BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RALPH SNYDER,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                   File No. 944044
 
         MERCURY TOOL & ENGINEERING,     
 
                                                    A P P E A L
 
              Employer,   
 
                                                   D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL COMPANIES,     
 
                     
 
              Insurance Carrier,    
 
                     
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         November 15, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Second Injury Fund shall pay the costs of the appeal, including 
 
         the preparation of the hearing transcript.
 
         Signed and filed this ____ day of March, 1994.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tom L. Drew
 
         Attorney at Law
 
         P.O. Box 8476
 
         3209 Ingersoll Ave., Ste. 105
 
         Des Moines, Iowa 50312
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. Cecil L. Goettsch
 
         Mr. D. Brian Scieszinski
 
         Attorneys at Law
 
         801 Grand Ave., Ste 3700
 
         Des Moines, Iowa 50309-2727
 
         
 
         Mr. James F. Christenson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                                        5-1108, 5-1401, 5-1402.20, 
 
                                        5-1402.30, 5-1402.40, 5-3202,
 
                                        5-3203
 
                                        Filed March 9, 1994
 
                                        Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RALPH SNYDER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 944044
 
            MERCURY TOOL & ENGINEERING,     
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1108, 511401, 5-1402.20, 5-1402.30, 5-1402.40, 5-3202, 
 
            5-3202
 
            
 
                 Claimant was awarded 143.4 weeks of benefits from the 
 
            Second Injury Fund of Iowa.
 
            
 
                 The first injury to the left knee caused a three 
 
            percent permanent impairment and had a scheduled value of 
 
            6.6 weeks.  The second injury to the arm caused a ten 
 
            percent permanent impairment and had a scheduled value of 25 
 
            weeks.  Claimant was determined to have a 35 percent 
 
            industrial disability with a value of 175 weeks.  The net 
 
            amount owed by the Second Injury Fund was 143.4 weeks (175 
 
            weeks minus 6.6 weeks and 25 weeks equals 143.4 weeks).  
 
            
 
                 Discrepancies of (1) whether the injury date was March 
 
            20, 1990 or March 12, 1990, (2) why the VA records did not 
 
            record a work injury, (3) whether claimant did or did not 
 
            have an arthroscopic examination for the knee at the time of 
 
            the first injury and (4) whether claimant began full-time 
 
            employment again in July 1992 or July 1993, were outweighed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            by (1) the fact that claimant reported an injury to employer 
 
            when it occurred, (2) employer completed a first report of 
 
            injury, (2) employer and insurance carrier determined that 
 
            claimant was credible enough to justify making full payment 
 
            on this injury claim, (3) four doctors, Dr. Smith, Dr. 
 
            Wirtz, Dr. Kirkland and Dr. Rosenfeld determined that 
 
            claimant was credible and treated him based on the same 
 
            history of this injury that claimant supplied to them and 
 
            (4) that the deputy found that claimant was credible and 
 
            truthful even though he may have been a poor historian.  
 
            Likewise, claimant had a number of health and family 
 
            problems that may have affected his recollection over the 
 
            three and one-half years after the time of the injury and 
 
            before this hearing.
 
            
 
                 The chief elements in determining industrial disability 
 
            were (1) claimant's age, 45 at the time of injury, (2) 10th 
 
            grade education with a GED from Iowa Vocational 
 
            Rehabilitation, (3) foreclosed from very heavy, heavy and 
 
            medium work for 20 years from the time of the injury at age 
 
            45 until what is frequently considered as normal retirement 
 
            age of 65 which restricts his employability and 
 
            concomitantly his earnings capacity, (4) a second injury 
 
            that was a traumatic injury which required three surgeries, 
 
            (5) a permanent restriction of not to lift more than 15 
 
            pounds for the rest of his working life, (6) inability to 
 
            find work with his restriction, (7) motivation to find 
 
            employment by pursuing Iowa vocational rehabilitation for 
 
            approximately one year, (8) a 20 percent actual loss of 
 
            earnings at the time of hearing, preceded by a lengthy 
 
            period of unemployment and part-time employment, (9) a three 
 
            percent permanent impairment to his left knee and (10) a 10 
 
            percent permanent impairment to his right arm.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RALPH SNYDER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 944044
 
            MERCURY TOOL & ENGINEERING,   
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA    
 
                 Defendants.    
 
            ___________________________________________________________
 
                                INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Ralph 
 
            Snyder, claimant, against Mercury Tool & Engineering, 
 
            employer, and Employers Mutual Companies, insurance carrier, 
 
            and the Second Injury Fund of Iowa, defendants, for benefits 
 
            as the result of an alleged injury which occurred on March 
 
            20, 1990.  A hearing was held in Des Moines, Iowa, on 
 
            October 25, 1993, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Tom L. 
 
            Drew.  Defendant-employer and insurance carrier were 
 
            represented by Cecil L. Goettsch.  Defendant Second Injury 
 
            Fund of Iowa was represented by James F. Christenson.  The 
 
            record consists of the testimony of Ralph Snyder, claimant, 
 
            claimant's exhibit 1, pages 1 through 19, defendant-employer 
 
            and insurance carrier's exhibit A, pages 1, 2 and 3, and 
 
            defendant Second Injury Fund of Iowa's exhibits AA, pages 1, 
 
            2, and 3, BB, pages 1 through 17 (minus pages 10 & 11) and 
 
            CC, pages 3 through 8.  The Second Injury Fund of Iowa 
 
            submitted a statement of disputed issues which was labeled 
 
            Contentions of the Second Injury Fund at the time of the 
 
            hearing.  The deputy ordered a transcript of the hearing.
 
            
 
                                   STIPULATIONS
 
            
 
                 Claimant and defendant-employer and insurance carrier 
 
            stipulated:
 
            
 
                 (1)  That claimant sustained and injury on March 20, 
 
            1990, to his right arm which arose out of and in the course 
 
            of his employment with employer;
 
            
 
                 (2)  That the injury was the cause of temporary 
 

 
            
 
            Page   2
 
            
 
            
 
            disability;
 
            
 
                 (3)  That claimant was paid 41.186 weeks of healing 
 
            period benefits at the rate of $224.97 per week for the 
 
            period from July 28, 1990 through May 12, 1991;
 
            
 
                 (4)  That the injury was the cause of permanent 
 
            disability;
 
            
 
                 (5)  That claimant was paid 25 weeks of permanent 
 
            partial disability benefits at the rate of $224.97 per week 
 
            based upon a 10 percent permanent impairment of the right 
 
            arm;
 
            
 
                 (6)  That the proper rate of compensation was $224.97 
 
            per week; and
 
            
 
                 (7)  That the medical benefits were no longer in 
 
            dispute.
 
            
 
                 The Second Injury Fund of Iowa stipulated that the 
 
            proper rate of compensation is $224.97 per week.
 
            
 
                 All of the parties agreed that the purpose of the 
 
            hearing was to determine whether there was any liability on 
 
            the part of the Second Injury of Iowa.
 
            
 
                                      ISSUES
 
            
 
                 Claimant and the Second Injury Fund of Iowa submitted 
 
            the following issues for determination:
 
            
 
                 Whether claimant sustained an injury on March 20, 1990, 
 
            which arose out of and in the course of employment with 
 
            employer;
 
            
 
                 Whether there is any liability on the part of the 
 
            Second Injury Fund of Iowa pursuant to Iowa Code section 
 
            85.64 and if so the extent of benefits for which the Second 
 
            Injury Fund is liable;
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                      INJURY
 
            
 
                 It is determined that claimant did, in fact, sustain an 
 
            injury on March 20, 1990, which arose out of and in the 
 
            course of his employment with employer.
 
            
 
                 The primary evidence that would indicate that claimant 
 
            might not have sustained an injury which arose out of and in 
 
            the course of his employment on March 20, 1990, are two 
 
            medical notes from the Veterans Administration Hospital 
 
            where claimant sought treatment shortly after this injury.  
 
            Both notes are dated March 22, 1990.  
 
            
 
                 On the first note the nurse recorded that claimant 
 
            complained of sharp pains in his right thumb and wrist for 
 
            several weeks and had noted decreased strength in his right 
 
            hand and increased pain when lifting.  The nurse made no 
 

 
            
 
            Page   3
 
            
 
            
 
            mention of a work-connected injury.  On the same entry the 
 
            examining physician recorded "No specific injury."  The 
 
            physician diagnosed tenosynovitis right forearm.  The 
 
            physician did not mention a work-connected incident.  
 
            
 
                 The second entry at the VA hospital, also dated March 
 
            22, 1990, by a licensed physical therapist stated that 
 
            claimant said that he has had minor pain in this area for 
 
            several months but that the pain had increased markedly in 
 
            the past two weeks.  The physical therapist did not mention 
 
            a work-connected injury.  
 
            
 
                 Normally, this would be evidence that claimant did not 
 
            sustain an injury which arose out of and in the course of 
 
            his employment on March 20, 1990 to his right arm 
 
            (Claimant's Exhibit 1, pages 13 & 14).  However, this 
 
            evidence is outweighed by the fact that employer filed a 
 
            first report of injury on March 23, 1990, in which employer 
 
            states that claimant did sustain an injury on March 20, 1990 
 
            and that they first learned of the injury on March 21, 1990.  
 
            The first report of injury describes that claimant was 
 
            loading a 50-pound bag of material into a mixer when the top 
 
            of the bag tore off and put the weight of the bag on 
 
            claimant's right thumb bending it back.  The first report of 
 
            injury corroborates claimant's testimony.  This information 
 
            was all made a matter of record prior to claimant's visit to 
 
            the Veterans Administration Hospital. 
 
            
 
                 With respect to the Veterans Administration records, 
 
            claimant testified, "I have no idea where they get these 
 
            statements because I never said anything like that to 
 
            anyone." (Tran. p. 36, 57, 70 & 76).  He further denied that 
 
            he had had previous problems with his hand (Tran. p. 57).
 
