has 
 
had an opportunity to see claimant both in 1990 and in 1994.
 
 
 
                      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 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).
 
The symptoms for which disputed treatment and medications were sought 
 
in this case were essentially the same at the time of the agreement for 
 
settlement and, although perhaps somewhat increased, as when claimant 
 
was seen again by Dr. Strottmann in 1992.  As noted, it is extremely 
 
common for different practitioners to label soft tissue symptomotology 
 
with varying diagnoses, such as has been the case here.  Dr. 
 
Strottmann, who changed his diagnosis to fibromyalgia, believes a 
 
causal nexus to the original injury exists.  Dr. Hovis finds it unclear 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
if current symptoms relate to the previous diagnosis, but notes 
 
occasional reports of fibromyalgia beginning with myofascial.  It is 
 
held that claimant has met her burden of proof in establishing the 
 
necessary causal nexus between the original compensable injury and the 
 
medical benefits sought in these proceedings.
 
 
 
Those benefits include the University of Iowa bill for Dr. Hovis 
 
totalling $131.00 (Claimant's Exhibit 3) and prescription costs 
 
totalling $66.61 shown on exhibit 2 ($21.23 for Arthriten, $30.45 for 
 
Ascriptin and $14.90 for Salsalate).  
 
 
 
Claimant also accrued mileage of 330 miles to see Dr. Hovis.  Under 
 
rule 343 IAC 8.1, mileage incident to the use of a private automobile 
 
is reimbursed at a rate "the same as the state of Iowa reimburses its 
 
employees for travel."  In recent years, the state has reimbursed 
 
employees at the rate of $.21 per mile.  Effective April 1, 1995, state 
 
employees of executive branch agencies are reimbursed for use of 
 
private automobiles at the rate of $.24 where a state vehicle is not 
 
available.  There is no showing that a state vehicle was available to 
 
claimant in this case.  Nonetheless, the mileage was accrued prior to 
 
April 1, 1995, and is reimbursable at the former rate of $.21.
 
 
 
                             ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Defendants shall pay the University of Iowa Hospitals and Clinics bill 
 
totalling one hundred thirty-one and 00/100 dollars ($131.00), along 
 
with mileage expenses totalling sixty-nine and 30/100 dollars ($69.30). 
 
 
 
Defendants shall also reimburse claimant for prescription costs 
 
totalling sixty-six and 61/100 dollars ($66.61).
 
Costs, if any, are assessed to defendants.
 
 
 
Signed and filed this _____ day of June, 1995.         
 
                              ________________________________        
 
                              DAVID RASEY         
 
                              DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. R. Ronald Pogge
 
Attorney at Law
 
2700 Grand Avenue STE 111
 
Des Moines, Iowa 50321
 
 
 
Mr. William D. Scherle
 
Attorney at Law
 
8th Floor Fleming Building
 
218 Sixth Avenue
 
Des Moines, Iowa 50309
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100; 5-1108; 5-1803
 
                                          5-1803.1; 5-2206; 5-3200
 
                                          Filed February 5, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LISA A. KRIEGEL JOHNSON,      :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 943939
 
            vs.                           :                918816
 
                                          :
 
            WAL-MART,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1803.1; 5-1803; 5-2206
 
            Found 20-year-old claimant incurred a work injury on May 3, 
 
            1989, causing a permanent body as a whole impairment and a 
 
            10 pound lifting restriction with no lifting above the 
 
            mid-chest level.  Her right shoulder injury was a body as a 
 
            whole injury. Claimant incurred a 30% industrial disability.
 
            
 
            5-1803; 5-1803.1; 5-1100; 5-1108; 5-2206; 5-3200
 
            Found 20-year-old claimant incurred a work injury on 
 
            February 22, 1990 to her left shoulder causing a permanent 
 
            body as a whole impairment.  Claimant awarded 12% industrial 
 
            disability.
 
            Found Second Injury Fund not liable to claimant for any 
 
            benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            JAMES W. SARAZIN,               :
 
                                            :
 
                 Claimant,                  :        File No. 943942
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            CEDAR RAPIDS MEATS d/b/a        :        D E C I S I O N
 
            FARMSTEAD FOODS,                :
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 26, 1992 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            115 Third St. SE, Ste 1200
 
            Cedar Rapids, Iowa 52401-1266
 
            
 
            Mr. Gene R. LaSuer
 
            Ms. Becky S. Knutson
 
            Attorneys at Law
 
            2300 Financial Center
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            JAMES W. SARAZIN,               :
 
                                            :
 
                 Claimant,                  :        File No. 943942
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            CEDAR RAPIDS MEATS d/b/a        :        D E C I S I O N
 
            FARMSTEAD FOODS,                :
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 26, 
 
            1992.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES SARAZIN,                :
 
                                          :
 
                 Claimant,                :        File No. 943942
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            CEDAR RAPIDS MEATS d/b/a      :        D E C I S I O N
 
            FARMSTEAD,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, James W. Sarazin, against his employer, Cedar 
 
            Rapids Meats d/b/a Farmstead Foods, self-insured employer.  
 