            
 
                 Claimant testified that the pain became increasingly 
 
            worse and extended up his entire right arm causing him to 
 
            seek treatment from Kevin Smith, M.D., Peter D. Writz, M.D., 
 
            Mark B. Kirkland, D.O. and Martin S. Rosenfeld, D.O..  All 
 
            of these physicians proceeded on a history of the injury to 
 
            the right thumb, wrist and arm that claimant described at 
 
            the hearing and that is reported on the first report of 
 
            injury (Tran. p. 37).  
 
            
 
                 It might be noted, for what it is worth, that employer 
 
            and insurance carrier also determined that claimant 
 
            sustained an injury to the right arm on March 20, 1990, 
 
            which arose out of and in the course of employment with 
 
            employer and paid claimant $9,288.11 in healing period 
 
            benefits and $5,624.25 in permanent partial disability 
 
            benefits.  The four doctors named above accepted the history 
 
            of injury given by claimant without any dispute or 
 
            suspicion.  In addition it is determined by this deputy that 
 
            claimant's testimony is credible and reliable as did the 
 
            employer, the insurance carrier and all four of his doctors.  
 
            
 
                 Wherefore, it is determined that claimant sustained an 
 
            injury on March 20, 1990 to this right thumb, wrist and arm 
 
            which arose out of and in the course of his employment with 
 
            employer. 
 
            
 

 
            
 
            Page   4
 
            
 
            
 
                 Claimant was credible.  Catalfo v. Firestone Tire & 
 
            Rubber Co., 213 N.W.2d 506, 509 (Iowa 1973); Erb v. Iowa 
 
            State Board of Public Instruction, 216 N.W.2d 339, 342 (Iowa 
 
            1974).
 
                   LIABILITY OF THE SECOND INJURY FUND OF IOWA
 
                 
 
                 It is determined that claimant sustained a scheduled 
 
            member injury to his left leg on July 13, 1985, which caused 
 
            a 3 percent permanent impairment to the left leg.
 
            
 
                 It is further determined that claimant sustained an 
 
            injury to the right arm on March 20, 1990, which caused a 10 
 
            percent permanent impairment of the right arm.
 
            
 
                 It is further determined that claimant has sustained a 
 
            35 percent industrial disability to the body as a whole.  A 
 
            35 percent industrial disability results in an entitlement 
 
            to 175 weeks of workers' compensation benefits.  However, 
 
            the liability of the Second Injury Fund is reduced by 6.6 
 
            weeks for the injury to the left leg because claimant 
 
            sustained a 3 percent loss of the left leg due to the injury 
 
            of July 15, 1985 (.03 x 220 = 6.6).  The liability of the 
 
            Second Injury Fund is further reduced by the liability of 
 
            this employer in the amount of 25 weeks based upon a 10 
 
            percent permanent impairment of the right upper extremity 
 
            which occurred on March 20, 1990, for which employer is 
 
            liable (.10 x 250 = 25).  Thus, claimant's 175 weekly 
 
            entitlement is reduced by 31.6 weeks (6.6 plus 25) and the 
 
            Second Injury Fund is liable for 143.4 week of permanent 
 
            partial disability benefits.
 
            
 
                 Iowa Code section 85.64 provides in part as follows:
 
            
 
                    If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there has been no pre-existing 
 
                 disability.  In addition to such compensation, and 
 
                 after the expiration of the full period provided 
 
                 by law for the payments thereof by the employer, 
 
                 the employee shall be paid out of the "Second 
 
                 Injury Fund" created by this division the 
 
                 remainder of such compensation as would be payable 
 
                 for the degree of permanent disability involved 
 
                 after first deducting from such remainder the 
 
                 compensable value of the previously lost member or 
 
                 organ.
 
            
 
                 Lawyer and Higgs, Iowa Workers' Compensation--Law and 
 
            Practice, (2nd ed.) section 17-5, page 171, provides, "There 
 
            must be permanent disability resulting both from the initial 
 
            loss, or loss of use, and from the loss of another such 
 
            member or organ."
 
            
 
                 There is no requirement that the initial loss or loss 
 

 
            
 
            Page   5
 
            
 
            
 
            of use to a hand, arm, foot, leg, or eye be compensable, but 
 
            the second must be.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (2d ed.) section 17-4, page 
 
            171.  
 
            
 
                 The Second Injury Fund Act anticipates some degree of 
 
            permanent disability sustained as a result of the previous 
 
            injury.  Keener v. Den Tal Ez Mfg., III Iowa Industrial 
 
            Commissioner Report, 152 (1983); Eurom v. Mortenson Co., and 
 
            Second Injury Fund of Iowa, file number 935223 (Appeal Decn. 
 
            Oct. 28, 1992, affirmed by the district court Oct. 6, 1993).
 
            
 
                 Claimant has introduced facts which prove that he is 
 
            entitled to Second Injury Fund benefits pursuant to the 
 
            preceding legal authorities.
 
            
 
                 Claimant, born April 17, 1944, was 45 years old at the 
 
            time of this injury and 49 years old at the time of the 
 
            hearing (Tran. pp. 19 & 20).  Claimant completed the tenth 
 
            grade in high school and obtained a GED through the Iowa 
 
            Rehabilitation Services in 1992 (Tran. p. 21).  Claimant 
 
            completed a certificate course in hydraulics in 1982 or 
 
            1983.  He testified that he has been able to use this 
 
            knowledge in most of his jobs (Tran. p. 21).  Claimant 
 
            testified that he served in the Navy from January 1960 until 
 
            1962 when he received a medical discharge.  He contended 
 
            that he did not learn any transferable skills in the Navy 
 
            (Tran. p.2).  Claimant testified that practically all of his 
 
            past employments have been primarily in the plastic 
 
            manufacturing industry (Tran. pp. 23 & 24). 
 
            
 
                 Claimant testified that he started to work for employer 
 
            in March of 1989.  He said that it was his responsibility to 
 
            keep the machines running.  He also stated that this was 
 
            physical work and he was required to lift 50-pound bags of 
 
            plastic pellets overhead in order to put them in a machine.  
 
            Claimant agreed that the job required him to be in good 
 
            health in order to perform it.  Claimant added that he 
 
            enjoyed the work and that he wished that he were still doing 
 
            it (Tran. p. 26-28).
 
            
 
                 The original notice and petition alleges that claimant 
 
            injured his left knee on July 13, 1985.  Claimant related 
 
            that he was on a ladder when his left foot slipped on some 
 
            grease, his leg went sideways, his left knee popped and he 
 
            immediately felt pain in the left knee.  He said his knee 
 
            went to the side of his leg.  Claimant said that he was sent 
 
            to the hospital and that he was treated by Philip G. George, 
 
            M.D., an orthopedic surgeon (Tran. pp. 29, 30 & 62).  
 
            
 
                 Dr. George stated on July 18, 1985, that claimant 
 
            suffered valgus stress to his left knee which caused him to 
 
            feel pain in the medial aspect of the knee.  Emergency room 
 
            x-rays disclose no fractures.  The emergency room fitted 
 
            claimant with a knee immobilizer and crutches.  Dr. George 
 
            diagnosed "Sprain (partial tear) medial collateral ligament, 
 
            left knee." (Ex. CC, p. 7).
 
            
 
                 Dr. George added, "This man has a soft tissue injury of 
 
            the knee which will do well on conservative treatment." (Ex. 
 

 
            
 
            Page   6
 
            
 
            
 
            CC, p. 7).  Dr. George stated that claimant remained 
 
            disabled for work (Ex. CC, p. 8).  He released claimant to 
 
            return to work as of September 16, 1985 (Ex. CC, p. 5). 
 
            
 
                 On October 16, 1985, Dr. George stated that claimant 
 
            appeared "... almost fully recovered from his ligamentous 
 
            injury." (Ex. CC, p. 4).  Yet on January 16, 1986, 
 
            approximately six months after the injury occurred on July 
 
            13, 1985, claimant still had occasional aching and localized 
 
            swelling at the medial aspect of his left knee.  His 
 
            physical examination on that date was generally normal but 
 
            claimant was advised to persist in his exercises and to 
 
            return for a rating in three months (Ex. CC, p. 3).  Thus, 
 
            in spite of generally favorable findings, nevertheless, it 
 
            would appear that Dr. George anticipated some permanent 
 
            impairment if he intended to make a rating in three months.
 
            
 
                 On April 17, 1986, Dr. George performed a thorough 
 
            physical examination and diagnosed "Healed sprain medial 
 
            collateral ligament, left knee." (Ex. 1, p. 2).  Claimant 
 
            was released from the care of Dr. George without 
 
            restrictions or medications.  No significant future problems 
 
            were anticipated (Ex. 1, pp. 2 & 3).  Nevertheless, Dr. 
 
            George assessed a 3 percent permanent impairment of the left 
 
            leg in a supplemental statement also dated April 17, 1986.  
 
            Dr. George stated on that date, "Based on the physical and 
 
            x-ray examinations of the above-captioned patient conducted 
 
            in my office it is my opinion that the patient has 3% 
 
            permanent partial physical disability of the left leg at the 
 
            level of the knee as a result of his industrial trauma of 
 
            July 1985." (Ex. 1, p. 1).
 
            
 
                 Thus, claimant has established that he did sustain a 
 
            permanent impairment and a permanent disability to his left 
 
            leg which was caused by the injury of July 13, 1985.  The 
 
            contention of the Second Injury Fund that claimant did not 
 
            sustain an injury because he only suffered a sprain which 
 
            required no surgery, no further medications and no permanent 
 
            restrictions is without merit.  Even though in his report of 
 
            April 17, 1986, Dr. George dictated a favorable report of 
 
            findings on (1) his own treatment and care and (2) 
 
            claimant's recovery, he nevertheless, made it clear by a 
 
            supplemental statement on the same date that the patient had 
 
            sustained a 3 percent permanent partial physical disability 
 
            of the left leg at the level of the knee because of this 
 
            injury.
 
            
 
                 This finding of Dr. George is corroborated by 
 
            claimant's testimony in which he related that his left knee 
 
            gets stiff, tired and weak, that he has to shift weight 
 
            bearing to his right knee, and that he was unable to cross 
 
            his legs by putting his left foot on his right knee.  He 
 
            still feels grinding in his left knee (Tran. pp. 32, 33 & 
 
            77).
 
            
 
                 Claimant contended that his left knee will not bend.  
 
            If he crosses his left knee over his right knee it causes 
 
            pain.  If he stands a long time his left knee becomes tired.  
 
            Sometimes the left knee will give away.  Claimant said that 
 
            his left knee is not as strong as his right knee.  In order 
 

 
            
 
            Page   7
 
            
 
            
 
            to compensate for the weakness of his left knee he sometimes 
 
            shifts his weight to his right knee.  Claimant said there is 
 
            grinding in the joint of the left knee (Tran. 32, 33 & 77).
 
            
 
                 The testimony of Dr. George and claimant was not 
 
            controverted, contradicted, rebutted or refuted by any 
 
            evidence produced by defendant Second Injury Fund nor by any 
 
            other evidence in the record.  Simply because claimant could 
 
            perform his work for employer does not negate the fact that 
 
            claimant sustained a permanent impairment and permanent 
 
            disability of 3 percent.
 
            
 
                 Wherefore, it is determined as a matter of fact that 
 
            claimant sustained an injury to his left leg on July 13, 
 
            1985, which produced permanent disability.  Iowa Code 
 
            section 85.64. 
 
            
 
                 Claimant contended that Dr. George performed an 
 
            arthroscopic examination on his left knee.  However, a close 
 
            examination of Dr. George's medical records do not disclose 
 
            that he did in fact record an arthroscopic examination or 
 
            surgery (Ex. CC, pp. 3-8; Ex. 1, pp. 1 & 2).  The Second 
 
            Injury Fund asserts that this discrepancy discredits 
 
            claimant's credibility.  It is the finding of this deputy 
 
            that claimant's credibility is not affected by this 
 
            discrepancy.  Discrepancies of this nature are not uncommon 
 
            in workers' compensation hearings.  Although, normally 
 
            physicians would record an arthroscopic examination, 
 
            physicians have been known to forget to record material 
 
            facts.  The doctor's office note could have been lost.  
 
            Claimant could be mistaken, however, he describes the 
 
            temporary scar he had for a while.  It is also possible that 
 
            the examination was carried out at a hospital or clinic 
 
            rather than Dr. George's office and that this arthroscopic 
 
            examination would be recorded on their records rather than 
 
            in his own office notes.  In any event, whether Dr. George 
 
            did or did not perform an arthroscopic examination on 
 
            claimant's left knee, the fact remains that Dr. George did 
 
            determine that claimant had sustained a 3 percent permanent 
 
            partial disability to his left leg, irrespective of whether 
 
            an arthroscopic examination was performed or not.  
 
            Arthroscopic examination or surgery is not a sine qua non to 
 
            a determination that claimant sustained an injury on July 
 
            13, 1985, which resulted in permanent impairment and 
 
            permanent disability.
 
            
 
                 Claimant testified that on or about March 20, 1990, he 
 
            injured his right thumb and wrist while preparing to dump a 
 
            bag of plastic material into a machine.  He said that as he 
 
            was lifting the bag, the part that he was holding in his 
 
            left hand tore off and the weight of the bag hyperextended 
 
            his right thumb (Ex. BB, p. 12).  Claimant testified that he 
 
            reported this to his employer and asked whether he should go 
 
            to the doctor and received no response.  Claimant related 
 
            that he then sought help at the Veterans Administration 
 
            Hospital (Tran. pp. 35-37).  
 
            
 
                 The VA records show that at 9:.. (probably 9 a.m.) on 
 
            March 22, 1990, that claimant complained of sharp pains in 
 
            his right thumb and wrist for several weeks.  This note by 
 

 
            
 
            Page   8
 
            
 
            
 
            the nurse adds that claimant had noticed decreased strength 
 
            in his right hand and increased pain with lifting (Ex. 1, p. 
 
            13).  The examining physician then reports "no specific 
 
            injury" (Ex. 1, p. 13).  The physical examination showed 
 
            tender radial aspect of the right wrist and forearm without 
 
            swelling but with crepitus.  Claimant had a full range of 
 
            motion.  The examiner diagnosed tenosynovitis of the right 
 
            forearm (Ex. 1, p. 13).  The note of the physical therapist 
 
            at the VA hospital on the same date, March 22, 1990, with no 
 
            time given, recorded "He said he's had minor pain in this 
 
            area for several months, but pain had increased markedly the 
 
            past two weeks." (Ex. 1, p. 14).  
 
            
 
                 Claimant denied he gave this history to the hospital.  
 
            He said "... I never said nothing like that to anyone." 
 
            (Tran. pp. 36, 57, 70 & 76).
 
            
 
                 Furthermore, the first report of injury filed by 
 
            employer on March 23, 1990, verifies and corroborates 
 
            claimant's testimony that he was loading a 50-pound bag of 
 
            plastic material into a mixer when the top of the bag tore 
 
            off and put the weight of the bag on his right thumb bending 
 
            it back.  The first report of injury says that the injury 
 
            occurred on March 20, 1990 and that the employer became 
 
            aware of the injury on March 21, 1990.
 
            
 
                 At the suggestion of employer, claimant was next seen 
 
            by Kevin Smith, M.D., on March 28, 1990 (Tran. pp. 37 & 38).  
 
            Dr. Smith recorded that claimant hurt his right thumb on 
 
            March 12, 1990 [sic], putting 55-pounds of material into a 
 
            mixer.  His medical note says that the top part of the bag 
 
            tore off and then the bag fell back against claimant's right 
 
            thumb bending it backwards.  X-rays showed no bone 
 
            involvement.  Dr. Smith diagnosed "Right thumb tendon strain 
 
            and joint strain" (Ex. 1, p. 10).  Thus, the first record of 
 
            Dr. Smith on March 28, 1990, confirms that claimant related 
 
            a work injury and that he proceeded on this history for his 
 
            treatment of claimant without disputing it or questioning 
 
            it.  Dr. Smith's date of injury of March 12, 1990, raises 
 
            the suggestion that the injury may have occurred about eight 
 
            days before March 20, 1993 and explain why the VA records 
 
            mention pain for about two weeks on March 22, 1990.
 
            
 
                 Claimant next saw Peter D. Wirtz, M.D., an orthopedic 
 
            surgeon, as requested by Dr. Smith (Tran. p. 40).  Dr. Wirtz 
 
            reported on April 30, 1990, that claimant related to him 
 
            that he bent his thumb backwards while lifting on March 12, 
 
            1990.  Thus, the injury may have occurred on March 12, 1990, 
 
            about two weeks before claimant was first seen at the VA 
 
            hospital.  Dr. Wirtz did not dispute or question this 
 
            history but proceeded on the basis of it.  Dr. Wirtz 
 
            diagnosed soft tissue strain ligamentous in nature of the 
 
            right wrist.  He recommended additional physical therapy.  
 
            He thought the condition should heal without specific 
 
            residuals (Ex. 1, p. 12).  Thus, Dr. Wirtz accepted the 
 
            history that claimant traced to lifting the bag at work.  
 
            Dr. Wirtz began his report by stating this is a 46-year-old 
 
            with right thumb injury on March 12, 1990, which was bent 
 
            backwards with lifting (Ex. 1, p. 12).  
 
            
 

 
            
 
            Page   9
 
            
 
            
 
                 A three phase bone scan was performed at Mercy Hospital 
 
            Medical Center on June 28, 1993.  Michael A. Disbro, M.D., 
 
            the radiologist, proceeded on a diagnosis of right wrist 
 
            strain and concluded as follows, "Severe, erosive 
 
            osteoarthritis of the right navicular-trapezium 
 
            articulation, suspect remote trauma, though I do not 
 
            identify acute fracture." (Ex. 1, pp. 4 & 5).  Thus, the 
 
            radiologist suspected that an earlier trauma was affecting 
 
            claimant's severe osteoarthritis.  The bone scan was taken 
 
            about two months after the alleged injury date of March 20, 
 
            1990 and two and one-half months after the other possible 
 
            injury date of March 12, 1993.
 
            
 
                 Claimant was examined by Mark B. Kirkland, D.O., an 
 
            orthopedic surgeon and he reported to Dr. Smith on July 18, 
 
            1990.  Dr. Smith diagnosed (1) Navicular/trapezial 
 
            arthritis, right hand, (2) de Quervain's disease and (3) 
 
            carpal tunnel syndrome.  He related that claimant stated it 
 
            happened back in March of 1990.  Thus, Dr. Kirkland confirms 
 
            claimant's testimony of an injury in March 1990.
 
            
 
                 Claimant was laid off due to a shutdown of the third 
 
            shift on June 26, 1990 (Ex. 1, p. 16).  Claimant was foreman 
 
            on the third shift.  
 
            
 
                 Three surgeries were performed in 1990.  Dr. Kirkland 
 
            on August 22, 1990 performed surgery.  He performed another 
 
            surgery on September 19, 1990 and Martin S. Rosenfeld, D.O., 
 
            an associate of Dr. Kirkland performed surgery on November 
 
            15, 1990 (Tran. p. 41).
 
            
 
                 Dr. Rosenfeld described these surgeries as a carpal 
 
            tunnel release, a de Quervain's release and an achovioplasty 
 
            for carpal, metacarpal arthritis of the thumb.  Dr. 
 
            Rosenfeld indicates that these surgeries were due to an 
 
            injury at work in March of 1990 (Ex. 1, p. 8).  
 
            
 
                 Claimant was unable to return to work after these 
 
            surgeries because of the lifting restrictions imposed by Dr. 
 
            Rosenfeld.  On February 15, 1991, Dr. Rosenfeld imposed a 
 
            20-pound lifting restriction and indicated that claimant 
 
            could only return to work in a light duty capacity (Ex. 1, 
 
            p. 9).  On July 26, 1991, a 15-pound weight restriction was 
 
            imposed by Dr. Rosenfeld (Ex. 1, p. 8A).  
 