            For the record, it is noted that defendant was represented 
 
            by Charles D. Crook, III, an attorney for the Commissioner 
 
            of the Insurance Division of Iowa, Trustee for Workers' 
 
            Compensation Claimants of Cedar Rapids Meats, Inc.  The case 
 
            was heard on March 9, 1992, at the Linn County courthouse.  
 
            The record consists of the testimony of claimant.  The 
 
            record also consists of claimant's exhibits 1-8 and 10.  
 
            Claimant's exhibit 9 was not admitted on the grounds of 
 
            relevancy.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent disability benefits; 4) the rate to be 
 
            used in calculating any benefits due; 5) whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27 and 
 
            an independent medical exam pursuant to section 85.39; and, 
 
            6) whether claimant is entitled to penalty benefits pursuant 
 
            to section 86.13.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 57 years old and single.  He obtained a GED 
 
            while he served in the U.S. Marine Corps.  After three years 
 
            in the Marines, claimant was honorably discharged.
 
            
 
                 Subsequent to his military career, claimant obtained 
 
            employment in a variety of fields.  He worked in an auto 
 
            assembly plant.  He worked as a vegetable cook.  Claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            drove an ice cream truck, later, a laundry truck and even a 
 
            fork lift truck.  Claimant operated lathes, machines and 
 
            table top woodworking saws.
 
            
 
                 In November of 1967, claimant became an employee of 
 
            Wilson's Foods, the precursor of Cedar Rapids Meats d/b/a 
 
            Farmstead Foods.  Claimant started as a scaler in the beef 
 
            cooler.  He held that position until 1979 when the beef unit 
 
            was discontinued and claimant transferred to the hog unit as 
 
            a scaler.
 
            
 
                 As a scaler, claimant engaged in repetitive activities.  
 
            Every hour he was required to lift as many as 100 forty 
 
            pound boxes onto a scale for measuring and marking.  
 
            Claimant moved the products from the right line to the left.  
 
            He was required to twist to the right side, pull the boxed 
 
            products onto the scale and then move the product to the 
 
            left.  Often, the duties necessitated bending over the line, 
 
            or lifting 40 pound boxes and stacking them as high as seven 
 
            boxes.
 
            
 
                 Claimant developed back problems in 1982.  After having 
 
            obtained medical attention, including a L5-4 lumbar 
 
            laminectomy, claimant returned to work.  In August of 1985, 
 
            all restrictions were lifted.  Claimant returned to his 
 
            regular duties at work, with regular wages.
 
            
 
                 Claimant continued working for defendant-employer in 
 
            his regularly assigned duties until approximately two weeks 
 
            before the plant closing.  Claimant testified he began 
 
            experiencing difficulties in the low back area.  According 
 
            to claimant, his back hurt, he moved in a bent position, he 
 
            took 12 Advil per day and consequently, claimant requested 
 
            annual leave.  At the same time, claimant was experiencing 
 
            arm pain.  The last day he worked was February 23, 1990.  
 
            However, medical evidence establishes there is no evidence 
 
            of reported low back problems until March of 1990.
 
            
 
                 On March 17, 1990, claimant had a semi-hemilaminectomy 
 
            at the L4-5 level.  Hugh P. MacMenamin, M.D., performed the 
 
            surgery.  He diagnosed the condition as acute sciatica and a 
 
            sequestered disc in the lumbar spine.  (Claimant's exhibit 
 
            1, page 14, lines 2-20)  Initially, Dr. MacMenamin did not 
 
            determine a cause for claimant's back condition.  Later, Dr. 
 
            MacMenamin opined that claimant's work could have made a 
 
            significant contribution to claimant's condition.  (Cl. ex. 
 
            1, p. 17, ll. 1-21)  Dr. MacMenamin also opined that work 
 
            could be a prominent factor in producing claimant's disc 
 
            disease.  However, he was not certain.  
 
            
 
                 Dr. MacMenamin opined that claimant reached maximum 
 
            medical improvement on January 30, 1991.  Claimant was 
 
            restricted from bending, lifting and twisting as well as 
 
            lifting more than 40 pounds.  (Cl. ex. 1, p. 23, ll. 18-21; 
 
            p. 33, ll. 15-20)
 
            
 
                 After claimant was released from his doctor's care on 
 
            January 30, 1991, claimant sought and found employment as a 
 
            security guard.  Initially he worked six days a week for 
 
            nine hours per day at one of the local colleges.  Later 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant's hours were reduced to 10 hours per week and 
 
            claimant was required to drive to Iowa City.  Claimant then 
 
            voluntarily terminated his employment.  Since terminating 
 
            his position claimant has been unemployed.  He has applied 
 
            for several jobs including one at General Mills.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is whether claimant's low 
 
            back condition is the result of an injury which arose out of 
 
            and in the course of claimant's employment.
 