            
 
                 According to interrogatories answered by 
 
            defendant-employer claimant's job was a material 
 
            handler/supervisor on the third shift and the job required 
 
            that he must have the use of both hands.  Furthermore, 
 
            supervisors must have full use of both hands due to work 
 
            with machines and parts produced.  Employer further added 
 
            that claimant could not be an operator (entry-level) because 
 
            it was necessary to use both hands in pulling parts out of 
 
            the machine, making boxes, and lifting boxes onto pallets.  
 
            Van Johnson, vice-president in charge of molding operations, 
 
            stated that claimant needed light duty work but employer had 
 
            no positions open in that capacity and in fact they never 
 
            have any positions available in that capacity (Ex. 1, p. 
 
            18).  
 
            
 

 
            
 
            Page  10
 
            
 
            
 
                 This claimant is foreclosed from all of his previous 
 
            employments that required medium, heavy and very heavy 
 
            lifting.  This is a very substantial loss of employability 
 
            and concomitantly loss of earning capacity.
 
            
 
                 Dr. Rosenfeld stated on August 23, 1991, that using the 
 
            AMA Guides and taking all three surgeries into account he 
 
            determined that claimant had sustained a 10 percent 
 
            permanent physical impairment of the right upper extremity 
 
            as a result of the March 19, 1990 injury.  He said that half 
 
            of this was due to loss of motion and the other half was due 
 
            to pain and loss of strength (Ex. 1, p. 8).  
 
            
 
                 Wherefore, based upon (1) the first report of injury, 
 
            (2) claimant's testimony, (3) the history given to Dr. 
 
            Smith, Dr. Wirtz, Dr. Kirkland and Dr. Rosenfeld and their 
 
            acceptance of this history, and (4) the report of Dr. 
 
            Rosenfeld dated August 23, 1991, assessing an impairment 
 
            rating caused by the March 1990 injury, it is determined 
 
            that claimant did in fact sustain an injury to his right arm 
 
            on or about March 20, 1993, which arose out of and in the 
 
            course of his employment with employer and that the injury 
 
            was the cause of permanent impairment and permanent 
 
            disability.  Iowa Code section 85.64.  If the actual injury 
 
            date happened to be March 12, 1990, rather than March 20, 
 
            1990, it would be immaterial.
 
            
 
                 Therefore, claimant has met the threshold test of 
 
            proving liability on the part of the Second Injury Fund of 
 
            Iowa.  Iowa Code section 85.64.  
 
            
 
                 With respect to industrial disability resulting from 
 
            the combined effects or cumulative effects of both the 1985 
 
            injury to the left knee and the 1990 injury to the right 
 
            arm, the following factors, among others, are taken into 
 
            consideration.
 
            
 
                 Claimant, in his late 40s, was at or near the peak 
 
            earning years of his employment career.  Thus, his 
 
            industrial disability is greater than it would be for an 
 
            older or younger worker.  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 752670 & 805300 (App. 
 
            Dec. April 28, 1989).
 
            
 
                 At the same time claimant is young enough to be 
 
            retrained to perform other employments.  Claimant did in 
 
            fact participate in the Iowa Rehabilitation Services Program 
 
            for about one year where he completed his GED (Tran. pp. 20 
 
            & 21).  This speaks well for claimant's motivation to be 
 
            retrained, to improve himself and increase his employability 
 
            in the competitive labor market.  Earlier, claimant took an 
 
            automotive course and a hydraulics course.  This claimant 
 
            can be retrained but it might be difficult at his age.  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).  
 
            
 
                 By completing his GED, claimant has placed himself on a 
 

 
            
 
            Page  11
 
            
 
            
 
            par equivalent to most persons seeking employment in the 
 
            competitive employment market who do not have college 
 
            training or other specialized training.  This may tend to 
 
            decrease his industrial disability on the one hand because 
 
            it makes him more employable, it also increases his 
 
            industrial disability by showing motivation to do the things 
 
            necessary to be employed.  
 
            
 
                 The biggest factor in claimant's industrial disability 
 
            is the fact that he is now foreclosed from performing very 
 
            heavy, heavy or medium work.  Prior to this injury claimant 
 
            was able to perform any category of work, sedentary, light, 
 
            medium, heavy or very heavy.  Because of this injury 
 
            claimant is now restricted to performing only light duty 
 
            work for the reason that Dr. Rosenfeld imposed permanent 
 
            restrictions of only lifting 15 pounds.  This limitation 
 
            greatly restricts claimant's employability in the 
 
            competitive labor market (Tran. p. 48).  Claimant cited two 
 
            incidents where the lifting restriction precluded him from 
 
            obtaining two jobs that he attempted to obtain.  Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (App. Dec. January 30, 
 
            1979); Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).  Thus, claimant 
 
            is foreclosed from the most plentiful and easiest to obtain 
 
            jobs in the competitive employment market which often pay 
 
            more because they do involve strenuous work.  
 
            
 
                  Furthermore, claimant was injured at age 45.  Normal 
 
            retirement age is often considered to be age 65.  Therefore, 
 
            claimant's permanent restriction from lifting no more than 
 
            15 pounds puts him in the category of light work or 
 
            sedentary work.  Loss of the ability to perform medium, 
 
            heavy, and very heavy work for a period of twenty years 
 
            greatly impairs, limits and restricts claimant's 
 
            employability and concomitantly his loss of earning 
 
            capacity.  Thus, claimant's loss of earning capacity is 
 
            substantial.
 
            
 
                 Another factor in determining the amount of industrial 
 
            disability is the length of time and difficulty claimant 
 
            encountered in obtaining new employment.  Claimant was off 
 
            work or else only performing limited part-time work for 
 
            approximately two years from mid-1990 until mid-1992 (Tran. 
 
            pp. 58 & 59).  Even then, claimant was assisted in obtaining 
 
            only part-time employment through the influence of his 
 
            father-in-law in September of 1991 (Ex. 1, p. 16, Tran. pp. 
 
            48 & 87).  Since then claimant has been able to obtain 
 
            full-time employment with the same employer in September of 
 
            1992.  Claimant contended he did not get a full-time 
 
            contract with employee benefits until July of 1993 and if 
 
            this is the case then his industrial disability would be 
 
            even greater (Tran. pp. 49, 58 & 79).
 
            
 
                 Another significant factor in determining claimant's 
 
            industrial disability is his loss of actual earnings which 
 
            is an indicator of his loss of earning capacity (Tran. p. 
 
            13).  Claimant now earns $8.19 per hour and works 40 hours 
 
            per week (Tran. p. 50).  There is evidence in the record 
 
            that claimant's pervious job for employer is now paying $10 
 

 
            
 
            Page  12
 
            
 
            
 
            per hour (Ex. p. 19).  This constitutes approximately a 20 
 
            percent loss of actual income without taking into 
 
            consideration that claimant had little or no income after he 
 
            was released to return to work by Dr. Rosenfeld in May of 
 
            1991, as stipulated to by the parties, until he obtained 
 
            full-time employment in September of 1992 or 1993, whichever 
 
            the case may be.  Claimant testified that he worked with the 
 
            Rehabilitation Services of Iowa for approximately one year.  
 
            This would probably be from the dates of the surgeries in  
 
            mid-1990 until his part-time employment beginning in 
 
            mid-1991.
 
            
 
                 Claimant testified that he has a number of significant 
 
            physical problems with both his left knee and right arm 
 
            since these injuries.  The left knee problems have been 
 
            described previously.  Claimant testified that his right 
 
            hand is weak and that he is unable to lift any significant 
 
            weight with his right hand and wrist.  If lifting is 
 
            required with the right upper extremity he has to shift the 
 
            work load to the right arm rather than the hand or wrist.  
 
            
 
                 Wherefore, based upon (1) the fact that claimant 
 
            sustained a traumatic injury to his left knee which caused a 
 
            3 percent permanent impairment to that member, (2) that 
 
            claimant sustained a traumatic injury to his right thumb, 
 
            wrist, hand and an arm which caused a 10 percent permanent 
 
            impairment to that member, (3) that claimant is restricted 
 
            from lifting more than 15 pounds with his right arm, (4) 
 
            that claimant has physical difficulties with the functioning 
 
            of his left knee, (5) that claimant's right arm injury 
 
            entailed three separate surgeries and still functions 
 
            poorly, (6) that claimant has sustained a 20 percent loss of 
 
            actual earnings in addition to a long period of unemployment 
 
            or only part-time employment, (7) that claimant is 
 
            foreclosed from very heavy work, heavy work, and medium work 
 
            and is now restricted to light work in his usual occupation 
 
            for many years in the plastics industry, (8) that claimant's 
 
            injury occurred at the near peak of his earnings career in 
 
            his late forties, (9) that claimant has shown motivation to 
 
            find work and be employed as evidenced by his voluntary 
 
            rehabilitation, (10) that claimant was unsuccessful in his 
 
            early attempts to find work, (11) considering all the 
 
            factors used to determine industrial disability Peterson v. 
 
            Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
            February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 
 
            3, State of Iowa Industrial Commissioner Decisions 529 (App. 
 
            Dec. March 26, 1985); and (12) applying agency expertise 
 
            [Iowa Administrative Act section 17A.14(5)], it is 
 
            determined that claimant has sustained a 35 percent 
 
            industrial disability to the body as a whole as the combined 
 
            and cumulative effect from both of these injuries.  
 
            
 
                 The Second Injury Fund of Iowa contends that they are 
 
            not liable for benefits in this case because any industrial 
 
            disability claimant suffers is solely due to his second 
 
            injury which occurred on March 20, 1990, to his right upper 
 
            extremity.  The Fund cites no legal authority for this 
 
            proposition nor can any legal authority be found for this 
 
            proposition by the deputy.  On the contrary, the supreme 
 

 
            
 
            Page  13
 
            
 
            
 
            court has stated that in the case of two scheduled member 
 
            injuries that the employer is only liable for the second 
 
            scheduled member injury and that the Second Injury Fund of 
 
            Iowa is liable for the remaining industrial disability.  
 
            Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989);   
 
            Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470 
 
            (Iowa 1990).
 
            
 
                 This is also confirmed by an examination of Iowa Code 
 
            section 86.64 quoted above which states that the employer 
 
            shall be liable only for the degree of disability which 
 
            would have resulted from the latter injury if had there been 
 
            no preexisting disability.  The statute then continues to 
 
            state that in addition to such compensation the employee 
 
            shall be paid out of the Second Injury Fund the remainder of 
 
            such compensation after first deducting the compensable 
 
            value of the previous lost member or organ.  Iowa Code 
 
            section 85.64.
 
            
 
                 Moreover, it could be argued that if claimant sustained 
 
            zero industrial disability from the first injury and 35 
 
            percent industrial disability from the second injury, when 
 
            zero is combined with 35, "the degree of permanent 
 
            disability involved" mentioned in Iowa Code section 85.64 is 
 
            still 35 percent industrial disability.  
 
            
 
                 Also there is no requirement that the first injury be 
 
            compensable.  Lawyer and Higgs, Iowa Worker's Compensation 
 
            Law and Practice, (2n Ed.) Section 17-4, page 171.
 
            
 
                 Section 85.64 does not deal in percentages of permanent 
 
            disability to the scheduled members or percentages of 
 
            industrial disability.  The disparity between the percentage 
 
            of scheduled member disability between the first injured 
 
            member and the second injured member is immaterial.  Second 
 
            Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470 (Iowa 
 
            1990).
 
            
 
                 It is further determined that any discrepancy as to (1) 
 
            whether claimant had an arthroscopic examination of his left 
 
            knee or (2) whether he reported a work-related injury to the 
 
            Veterans Administration and (3) whether the injury occurred 
 
            on March 12, 1990 or March 20, 1990 are discrepancies in the 
 
            evidence but in the opinion of this deputy did not adversely 
 
            affect the credibility of claimant or the findings of fact 
 
            and law in this case.  
 
            
 
                 It is true, and the Second Injury Fund has established, 
 
            that claimant has had a significant amount of treatment for 
 
            other problems at the Veterans Administration Hospital and 
 
            that the medical records do in fact characterize (1) that 
 
            psychological factors are effecting claimant's physical 
 
            condition, (2) that these psychological factors have their 
 
            source in family problems, (3) that claimant has been 
 
            diagnosed as a hypochondriac and (4) that claimant has been 
 
            assessed as having drug seeking behavior.  However, it is 
 
            determined by this deputy that none of these factors have 
 
            significantly affected either one of claimant's scheduled 
 
            member injuries in this case.  These remarks pertained to 
 
            chest pains and other ailments for which he was treated at 
 

 
            
 
            Page  14
 
            
 
            
 
            the Veteran's Hospital.
 
            
 
                 An industrial disability of 35 percent amounts to 175 
 
            weeks of permanent partial disability benefits.  From this 
 
            amount must be subtracted "the compensable value of the 
 
            previously lost member or organ", the left leg, which is 3 
 
            percent of 220 weeks and equals 6.6 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 The liability of the Second Injury Fund must also be 
 
            reduced by the scheduled member disability attributable to 
 
            this injury of March 20, 1990, which is 10 percent of 250 
 
            weeks which is 25 weeks.  Thus the liability of the Second 
 
            Injury Fund is calculated as 175 weeks reduced by a total of 
 
            31.6 weeks (6.6 weeks plus 25 weeks) and the liability of 
 
            the Second Injury Fund for this case is determined to be 
 
            143.4 weeks.
 
            
 
                 The Fund contends that they are entitled to a credit 
 
            for 27.5 weeks because claimant was paid for a 12.5 percent 
 
            permanent impairment of his left leg.  This is not correct.  
 
            It is immaterial how much claimant was or was not paid for 
 
            the previous injury.  The statute does not mention how much 
 
            claimant was or was not paid.
 
            
 
                 It is immaterial whether the previous loss or loss of 
 
            use to one or more of the designated scheduled members in 
 
            section 85.64 is congenital, developmental, or caused by 
 
            disease or injury Asay v. Industrial Engineering Equipment 
 
            Co., Thirty-three Biennial Report, Industrial Commissioner 
 
            224 (Appeal Decn. Dec. 1977) (District Court Appeal 
 
            Dismissed); Shank v. Mercy Hospital Medical Center, file 
 
            number 719627, Appeal Decn. filed September 27, 1991 (on 
 
            appeal).  
 
            
 
                 The previous loss or loss of use must be a permanent 
 
            disability.  Allen v. Second Injury Fund, State of Iowa, 34 
 
            Biennial Report, Iowa Industrial Commissioner 15 (1980); 
 
            Ross v. Service Master-Story County., Inc., 34 Biennial 
 
            Report, Iowa Industrial Commissioner 273 (1979); Ross v. 
 
            Sioux Quality Packers, Div. of Armour and Company, 34 
 
            Biennial Report, Iowa Industrial Commissioner 276 (1978); 
 
            Anderson v. Second Injury Fund of Iowa, 262 N.W.2d 789 
 
            (Iowa 1978).
 
            
 
                 There is no requirement that the first loss be 
 
            traumatic and it need not be compensable Id. Lawyer and 
 
            Higgs v. Iowa Workers' Compensation--Law and Practice, (2d 
 
            ed.) section 17-3 and section 17-4 pages 170 & 171.  
 
            
 
                 However it must result in some degree of permanent 
 
            disability, usually represented by either a permanent 
 
            impairment rating or permanent restrictions, and tend to 
 
            hinder claimant's ability to earn money.  Irish v. McCreary 
 
            Saw Mill, 175 N.W.2d 364 (Iowa 1970).  That has been 
 
            demonstrated to be 3 percent permanent rating in this case.
 
            
 
                 Section 85.64 specifies that the "compensable value of 
 
            the previously lost member or organ" is to reduce the Second 
 
            Injury Fund's liability.  In this case the compensable value 
 

 
            
 
            Page  15
 
            
 
            
 
            of the first injury, irrespective of how much was or was not 
 
            paid for it was established by Dr. George when he determined 
 
            that claimant sustained a 3 percent permanent partial 
 
            physical disability of the left leg at the level of the knee 
 
            as a result of the industrial trauma of July 1985.  
 
            
 
                 The Second Injury Fund provided no evidence of the fact 
 
            that claimant did in fact receive an award of 12.5 percent 
 
            of 220 weeks which resulted in a 27.5 week award for the 
 
            previous injury (Tran. p. 12).  The Funds contention is 
 
            simply an allegation in prehearing briefs.  There is no 
 
            other evidence to support this allegation.
 
            
 
                 The Fund also contends that their liability is to be 
 
            reduced by the settlement for a previous back injury in the 
 
            amount of 5 percent of 500 weeks, or 25 weeks of permanent 
 
            partial disability benefits.  This is not correct.  First, 
 
            the Fund introduced no evidence that claimant received such 
 
            a settlement.  Second, Iowa Code section 85.64 makes no 
 
            provision for such a reduction in the Fund's liability.  
 
            Third, the Neelans case specifically held "The industrial 
 
            commissioner correctly ruled that the Second Injury Fund 
 
            should be responsible for the industrial disability, less 
 
            the total of the scheduled injury ...".  Second Injury Fund 
 
            v. Neelans, 346 N.W.2d 355, 358 (Iowa 1989).  See also 
 
            Second Injury Fund v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained the burden of proof by 
 
            preponderance of the evidence that he sustained an injury to 
 
            his right arm on March 20, 1990, which arose out of and in 
 
            the course of his employment with employer.  Iowa Code 
 
            section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 That claimant sustained the burden of proof by 
 
            preponderance of the evidence that he sustained a scheduled 
 
            member injury on July 13, 1985, which caused a 3 percent 
 
            permanent impairment and disability to his left leg and also 
 
            a scheduled member injury to his right arm on March 20, 
 
            1990, which caused a 10 percent impairment and disability to 
 
            the right arm and therefore claimant has met the threshold 
 
            requirements and has proven the liability of the Second 
 
            Injury Fund of Iowa.  Iowa Code section 85.64.  Second 
 
            Injury Fund v. Neelans, 36 N.W.2d 355 (Iowa 1989).
 
            
 
                 That claimant has sustained the burden of proof by 
 
            preponderance of the evidence that he sustained a 35 percent 
 
            industrial disability to the body as a whole.  Iowa Code 
 
            section 85.34(2)(u). 
 
            
 
                 That the liability of the Second Injury Fund of Iowa is 
 
            determined as follows.  From the combined and cumulative 
 
            industrial disability of 35 percent which results in 175 
 
            weeks of permanent partial disability benefits is subtracted 
 

 
            
 
            Page  16
 
            
 
            
 
            6.6 weeks for 3 percent of 220 weeks for the injury to the 
 
            left leg and 25 weeks for 10 percent of 250 weeks for the 
 
            permanent impairment to the right arm and the remaining 
 
            liability of the Second Injury Fund of Iowa is 143.4 weeks.  
 
            Iowa Code section 85.64.  Second Injury Fund v. Neelans, 36 
 
            N.W.2d 355 (Iowa 1989).  Second Injury Fund of Iowa v. 
 
            Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant Second Injury Fund of Iowa pay to 
 
            claimant one hundred forty-three point four (143.4) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of two hundred twenty-four and 97/100 dollars ($224.97) per 
 
            week in the total amount of thirty-two thousand two hundred 
 
            sixty and 70/100 dollars ($32,260.70) commencing on November 
 
            5, 1991, as stipulated to by the parties.
 
            
 
                 That interest will accrue from the date of this 
 
            decision Iowa Code section 85.30; Second Injury Fund of Iowa 
 
            v. Braden, 459 N.W.2d 467, 472 (Iowa 1990). 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing, are charged to defendant Second 
 
            Injury Fund of Iowa pursuant to Iowa Code sections 86.19(1) 
 
            and 86.40 and rule 343 IAC 4.33.
 
            
 
                 That both defendant-employer and defendant Second 
 
            Injury Fund of Iowa submit any claim activity reports which 
 
            may be requested by this agency pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                Signed and filed this ____ day of November, 1993.
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Tom L. Drew
 
            Attorney at Law
 
            P.O. Box 8476
 
            3209 Ingersoll Ave., Ste. 105
 
            Des Moines, IA  50312
 
            
 
            Mr. Brian Scieszinski
 
            Mr. Cecil L. Goettsch
 
            Attorneys at Law
 
            801 Grand Ave.
 
            Suite 3700
 
            Des Moines, IA  50309
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            Mr. James F. Christenson
 
            Attorney at Law
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, IA  50319
 
            
 
            
 
            
 
 
            
 
            
 
            
 
                                       5-1108, 5-1401, 5-1402.20, 
 
                                       5-1402.30, 5-1402.40, 5-3202,                
 
                                       5-3203
 
                                       Filed November 15, 1993
 
                                       Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                    
 
            RALPH SNYDER,  
 
                      
 
                 Claimant, 
 
                     
 
            vs.       
 
                                               File No. 944044
 
            MERCURY TOOL & ENGINEERING,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            EMPLOYERS MUTUAL COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA    
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1108, 511401, 5-1402.20, 5-1402.30, 5-1402.40, 5-3202, 
 
            5-3202
 
            
 
                 Claimant was awarded 143.4 weeks of benefits from the 
 
            Second Injury Fund of Iowa.
 
            
 
                 The first injury to the left knee caused a 3 percent 
 
            permanent impairment and had a scheduled value of 6.6 weeks.  
 
            The second injury to the arm caused a 10 percent permanent 
 
            impairment and had a scheduled value of 25 weeks.  Claimant 
 
            was determined to have a 35 percent industrial disability 
 
            with a value of 175 weeks.  The net amount owed by the 
 
            Second Injury Fund was 143.4 weeks (175 weeks minus 6.6 
 
            weeks and 25 weeks equals 143.4 weeks).  
 
            
 
                 Discrepancies of (1) whether the injury date was March 
 
            20, 1990 or March 12, 1990, (2) why the VA records did not 
 
            record a work injury, (3) whether claimant did or did not 
 
            have an arthroscopic examination for the knee at the time of 
 
            the first injury and (4) whether claimant began full-time 
 
            employment again in July 1992 or July 1993, were outweighed 
 
            by (1) the fact that claimant reported an injury to employer 
 
            when it occurred, (2) employer completed a first report of 
 
            injury, (2) employer and insurance carrier determined that 
 
            claimant was credible enough to justify making full payment 
 
            on this injury claim, (3) four doctors, Dr. Smith, Dr. 
 

 
            
 
            Page   2
 
            
 
            
 
            Wirtz, Dr. Kirkland and Dr. Rosenfeld determined that 
 
            claimant was credible and treated him based on the same 
 
            history of this injury that claimant supplied to them and 
 
            (4) that the deputy found that claimant was credible and 
 
            truthful even though he may have been a poor historian.  
 
            Likewise, claimant had a number of health and family 
 
            problems that may have affected his recollection over the 
 
            three and one-half years after the time of the injury and 
 
            before this hearing.
 
            
 
                 The chief elements in determining industrial disability 
 
            were (1) claimant's age, 45 at the time of injury, (2) 10th 
 
            grade education with a GED from Iowa Vocational 
 
            Rehabilitation, (3) foreclosed from very heavy, heavy and 
 
            medium work for 20 years from the time of the injury at age 
 
            45 until what is frequently considered as normal retirement 
 
            age of 65 which restricts his employability and 
 
            concomitantly his earnings capacity, (4) a second injury 
 
            that was a traumatic injury which required three surgeries, 
 
            (5) a permanent restriction of not to lift more than 15 
 
            pounds for the rest of his working life, (6) inability to 
 
            find work with his restriction, (7) motivation to find 
 
            employment by pursuing Iowa vocational rehabilitation for 
 
            approximately one year, (8) a 20 percent actual loss of 
 
            earnings at the time of hearing, preceded by a lengthy 
 
            period of unemployment and part-time employment, (9) a three 
 
            percent permanent impairment to his left knee and (10) a 10 
 
            percent permanent impairment to his right arm.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JACK BOLEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 944063
 
            JACK B. KELLEY, INC.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LEGION INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jack 
 
            Boley against Jack B. Kelley, Inc., and its insurance 
 
            carrier, Legion Insurance Company, based upon an alleged 
 
            injury of April 2, 1990.  Claimant seeks compensation for 
 
            healing period, permanent partial disability and payment of 
 
            medical expenses.  The primary issue in the case deals with 
 
            liability.  There is a dispute in regard to whether or not 
 
            the claimant's injury arose out of and in the course of his 
 
            employment.  There is further dispute regarding the 
 
            employer/employee relationship between claimant and Jack B. 
 
            Kelley, Inc., and the liability of Legion Insurance Company 
 
            for this claim.
 
            
 
                 The case was heard at Davenport on March 25, 1992.  The 
 
            evidence consists of testimony from Michael Lahr, Michael 
 
            Volz and Jack Boley.  The record also contains joint 
 
            exhibits 1 through 13.  Deposition exhibits 3 and 4 which 
 
            are part of exhibit 13 were considered for purposes of 
 
            expressing opinions in exhibit 13 but are not in the record 
 
            of the case as direct evidence.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Jack Boley is a 60 year old married man who dropped out 
 
            of school during the tenth grade.  He has worked as a truck 
 
            driver since 1972.  He had worked as a warehouse foreman 
 
            from 1949 until 1972.
 
            
 
                 In January of 1988, Boley began working for Michael 
 
            Volz driving a truck owned by Volz.  Volz described his 
 
            operation as one in which he gives people the opportunity to 
 
            earn money by driving his trucks with Volz performing the 
 
            paperwork.  Volz stated that he simply wanted a return on 
 
            his investment in the trucks.  As part of the arrangement, 
 
            Volz paid wages to the people driving the trucks.  Volz was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            paid for the loads carried by the trucks and in turn paid 
 
            the drivers.  Volz had essentially nothing to do with 
 
            directing the work of the drivers, however, as their work 
 
            activities were typically directed by whomever the truck has 
 
            been leased to.  Volz stated that he owns trucks and leases 
 
            out the equipment.  He, himself, drives occasionally.
 
            
 
                 Prior to April 2, 1990, Volz, acting through Boley, to 
 
            whom he had given a power of attorney, entered into a lease 
 
            arrangement with Jack B. Kelley, Inc.  As established by 
 
            testimony from Volz, Boley and Lahr, part of the agreement 
 
            was that Jack B. Kelley, Inc., would provide workers' 
 
            compensation insurance for the driver of the truck, even 
 
            though Volz was to remain responsible for payment of wages 
 
            to the driver and to otherwise stand in the status of 
 
            employer of the driver (Ex. 12).  It is found that the term 
 
            of the agreement wherein Jack B. Kelley, Inc., would provide 
 
            the workers' compensation insurance was one of the essential 
 
            factors relied upon by Volz and Boley when deciding to enter 
 
            into the agreement which is in the record as exhibit 12.
 
            
 
                 It is further found that the actual day-to-day 
 
            operation was essentially consistent with the written 
 
            agreement.  Jack B. Kelley, Inc., told Boley what to do and 
 
            when to do it and the only role played by Volz was in 
 
            matters concerned with paying Boley and maintenance of the 
 
            truck.  It is noted that Volz provided the tractor while 
 
            Jack B. Kelley, Inc., provided the trailer.  In order for 
 
            this arrangement to be created and to continue to exist it 
 
            is noted that both Volz and Kelley had the right to select 
 
            the driver.  Volz could not force Jack B. Kelley, Inc., to 
 
            have a driver in the truck which was unacceptable to them 
 
            nor could Jack B. Kelley, Inc., place a driver into the 
 
            truck without the consent of Volz.  Volz was responsible for 
 
            paying wages to Boley.  Either Boley or Volz or Jack B. 
 
            Kelley, Inc., could terminate the relationship at any time.  
 
            Jack B. Kelley, Inc., was clearly in control of the work.  
 
            Jack B. Kelley, Inc., would be the party sought to be held 
 
            responsible for and in charge of the work which Boley 
 
            performed since Jack B. Kelley, Inc., had contracted to 
 
            perform trucking services with the parties who had products 
 
            to be transported.
 
            
 
                 It is further found that in entering into the 
 
            agreement, exhibit 12, Jack B. Kelley, Inc., acting through 
 
            its authorized representatives, represented that it would 
 
            provide workers' compensation insurance for Boley, or anyone 
 
            else who operated the truck owned by Volz.  Neither Boley 
 
            nor Volz knew that Jack B. Kelley, Inc., would not purchase 
 
            such insurance.  Since the representation as to providing 
 
            workers' compensation insurance was part of the package 
 
            offered by Jack B. Kelley, Inc., it can only be found that 
 
            Jack B. Kelley, Inc., intended that the truck owners and 
 
            drivers who contracted with them would rely upon Jack B. 
 
            Kelley, Inc., to provide workers' compensation insurance.  
 
            Volz and Boley relied upon the promise of Jack B. Kelley, 
 
            Inc., to provide workers' compensation insurance for Boley 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and did not purchase or acquire other insurance.  Since the 
 
            claim has been denied, in part on grounds that there is no 
 
            coverage for Boley, their reliance has been prejudicial to 
 
            them.  A strange part about this case is that it appears as 
 
            though Jack B. Kelley, Inc., did, in fact, purchase 
 
            insurance to cover Boley but that the insurance carrier has, 
 
            nevertheless, declined to pay the claim.  It is found that 
 
            Michael Volz and Jack Boley were intended to benefit from 
 
            the purchase of workers' compensation insurance by Jack B. 
 
            Kelley, Inc.  
 