            
 
                 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.  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, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (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, 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 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 
 
            ove felt low back pain, his complaints 
 
            were not voiced to the plant nurse despite the fact that 
 
            claimant had made visits to the nurse for arm pain.  Nor was 
 
            any back injury reported by claimant to any supervisors.  
 
            During February of 1990, claimant requested a week of annual 
 
            leave which was granted to him.  The last day he worked was 
 
            February 23, 1990.  Claimant testified he only "had a little 
 
            back pain", and that his arm was his major concern.
 
            
 
                 This deputy notes that even if claimant had "a little 
 
            back pain", he neglected to report the pain to the plant 
 
            physician, J. Quetsch, M.D., who on February 23, 1990, 
 
            examined claimant for arm pain only.  There was no reference 
 
            to any back problems (Ex. 7, p. 11).
 
            
 
                 After his week of annual leave, claimant was laid off 
 
            from the plant due to a lack of work.  According to 
 
            claimant's testimony, he went for a walk and he experienced 
 
            slight pain in his back and down his left side.  After his 
 
            walk, he experienced pain in his back, down both legs and 
 
            into his foot.  Claimant testified that gradually the pain 
 
            worsened to the point that claimant had to crawl up the 
 
            stairs.  As a result, claimant on March 17, 1990, called for 
 
            an ambulance to transport him to St. Luke's Hospital.
 
            
 
                 The hospital notes for March 17, 1990, reveal that 
 
            claimant had a history of back pain for several days (Ex. 7, 
 
            p. 25).  The history taken in the emergency room is 
 
            inconsistent with claimant's testimony that he experienced 
 
            back pain in February of 1990.
 
            
 
                 Likewise, the history taken by MacMenamin for March 17, 
 
            1990, is inconsistent with the history given to Marvin H. 
 
            Dubansky, M.D., on August 9, 1991.
 
            
 
                 Dr. MacMenamin's notes reveal that:
 
            
 
                 ADMISSION DATE:  3/17/90
 
            
 
                 The patient is a 54 year old white male who has 
 
                 just been laid off from Farmstead.  He developed 
 
                 low back pain two days ago and pain down the left 
 
                 posterolateral thigh.  The patient came to the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Trauma Center at St. Luke's Hospital with 
 
                 excruciating pain.  He was not able to walk and 
 
                 was not getting any relief from analgesia at home.  
 
                 The patient has had disk surgery approximately 
 
                 eight years ago by Dr. Roach.  He has done well 
 
                 since that time until this time.  He does not 
 
                 remember any specific incident or injury.  
 
                 (Emphasis added)
 
            
 
            (Ex. 7, p. 26)
 
            
 
                 On the other hand, the history given to Dr. Dubansky is 
 
            directly contrary.  That history reveals a specific trauma.  
 
            The history related in Dr. Dubansky's report of August 9, 
 
            1991, reads in relevant part:
 
            
 
                 HISTORY
 
            The patient states that he had surgery for a 
 
            herniated disc while working for the same employer 
 
            in 1982.  He got along fairly satisfactorily until 
 
            February of 1990.  He had had a carpal tunnel 
 
            release carried out a couple of years before, but 
 
            then had a lot of swelling in his right arm in 
 
            February of 1990, was using an elastic bandage and 
 
            taking a lot of Motrin.  He said that on or about 
 
            February 18th he hurt his back.  His job entailed 
 
            running an electronic scale.  Apparently he would 
 
            have to lift boxes from a stack that weighed 40 to 
 
            60 pounds and place them on the scale.  His back 
 
            hurt a little then, but over the next few days it 
 
            seemed to get worse.  He received a letter that he 
 
            no longer had insurance so he didn't go to the 
 
            doctor, but he waited a few more days, but he had 
 
            pain in the leg, which was so severe that he had 
 
            to go to the hospital by ambulance.
 
            
 
                 He was seen, examined and had an MRI which 
 
                 revealed a probable ruptured herniated nucleus 
 
                 pulposus at L4/5 on the left.
 
            
 
                 On March 27, 1990 he had surgery with removal of a 
 
                 large sequestrated fragment at L4/5 on the left.  
 
                 (Emphasis added)
 
            
 
            (Ex. 7, p. 12)
 
            
 
                 Finally, the notes of IMC for January 30, 1991, 
 
            indicate a third history.  Those notes provide:
 
            
 
                 30 Jan 91:  James Sarazin is seen for evaluation 
 
                 for impairment rating.  The patient is a 
 
                 55-year-old white male who underwent L5-4 lumbar 
 
                 laminectomy for a left L5 radiculopathy in 1982.  
 
                 At that time he was lifting pallets at work and 
 
                 developed pain.  He was seen and treated by Dr. 
 
                 Roach.  He did well following this until March 
 
                 1990.  After he was laid off for several weeks, he 
 
                 noted the onset of left leg pain again.  He states 
 
                 he had had several episodes of low back pain when 
 
                 he was working.  He developed a full blown lumbar 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 disc syndrome with sciatica and underwent again 
 
                 L4-5 semi-hemilaminectomy and excision of a 
 
                 sequestered disc.  Again he has done well since 
 
                 that time, although he now complains of some 
 
                 numbness in the left foot and occasional aching in 
 
                 his back.  He uses 5-6 aspirin a day sometimes 
 
                 though occasionally he won't use any.  He uses 
 
                 Aspercreme on his back.  He is not working.  He is 
 
                 on unemployment.  (Emphasis added)
 
            
 
            (Ex. 7, p. 5)
 
            
 
                 It is acknowledged that claimant suffered from 
 
            degenerative disk disease.  However, Dr. MacMenamin cannot 
 
            say with absolute certainty what caused that degenerative 
 
            disk disease.  (Cl. Ex. 1, p. 25, ll. 15-23).  It is 
 
            difficult for this deputy to comprehend which historical 
 
            rendition claimant is espousing.  Claimant seems to be 
 
            alleging a cumulative trauma, yet there are references to 
 
            specific traumatic events.  Each history which was related 
 
            by claimant was different.  Claimant has not consistently 
 
            told his version of the alleged work injury.  The versions 
 
            are inconsistent.  Claimant is not a credible historian.  He 
 
            has not convinced this deputy that he has sustained an 
 
            injury which arose out of and in the course of his 
 
            employment.  Claimant has failed to meet his burden of 
 
            proof.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from these proceedings.
 
            
 
                 Each party shall bear its own costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Charles S. Crook, III
 
            Attorney at Law
 
            Suite 1100, 218 Sixth Avenue
 
            Fleming Building
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1100; 1400; 1402.20; 1402.30; 2902
 
            Filed March 26, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JAMES SARAZIN,                :
 
                                          :
 
                 Claimant,                :        File No. 943942
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            CEDAR RAPIDS MEATS d/b/a      :        D E C I S I O N
 
            FARMSTEAD,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1100; 1400; 1402.20; 1402.30; 2902
 
            Claimant could not prove by a preponderance of the evidence 
 
            that he had sustained an injury which arose out of and in 
 
            the course of his employment.  The record was filled with 
 
            inconsistencies.  Claimant was a very poor historian.  There 
 
            were several versions of the alleged work injury.  The 
 
            undersigned was unable to determine whether claimant was 
 
            alleging that his injury was cumulative or whether claimant 
 
            was alleging a specific traumatic event.  Claimant was not 
 
            credible.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN M. JETTER,             :
 
                                          :
 
                 Claimant,                :         File No. 943950
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            CLAUDE BARKER,                :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Steven 
 
            M. Jetter against Claude Barker based upon injuries Jetter 
 
            sustained on July 8, 1988.  Jetter seeks compensation for 
 
            temporary total disability and payment of medical expenses.  
 
            The primary issue to be determined is whether an 
 
            employer-employee relationship existed between Jetter and 
 
            Barker at the time of the injury.  Barker contends that 
 
            Jetter was an independent contractor or was otherwise 
 
            self-employed.  The contingent issues include whether there 
 
            was injury which arose out of and in the course of 
 
            employment with Barker, determination of the extent of any 
 
            entitlement to temporary total disability and the weekly 
 
            rate of compensation.  The only issue regarding medical 
 
            expenses is that of liability.  Jetter contends that the 
 
            period of disability ended in late October 1988, while 
 
            Barker contends that it was on the last date that claimant 
 
            was seen by a physician.  Jetter contends that the rate of 
 
            compensation should be based upon earnings of $110 per week, 
 
            while Barker contends that the average earnings were 
 
            approximately $70 per week.
 
            
 
                 The case was heard at Sioux City, Iowa on May 15, 1991.  
 
            The record in the case consists of testimony from Steven M. 
 
            Jetter, Claude Barker and LeRoy Kent.  The record also 
 
            contains claimant's exhibits 1, 6, 7 and 7A.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 Steven M. Jetter is a 35-year-old single man who 
 
            resides at Sioux City, Iowa.  He has been afflicted with 
 
            epilepsy since age 10 and takes medication for the 
 
            condition.
 
            
 
                 Jetter has known Claude Barker since 1985 at which time 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Jetter performed some roofing work as an employee for 
 
            Barker.  Barker and Jetter then had little contact between 
 
            1985 and 1988.
 
            
 
                 In 1988, Barker and Jetter entered into an agreement 
 
            wherein Jetter assisted Barker in performing some roofing 
 
            work in Sioux City, Iowa.  Barker had two or three houses to 
 
            roof for general contractor LeRoy Kent.  There may also have 
 
            been other roofing work.  According to Barker, each of 
 
            Kent's houses usually involved approximately 60 squares of 
 
            roofing and required approximately two weeks of work.
 
            
 
                 According to Barker, the arrangement was that Jetter 
 
            was paid $10 per square, but was placed on the job with the 
 
            understanding that he would be responsible for himself.  
 
            According to Barker, Jetter was working for himself.  Barker 
 
            did, however, pay Jetter.  Barker also provided the tools 
 
            which Jetter used.  Barker is the only person who paid 
 
            Jetter for the roofing work.  Before placing Jetter on the 
 
            job, Barker consulted with LeRoy Kent.
 