            
 
                 Having observed the appearance and demeanor of the 
 
            witnesses who testified at the hearing of this case and 
 
            having considered their testimony in light of the other 
 
            evidence in the record, all three are found to be credible 
 
            witnesses.  It is found that Jack Boley did in some manner 
 
            strained or injured his back on April 2, 1990, while 
 
            performing services under the direction of Jack B. Kelley, 
 
            Inc.  It is clear from the record of this case that Boley 
 
            had preexisting problems with his back but that he had been 
 
            able to function without any substantial impairment or 
 
            disability prior to April 2, 1990.  On April 2, 1990, he 
 
            suddenly became disabled by his back.  Prior to that date, 
 
            his back problems had not prevented him from working.  He 
 
            had several episodes of back pain but they resolved with 
 
            rest or chiropractic treatment.  It is found to be probable 
 
            that claimant did rupture a disc in his back on April 2, 
 
            1990, as evidenced by the onset of severe, disabling pain 
 
            (Ex. 7, p. 1; Ex. 13, pp. 23-24).  It is further found that 
 
            Boley injured his back while unloading on April 2, 1990, in 
 
            the manner described by Lahr and Boley at hearing.  That 
 
            testimony is corroborated by a report from Ron Buracker, 
 
            D.C., whom claimant consulted on April 2, 1990.  This 
 
            finding is made with the knowledge that claimant had seen 
 
            Dr. Buracker a few days earlier with radiating low back pain 
 
            of much less severity.  It is made recognizing that claimant 
 
            did not give a detailed description of what had happened 
 
            when he was initially treated by Dr. Rovine.  It appears as 
 
            though no one having actual first hand knowledge of the 
 
            facts disputes that Boley was injured.  It appears as though 
 
            the denial of the claim resulted in part from a lack of 
 
            reporting by Lahr, the manager for Jack B. Kelley who was 
 
            responsible for reporting the injury to the insurance 
 
            carrier.
 
            
 
                 The relationship between Volz and Jack B. Kelley, Inc., 
 
            could in some manner be termed a partnership in which Volz 
 
            provided a truck and driver while Jack B. Kelley, Inc., 
 
            lined up work for the truck.   The revenues from the work 
 
            were divided between Jack B. Kelley, Inc., and Volz in the 
 
            manner provided by exhibit 12.  Volz could also be termed a 
 
            labor broker who provided employees to Jack B. Kelley, Inc., 
 
            to perform its work.  He also leased equipment to Jack B. 
 
            Kelley, Inc.  The relationship between Volz, Boley and Jack 
 
            B. Kelley, Inc., was one in which Volz was the de jure 
 
            employer of Boley  who paid Boley and in essence directed 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            him to do whatever Jack B. Kelley, Inc., told him to do.  On 
 
            the other hand, Jack B. Kelley, Inc., was the de facto 
 
            employer of Boley who gave Boley his day-to-day directions 
 
            concerning the work that was to be performed.  It is 
 
            therefore found that both Michael Volz and Jack B. Kelley, 
 
            Inc., were the employers of Jack Boley on April 2, 1990, 
 
            when Boley injured his back.
 
            
 
                 The parties stipulated to the extent of Boley's healing 
 
            period entitlement.  That stipulation is amply supported by 
 
            the evidence in the record and is adopted as being correct.
 
            
 
                 Boley has returned to the same type of work without any 
 
            reduction in earnings.  He appears capable of performing the 
 
            work without any substantial limitation as a result of the 
 
            injury.  There is, however, always uncertainty with regard 
 
            to the future.  Boley has little in the way of definite 
 
            activity restrictions and few physical complaints.  He is an 
 
            older worker and would likely have difficulty finding 
 
            suitable employment should his current employment situation 
 
            end.  There is nothing in the record, however, to indicate 
 
            that Boley's current employment status is in any way in 
 
            jeopardy.  There is likewise nothing in the record which 
 
            insures that Volz, a relatively small operator, will 
 
            continue to employ Boley indefinitely into the future.  As 
 
            with many things, the only thing that is certain is that 
 
            there is a degree of uncertainty.  It is therefore found 
 
            that Jack Boley has experienced a 10 percent reduction in 
 
            his earning capacity as a result of the April 2, 1990 
 
            injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Generally, an employee of an independent contractor is 
 
            not an employee of the general contractor.  For an owner-
 
            operator to be meet the statutory definition of an 
 
            independent contractor, it is necessary that Iowa Code 
 
            section 85.61(3)(c) be complied with.
 
            
 
                 The law regarding employer/employee relationship is 
 
            well settled.  Nelson v. Cities Service Oil Company, 146 
 
            N.W.2d 261, 265 (Iowa 1966).  Of the five criteria, the 
 
            first and third were held equally by Volz and Jack B. 
 
            Kelley, Inc.  The second points to Volz.  The fourth and 
 
            fifth point to Jack B. Kelley, Inc.  When considering those 
 
            criteria, the evidence more strongly points to Jack B. 
 
            Kelley, Inc., as being the employer of Jack Boley than it 
 
            does to Mich further noted that the arrangement between Jack B. 
 
            Kelley, Inc., and Volz which existed in this case is fully 
 
            in conformance with the version of Iowa Code section 
 
            85.61(3)(c) which was in effect at the time of this injury.  
 
            Iowa Code section 85.61 was amended in 1986, in part, to 
 
            avoid situations where there was an absence of coverage or 
 
            duplication of coverage and in part to statutorily authorize 
 
            the motor carrier to purchase insurance and, if it chose to 
 
            do so, to charge the cost of the insurance to the owner of 
 
            the vehicle.  In the Matter of the Interpretation of Senate 
 
            File 2104, Declaratory Ruling (August 21, 1986).  The 1986 
 
            amendment was intended to remedy the situation where neither 
 
            the owner-operator nor the motor carrier provided insurance 
 
            and numerous injured employee drivers were left to seek 
 
            compensation from an insolvent uninsured employer who had 
 
            neglected to purchase insurance or from a motor carrier who 
 
            had not paid a premium to cover the employee of the owner-
 
            operator.  Having been directly involved in the drafting of 
 
            the 1986 amendment, the undersigned is fully aware that the 
 
            intent was that all employee drivers be covered by workers' 
 
            compensation insurance and that the motor carrier, who 
 
            receives the payment for the work the driver actually 
 
            performs, be held responsible for seeing to it that 
 
            insurance was in force either through purchasing the 
 
            insurance itself or through requiring the owner of the truck 
 
            driven by the employee driver to provide a certificate 
 
            showing insurance to be in effect.  If the motor carrier 
 
            defaulted in its obligation to be certain that insurance was 
 
            in effect then the motor carrier was liable as an employer 
 
            since it did not completely meet the statutorily created 
 
            definition which would qualify the owner-operator as an 
 
            independent contractor.  Motor carriers, such as Jack B. 
 
            Kelley, Inc., are generally more financially sound and more 
 
            stable than owner-operators.  In view of such, they are more 
 
            likely to comply with a legal requirement for purchasing 
 
            workers' compensation insurance.  Since they receive payment 
 
            for hauling the loads which are hauled and then make 
 
            distribution to the owner-operator, the motor carrier is in 
 
            a better position to purchase workers' compensation 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            insurance for all drivers than would be the owner-operator.  
 
            The chaos which existed before the 1986 amendment was such 
 
            that responsible owner-operators often provided duplicate 
 
            insurance coverage while irresponsible ones provided none.  
 
            Motor carriers were at a loss to know whether or not to 
 
            purchase insurance.  The 1986 amendment was intended to 
 
            provide certainty, stability and predictability with regard 
 
            to the purchase of insurance.  It further promoted the well 
 
            recognized public policy of providing workers' compensation 
 
            benefits to all who can be brought within its coverage.  It 
 
            was intended to promote compliance with the law which 
 
            requires employers to purchase insurance.   A 1991 amendment 
 
            to the statute, as found in section 87.1 of the current 
 
            code, thwarted what was intended by the 1986 amendment.  
 
            Motor carriers are now authorized to purchase insurance for 
 
            owner-operators, but apparently not for the employees of 
 
            owner-operators and motor carriers are no longer responsible 
 
            for requiring owner-operators to provide workers' 
 
            compensation insurance for the employees of the owner-
 
            operators.  The current version is not controlling in this 
 
            case, however.
 
            
 
                 It is therefore concluded that Jack B. Kelley, Inc., is 
 
            an employer of Jack Boley for purposes of workers' 
 
            compensation coverage and it is responsible, jointly and 
 
            severally with Michael Volz, for paying benefits for Boley's 
 
            injury which arose out of and in the course of his 
 
            employment on April 2, 1990.  Under any analysis of the 
 
            facts in this case, whether the traditional rules of 
 
            employer/employee relationship are applied, whether the 
 
            doctrine of estoppel is applied or whether section 
 
            85.61(3)(c) of the 1989 Code of Iowa is applied, the result 
 
            is the same.  Jack B. Kelley, Inc., is liable.  In view of 
 
            its contractual obligation to pay as a result of coverage 
 
            for Boley having been purchased, Legion Insurance Company is 
 
            liable to pay benefits in this case, regardless of whether 
 
            the employer is Jack B. Kelley, Inc., Michael Volz or both.  
 
            Boley was clearly an intended beneficiary of that workers' 
 
            compensation insurance policy contract.  Under the 
 
            circumstance of this case, Jack B. Kelley, Inc., purchased 
 
            insurance as the agent for Michael Volz.  The obligation of 
 
            the insurance carrier to pay is the same as though Volz had 
 
            personally written the check.  The fact that the insurance 
 
            carrier may have chosen to issue the policy only in the name 
 
            of Jack B. Kelley, Inc., is not controlling.  This agency 
 
            has full jurisdiction to determine the binding force of 
 
            insurance policies.  Travelers Insurance Company v. Sneddon, 
 
            249 Iowa 393, 86 N.W.2d 870 (1957).  If it is necessary to 
 
            reform the insurance policy contract to expressly show 
 
            Michael Volz as the insured employer and Jack Boley as an 
 
            insured employee, then it is concluded that such is hereby 
 
            accomplished as Volz and Boley were clearly intended 
 
            beneficiaries and persons intended to be covered by the 
 
            contract.
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law m253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 Dr. Rovine is equivocal about causation.  A report from 
 
            Franciscan Regional Hospital, however, makes a finding of 
 
            causation with regard to the injury (Ex. 10).  The fact that 
 
            claimant's severe symptoms came on rapidly while he was at 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            work is strong evidence that the condition is work related.  
 