            
 
                 According to Jetter, he was to be paid $5 per square.  
 
            According to Jetter, in an average day 4-5 squares of 
 
            shingles would be laid and approximately 25 squares would be 
 
            laid weekly.  Jetter's testimony that Barker instructed him 
 
            in how to lay shingles, set the hours and days of work and 
 
            provided Jetter with transportation to and from the work 
 
            sites is uncontradicted.  The materials used for roofing 
 
            were provided by the general contractor, LeRoy Kent.
 
            
 
                 Before commencing work on any of the projects, Jetter 
 
            did not provide Barker or anyone else with a written bid, 
 
            estimate or other type of document.  No written contracts of 
 
            any type existed between Jetter and either Barker or Kent.  
 
            Jetter was paid in cash.  Neither Jetter nor Barker 
 
            maintained any records of the amounts which were paid to 
 
            Jetter or the dates of payment.
 
            
 
                 It is found that Jetter's testimony regarding laying 
 
            approximately 25 squares of shingles per week and being paid 
 
            $5 per square is correct.  This computes to average weekly 
 
            earnings of $125.  The findings are consistent with Barker's
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            testimony that a typical LeRoy Kent house contained 60 
 
            squares of shingles and required approximately two weeks to 
 
            complete.
 
            
 
                 On July 8, 1988, while roofing a house, Jetter had an 
 
            epileptic seizure and fell to the ground, a distance which 
 
            has been estimated at from 35-50 feet.  In the fall, he 
 
            sustained fractures of his L1 and L2 vertebrae and of the 
 
            right ankle (exhibit 7).  In a report dated August 29, 1988, 
 
            the treating surgeon, Daniel M. Youngblade, M.D., indicated 
 
            that claimant was still recovering, but that a good recovery 
 
            was expected and that claimant should not have any permanent 
 
            injury or defect (exhibit 6).  The record does not contain 
 
            any medical evidence showing when claimant was released to 
 
            return to work.  Therefore, claimant's testimony that he was 
 
            released effective October 25, 1988 is accepted as being 
 
            correct.  From July 8 to October 25, 1988 is a span of 15 
 
            weeks, 5 days.  That is a reasonable amount of time to allow 
 
            healing of a fractured ankle and fractured vertebrae.
 
            
 
                 It is found that all of the charges from Sioux City 
 
            Radiological Group, P.C., as shown in exhibit 1, are related 
 
            to the fall injury.  The evidence shows that claimant fell 
 
            on his head.  Studies for head injury are therefore 
 
            certainly appropriate.
 
            
 
                                conclusions of law
 
            
 
                 There is no dispute in this case with regard to the 
 
            fact that Jetter fell from the roof or that his medical 
 
            expenses were incurred in treating the injuries sustained in 
 
            that fall or of the reasonableness of the amount of those 
 
            charges.  The fighting issue is the employment status.
 
            
 
                 In this case, it is clear that Steven Jetter was not in 
 
            the business of working as a self-employed roofing 
 
            contractor.  He did not even own roofing tools.  Jetter was 
 
            relatively inexperienced and had to be shown how to perform 
 
            the roofing by Barker.  There is nothing in the evidence to 
 
            indicate that Steven Jetter ever operated as a self-employed 
 
            roofer.  In this case, he worked when, where and in the 
 
            manner specified by Barker.  He was paid according to the 
 
            output, namely the number of squares of roofing which were 
 
            completed.  Jetter has certainly made a prima facie showing 
 
            that he is an employee.  Nelson v. Cities Serv. Oil Co., 259 
 
            Iowa 1209, 146 N.W.2d 261 (1966); Henderson v. Jennie 
 
            Edmundson Hosp., 178 N.W.2d 429 (Iowa 1970).
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Barker contends that Jetter was either self-employed or an 
 
            independent contractor.  He contends that it was their 
 
            agreement that Jetter was responsible for himself and would 
 
            not be considered an employee.  While considerable weight is 
 
            to be given to the contractual arrangement of the parties, 
 
            the law clearly states that one who is in fact an employee 
 
            cannot by contract or otherwise waive his right to workers' 
 
            compensation benefits.  Iowa Code sections 85.3 and 85.18.  
 
            Any agreement in which Jetter waived his rights as an 
 
            employee would be void as in violation of public policy.  
 
            Barker has the burden of proving that Jetter was an 
 
            independent contractor.  Swain v. Monona County, 163 N.W.2d 
 
            918 (Iowa 1969); Mallinger v. Webster City Oil Co., 211 Iowa 
 
            847, 234 N.W. 254 (1929).
 
            
 
                 The evidence in this case simply does not support 
 
            Barker's contention.  Barker was responsible to LeRoy Kent 
 
            for the roofing jobs.  Jetter had no direct contact with 
 
            Kent.  The evidence in this case is overwhelmingly clear 
 
            that Steven Jetter was an employee of Claude Barker, despite 
 
            Barker's attempts to avoid the legal responsibilities for 
 
            withholding, taxes, insurance and other obligations which 
 
            arise as a matter of law when an employer-employee 
 
            relationship is created and work is performed in that 
 
            relationship for which wages or other compensation is paid 
 
            or payable.  It is therefore concluded that Steven M. Jetter 
 
            was neither self-employed nor an independent contractor.  
 
            Claude Barker is therefore responsible to pay temporary 
 
            total disability and medical expenses under the provisions 
 
            of chapter 85 of The Code of Iowa.
 
            
 
                 Normally when a person afflicted with epilepsy falls 
 
            and sustains injury in that fall, those injuries are held 
 
            not to arise out of the employment.  An exception exists, 
 
            however, when the employment places the employee in a 
 
            position of increased risk.  A classic example of the 
 
            increased risk exception is where the employee works at 
 
            heights, as in this case.  It is therefore concluded that 
 
            the injuries Jetter sustained in his fall arose out of and 
 
            in the course of his employment with Claude Barker.  1 
 
            Larson Workmen's Compensation Law, section 12.00.
 
            
 
                 It has previously been found that claimant's period of 
 
            recovery ended October 25, 1988.  This entitles him to 
 
            recover 15 weeks, 5 days of temporary total disability 
 
            compensation payable commencing July 8, 1988.
 
            
 
                 It was stipulated that Jetter was single and had one 
 
            exemption.  It has been previously found that Jetter's 
 
            average earnings while employed by Barker were $125 per 
 
            week.  This converts to a weekly rate of compensation of 
 
            $82.66.
 
            
 
                 An attachment to the prehearing report showed the 
 
            claimant's medical expenses to be as follows:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Sioux City Radiological Group, P.C.        $  635.00
 
                 Siouxland Health Services, Inc.               252.00
 
                 Daniel M. Youngblade, M.D.                    601.00
 
                 St. Luke's Medical Center                   3,070.86
 
                 VHA of the Midlands Home Medical Supply        41.95
 
                 Total                                      $4,600.81
 
            
 
                 The only issue in that regard which was identified was 
 
            the issue of liability.  Barker, having been found to be 
 
            claimant's employer, is therefore responsible for payment of 
 
            those expenses.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that Claude Barker pay Steven 
 
            M. Jetter fifteen and five-sevenths (15 5/7) weeks of 
 
            compensation for temporary total disability at the rate of 
 
            eighty-two and 66/100 dollars ($82.66) per week payable 
 
            commencing July 8, 1988.
 
            
 
                 IT IS FURTHER ORDERED that the entire amount thereof is 
 
            past due and shall be paid to Jetter in a lump sum together 
 
            with interest computed pursuant to section 85.30 of The Code 
 
            from the date each payment came due until the date of actual 
 
            payment.
 
            
 
                 IT IS FURTHER ORDERED that Claude Barker pay the 
 
            medical expenses incurred by Steven M. Jetter as follows:
 
            
 
                 Sioux City Radiological Group, P.C.        $  635.00
 
                 Siouxland Health Services, Inc.               252.00
 
                 Daniel M. Youngblade, M.D.                    601.00
 
                 St. Luke's Medical Center                   3,070.86
 
                 VHA of the Midlands Home Medical Supply        41.95
 
                 Total                                      $4,600.81
 
            
 
                 IT IS FURTHER ORDERED that the costs of this proceeding 
 
            are assessed against Claude Barker pursuant to rule 343 IAC 
 
            4.33.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            IT IS FURTHER ORDERED that Claude Barker file claim activity 
 
            reports as requested by this agency pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Daniel C. Galvin
 
            Attorney at Law
 
            922 Douglas Street
 
            P.O. Box 3223
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Glenn A. Metcalf
 
            Attorney at Law
 
            P.O. Box 442
 
            Moville, Iowa  51039
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.10; 1402.30; 1504
 
                           1801; 2001; 2002; 3001
 
                           Filed July 31, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            STEVEN M. JETTER,   :
 
                      :
 
                 Claimant, :         File No. 943950
 
                      :
 
            vs.       :      A R B I T R A T I O N
 
                      :
 
            CLAUDE BARKER, :         D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
            ____________________________________________________________
 
            
 
            1402.10; 1504; 2001; 2002
 
            Claimant, an epileptic, fell from a roof while performing 
 
            roofing work for the alleged employer.  The alleged employer 
 
            contended that the claimant was self-employed or an 
 
            independent contractor.  The evidence overwhelmingly showed 
 
            the claimant to be an employee.  He did not even own his own 
 
            roofing tools.  He was paid by the alleged employer and had 
 
            no contact with the general contractor at the project.  The 
 
            alleged employer set the days and hours of work.  The 
 
            alleged employer's testimony, even if true, that the 
 
            claimant agreed he would be responsible for himself, was 
 
            held to be void as in contravention of Code sections 85.3 
 
            and 85.18.
 
            
 
            1402.30
 
            Even though claimant fell as a result of an epileptic 
 
            seizure, the fact that he was working at heights made the 
 
            injuries arise out of the employment.
 
            
 
            3001
 
            Where the evidence was extremely vague and conflicting, it 
 
            was found that the average weekly earnings of the claimant 
 
            were $125 per week.  Neither party had any written record of 
 
            claimant's actual earnings.
 
            
 
            1801
 
            Where there was no medical evidence in the record to mark 
 
            the end of the healing period, the claimant's testimony of 
 
            the date he was released by his physician seemed reasonable 
 
            and was relied upon.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE M. KNEPPER,           :
 
                                          :        File No. 943954
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Suzanne 
 
            M. Knepper, claimant, against John Deere Dubuque Works of 
 
            Deere & Company, employer (hereinafter referred to as 
 
            Deere), a self-insured defendant, for workers' compensation 
 
            benefits as a result of an alleged injury on July 12, 1988.  
 
            On August 14, 1991, a hearing was held on claimant's peti
 
            tion and the matter was considered fully submitted at the 
 
            close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On July 12, 1988, claimant received an injury which 
 
            arose out of and in the course of his employment with Deere.
 
            
 
                 2.  Claimant is not seeking temporary total disability 
 
            or healing period benefits in this proceeding.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 
            shall begin as of July 13, 1988.
 
            
 
                 5.  Claimant's gross weekly rate of compensation is 
 
            $653.31 and she is entitled to marital status and four 
 
            exemptions.  The stipulated rate contained in the prehearing 
 
            report was not honored because it was not consistent with 
 
            the commissioner's published rate booklet for an injury 
 
            occurring in July of 1988.  The proper rate according to 
 
            this booklet is $402.51.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendant.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Deere since November 1969 and 
 
            continues to do so at the present time.  She has been 
 
            employed at Deere as a keypunch operator, lead keypunch 
 
            operator, and a computer programmer.  Since 1979, she has 
 
            been performing the job called a control terminal operator.  
 
            This job consists of several duties which rotate on a regu
 
            lar basis but one of these duties is to process phone com
 
            plaints from fellow Deere employees in an effort to solve 
 
            computer operation problems.  Claimant takes corrective 
 
            action by referring to her various reference manuals at her 
 
            work station and making corrective entries into the computer 
 
            using her keyboard.  This job is rotated between claimant 
 
            and another person.  Usually the job involves spending 30 to 
 
            40 percent of the day on the phone.  In this job claimant is 
 
            also assigned to other tasks in the computer room which 
 
            require moderate to repetitive lifting, stooping, bending 
 
            and twisting.  A task involving delivery of mail in this job 
 
            has been discontinued since the injury.  Claimant's supervi
 
            sors consider claimant as an excellent employee and rate her 
 
            performance as exceeding their expectations.
 
            
 
                 On or about September 14, 1988, claimant injured her 
 
            hips, low back, upper back and neck and shoulders while per
 
            forming her work at Deere.  A mail truck she was driving was 
 
            struck broadside by a forklift tow truck driven by another 
 
            employee.  Claimant received almost immediate treatment from 
 
            the Deere plant physician, Hugh McClenahan, M.D., for 
 
            bruises, stiffness and pain in the injured areas of her 
 
            body.  However, despite this treatment, claimant continued 
 
            to experienced persistent low back, upper back and neck pain 
 
            over the next three years.  During this time she was treated 
 
            in addition to Dr. McClenahan by a specialist of physical 
 
            medicine, Paulette Lynn, M.D.  Claimant was also evaluated 
 
            for possible disc injury by a neurosurgeon P. R. Sterrett, 
 
            M.D.  The consensus diagnosis of the specialists was that 
 
            claimant was suffering from chronic myofascitis or soft tis
 
            sue injury.  They rejected any disc or other structural 
 
            injury which could be repaired by surgery.  As claimant did 
 
            not respond well to treatment, she has been evaluated by 
 
            physicians at the Sister Kenny Institute in Minneapolis, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Minnesota for admission to their pain clinic.  Upon a diag
 
            nosis of chronic pain syndrome along with myofascitis, the 
 
            Sister Kenny physicians opined that claimant would benefit 
 
            from their pain program which is designed to elevate chronic 
 
            pain syndrome.
 
            
 
                 It is found that claimant's chronic pain syndrome, as 
 
            well as the chronic myofascitis, are causally connected to 
 
            the injury of September 14, 1988.  This finding is based 
 
            primarily upon the views of Dr. Lynn and the physicians of 
 
            the Sister Kenny institute due to their greater expertise in 
 
            claimant's type of problems.  Dr. Lynn, in her reports, 
 
            explains that claimant is suffering from "trigger points" 
 
            caused by the work injury.  These trigger points are an area 
 
            of muscles that cannot relax.  This condition results in 
 
            pain not only in the areas of the trigger points but in 
 
            referred pain to other areas of the body.  These trigger 
 
            points have not responded to therapy according to Dr. Lynn 
 
            due to perpetuating or aggravating factors such as repeti
 
            tive strains at work and a mental element of job stress.  
 
            Dr. Lynn encourages claimant to attend the pain clinic to 
 
            treat these perpetuating factors.  The Sister Kenny Insti
 
            tute explains that although claimant has an organic cause of 
 
            pain from myofascitis, this pain has resulted in a body or 
 
            brain reaction that is causing further or more aggravation 
 
            pain.  They recommended intensive inpatient program at their 
 
            pain clinic to break this cycle with coping strategies and 
 
            physical reactivation.  The Deere company physician also 
 
            recommends the pain center and claimant is scheduled to 
 
            attend this clinic in the near future.  As the chronic pain 
 
            syndrome is causally connected to the work injury, likewise 
 
            it is found that any treatment or disability caused by this 
 
            syndrome is likewise work related.  Although it is not the 
 
            only factor, the work injury of September 14, 1988, remains 
 
            a substantial causative factor of claimant's chronic 
 
            myofascitis of her neck and back and her chronic pain syn
 
            drome.
 
            
 
                 As a result of the work injury of September 14, 1988, 
 
            claimant has suffered only mild or five percent loss of 
 
            earning capacity.  Claimant does suffer from a significant 
 
            permanent loss of use of her body.  The actual percentage of 
 
            physical impairment is unimportant to this decision as this 
 
            is an industrial disability case.  The finding of impairment 
 
            is made despite the expressed views of her treating physi
 
            cian that she does not suffer from permanent impairment.  
 
            These physicians believe that she will improve with further 
 
            treatment especially at the pain center.  Such views are not 
 
            convincing.  These physicians have treated claimant unsuc
 
            cessfully for over three years.  During almost all of this 
 
            time she has been working under physician imposed restric
 
            tions on her work activity.  At the present time, she is 
 
            prohibited by Dr. McClenahan from lifting, pushing or 
 
            pulling over 15 pounds and from repetitive bending or 
 
            stretching of her neck.  Dr. McClenahan testified that 
 
            despite his labeling of these restrictions as permanent, 
 
            they are actually not permanent.  This testimony is cer
 
            tainly not convincing.  It is clear that today claimant's 
 
            work activity is significantly limited due to her chronic 
 
            pain.  What will happen in the future is speculative.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant stated that she would like to work outside of Deere 
 
            and various other part-time work after hours but is unable 
 
            to do so.  Her ability to work after hours in her current 
 
            job is also limited.
 
            
 
                 On the other hand, her disability is very mild.  
 
            Claimant, age 40, is a high school graduate.  She is contin
 
            uing to perform essentially the same job she had at the time 
 
            of her injury.  She has neither received any loss of income 
 
            or income potential nor has she lost any promotional oppor
 
            tunity.  She performs mostly sedentary work and her employer 
 
            has greatly accommodated for her disability by allowing fel
 
            low employees to assist her in lifting duties.  They have 
 
            further accommodated for her disability by securing phone 
 
            headsets that are suitable to her neck problems and have 
 
            made other economic changes in the work area.  Although 
 
            claimant has had some fear of the loss of her job and this 
 
            fear has been expressed to her physicians, the evidence in 
 
            the record indicates that at the present time claimant's 
 
            employment is suitable and stable.  Given her past work his
 
            tory, claimant is able to perform almost all of the work for 
 
            which she is best suited.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a preponder
 
            ance of the evidence that the work injury is a cause of the 
 
            claimed disability.  A disability may be either temporary or 
 
            permanent.  In the case of a claim for temporary disability, 
 
            the claimant must establish that the work injury was a cause 
 
            of absence from work and lost earnings during a period of 
 
            recovery from the injury.  Generally, a claim of permanent 
 
            disability invokes an initial determination of whether the 
 
            work injury was a cause of permanent physical impairment or 
 
            permanent limitation in work activity.  However, in some 
 
            instances, such as a job transfer caused by a work injury, 
 
            permanent disability benefits can be awarded without a show
 
            ing of a causal connection to a physical change of condi
 
            tion.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
            (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 
            to which claimant is entitled.  As the claimant has shown 
 
            that the work injury was a cause of a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  The extent to which a work injury and 
 
            a resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several fac
 
            tors.  These factors include the employee's medical condi
 
            tion prior to the injury, immediately after the injury and 
 
            presently; the situs of the injury, its severity and the 
 
            length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  
 
            Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a five percent loss of her earning capacity as a 
 
            result of the work injury.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 25 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is five percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            section.
 
            
 
                                      order
 
            
 
                 l.  Defendant shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of four hundred two and 51/l00 dollars ($402.51) per week 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            from July 13, 1988.
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Stephen W. Scott
 
            Attorney at Law
 
            100 W 12th St
 
            P O Box 703
 
            Dubuque  IA  5200l
 
            
 
            Mr. Leo A. McCarthy
 
            Attorney at Law
 
            222 Fischer Bldg
 
            P O Box 239
 
            Dubuque  IA  52004
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed August 30, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SUZANNE M. KNEPPER,           :
 
                                          :        File No. 943954
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            JOHN DEERE DUBUQUE WORKS OF   :
 
            DEERE & COMPANY,              :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Extent of permanent disability benefits.