            The fact that the claimant has been found to be extremely 
 
            credible further supports the determination that his injury 
 
            arose out of and in the course of his employment.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Boley underwent disc excision surgery (Ex. 8).  He has 
 
            approximately a 10 percent functional impairment.  His 
 
            restrictions are in the range of 50 pounds.  There is no 
 
            showing in the record that this impairs his ability to be 
 
            employed as a truck driver doing the type of driving he has 
 
            performed for the last several years.  He has been found to 
 
            have a 10 percent loss of earning capacity.  This is 
 
            equivalent to a 10 percent permanent partial disability 
 
            which under the provisions of Iowa Code section 85.34(2)(u) 
 
            entitles him to receive 50 weeks of permanent partial 
 
            disability compensation.
 
            
 
                 It should be noted that the rate which is established 
 
            by stipulation in the prehearing report is not found in the 
 
            benefit booklet.  The closest correct rate, and the one 
 
            which would be applicable if claimant were married, entitled 
 
            to two exemptions and had earnings of $500 per week, all as 
 
            stipulated in the prehearing report, is $309.26 per week.  
 
            That correct rate will be used in this decision.
 
            
 
                 The medical expenses claimant seeks to recover are 
 
            found in exhibit 11.  They are as follows:  St. Luke's 
 
            Hospital, pages 1-9 in the amount of $7,698.75 (the charges 
 
            on page 10 appear to be the same as those on page 6); Mercy 
 
            Hospital Emergency Room (page 11) in the amount of $207.00; 
 
            Mercy Hospital Emergency Room physicians (page 12) in the 
 
            amount of $88.00; Bettendorf Medical Center (page 13) in the 
 
            amount of $31.00; Ron Buracker, D.C. (page 14) in the amount 
 
            of $15.00; Orthopaedic Surgery Associates (page 15) in the 
 
            amount of $217.50; The Neurology Group, P.C. (page 16) in 
 
            the amount of $3,155.00.  The total computes to $11,412.25.  
 
            Since the only issue shown in the prehearing report was 
 
            liability and liability has been determined in the favor of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            the claimant, defendants are responsible for payment of all 
 
            the foregoing medical expenses.  This decision does not make 
 
            any ruling or determination with regard to the rights of 
 
            subrogation which may be held by any insurance company or 
 
            with regard to whether or not defendants are entitled to 
 
            credit for the amounts paid by any other insurance carrier.
 
            
 
                 The Pro Tanto rule applies in workers' compensation 
 
            proceedings as the same was described in Glidden v. German, 
 
            360 N.W.2d 716 (Iowa 1984).  In view of such, claimant would 
 
            not be entitled to any additional recovery if he were to 
 
            make a claim against Michael Volz.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that Jack B. Kelley, Inc., and 
 
            Legion Insurance Company pay Jack Boley twenty-nine point 
 
            one four three (29.143) weeks of compensation for healing 
 
            period at the rate of three hundred nine and 26/100 dollars 
 
            ($309.26) per week payable commencing April 2, 1990.
 
            
 
                 IT IS FURTHER ORDERED that defendants Jack B. Kelley, 
 
            Inc., and Legion Insurance Company pay Jack Boley fifty (50) 
 
            weeks of compensation for permanent partial disability at 
 
            the rate of three hundred nine and 26/100 ($309.26) per week 
 
            payable commencing October 23, 1990.
 
            
 
                 IT IS FURTHER ORDERED that the entire amount awarded 
 
            herein is past due and owing and shall be paid to claimant 
 
            forthwith in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30 computed from the day each payment 
 
            came due as ordered herein until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that defendants Jack B. Kelley, 
 
            Inc., and Legion Insurance Company pay the following medical 
 
            expenses as shown in exhibit 11:
 
            
 
                 St. Luke's Hospital                     $ 7,698.75
 
                 Mercy Hospital Emergency Room               207.00
 
                 Mercy Hospital Emergency Room Physicians     88.00
 
                 Bettendorf Medical Center                    31.00
 
                 Ron Buracker, D.C.                           15.00
 
                 Orthopaedic Surgery Associates              217.50
 
                 The Neurology Group, P.C.                 3,155.00
 
            
 
                                          Total          $11,412.25
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            218 6th Ave  Ste 300
 
            P O Box 9130
 
            Des Moines IA 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1301; 1402.10; 2102
 
                                           Filed September 24, 1992
 
                                           Michael T. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JACK BOLEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 944063
 
            JACK B. KELLEY, INC.,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LEGION INSURANCE ,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1301; 1402.10; 2102
 
            Claimant was the employee of the owner of a truck who then 
 
            leased the truck to the motor carrier/defendant.  Part of 
 
            the lease agreement provided that the motor carrier would 
 
            provide workers' compensation insurance.  It purchased 
 
            coverage for the claimant but when claim was made the 
 
            insurance carrier denied the claim asserting that the 
 
            claimant was not the employee of the motor carrier.  It was 
 
            held as follows:
 
            1.  Claimant was shown to be an employee under traditional 
 
            precedents.
 
            2.  Motor carrier, who agreed to purchase insurance and the 
 
            insurance carrier with whom it did purchase insurance were 
 
            estopped from denying coverage.
 
            3.  The claimant and the owner of the truck were determined 
 
            to be intended third party beneficiaries of the insurance 
 
            policy contract.
 
            4.  The claimant was a joint employee of both the truck 
 
            owner and the motor carrier/defendant.
 
            5.  The insurance policy contract in question was reformed 
 
            to show the truck owner as an insured employer and the 
 
            claimant as an insured employee.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1000; 5-2909
 
                                                 Filed May 25, 1993
 
                                                 Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            EDWARD WILKINS,               :
 
                                          :      File No. 944100
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        MEMORANDOM OF
 
                                          :
 
            UNIVERSAL RUNDLE CORPORATION, :        DECISION ON
 
                                          :
 
                 Employer,                :     EXPEDITED CONTESTED
 
                                          :
 
            and                           :         PROCEEDINGS
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1000; 5-2909
 
            
 
            Found claimant shall pay his former attorney $100 in full 
 
            settlement of attorney fees.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DESIREE SIEFKAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :          File No. 944404
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 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.
 
            
 
                                      ISSUE
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  The issue raised on appeal 
 
            is:  "whether the deputy erred in concluding Desiree failed 
 
            to prove she suffers from an occupational disease."
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed November 12, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The sole issue on appeal is whether claimant's cubital 
 
            tunnel syndrome constitutes an occupational disease under 
 
            Iowa Code chapter 85A, or an injury under chapter 85.
 
            
 
                 Claimant concedes in her reply brief that her cubital 
 
            tunnel syndrome is a repetitive trauma syndrome:
 
            
 
                 Thus, it really does not matter whether the 
 
                 individual has tendinitis, carpal, ulnar or 
 
                 cubital tunnel syndrome, lateral epicondylitis, 
 
                 thoracic outlet syndrome, bursitis, tenosynovitis 
 
                 or any of the various other disorders that are 
 
                 commonly associated with RMD (repetitive motion 
 
                 disorder)....[T]hese disorders fall within the 
 
                 class of conditions which are now commonly 
 
                 referred to as repetitive trauma or overuse 
 
                 syndromes....
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The issue of whether carpal tunnel syndrome caused by 
 
            repetitive motion constitutes an occupational disease or a 
 
            traumatic injury was addressed in Noble v. Lamoni Products, 
 
            Appeal Decision, May 7, 1992.  That case discussed the 
 
            differences between an occupational disease under chapter 
 
            85A and an injury under chapter 85.  Noble dealt with carpal 
 
            tunnel syndrome, a repetitive motion disorder; claimant in 
 
            the case sub judice concedes that her cubital tunnel 
 
            syndrome is also a repetitive motion disorder.
 
            
 
                 The record shows that claimant's physicians related her 
 
            arm condition to repetitive trauma.  Dr. Fotiabus attributed 
 
            the condition to "overuse," and Dr. Grundberg stated that 
 
            claimant's cubital tunnel condition was caused by 
 
            "repetitive work."
 
            
 
                 The reasoning and analysis stated in Noble is 
 
            incorporated herein.  Claimant's cubital tunnel syndrome is 
 
            an overuse syndrome and constitutes an injury under Iowa 
 
            Code chapter 85 and not an occupational disease under Iowa 
 
            Code chapter 85A.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from this proceeding.
 
            
 
                 That claimant shall pay the costs of the appeal 
 
            including the transcription of the hearing.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                     ________________________________
 
                                     BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Avenue  STE 201
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola, Iowa  50213
 
            
 
 
            
 
 
 
                                 
 
                                   
 
                                                2203
 
                                                Filed March 29, 1993
 
                                                BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DESIREE SIEFKAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :          File No. 944404
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            2203
 
            Claimant's cubital tunnel syndrome, a repetitive motion 
 
            disorder, held to constitute an injury and not an 
 
            occupational disease pursuant to Noble v. Lamoni Products.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DESIREE SIEFKAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 944404
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Desiree 
 
            Siefkas, claimant, against Furnas Electric Company, 
 
            employer, and Liberty Mutual Insurance Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            January 8, 1990.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on October 24, 
 
            1991, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The parties were 
 
            given the option of filing legal briefs.  The record in this 
 
            case consists of testimony from claimant, Melvin Bobo and 
 
            Sally Riekena and joint exhibits 1-2, claimant's exhibits 
 
            3-8 and defendants' exhibit A.
 
            
 
                                      issue
 
            
 
                 The only issue to be determined in this case is whether 
 
            claimant sustained an occupational disease under Chapter 85A 
 
            rather than an injury under Chapter 85 of the Code of Iowa 
 
            and, if so, the extent of entitlement to weekly compensation 
 
            for permanent disability and the type of permanent 
 
            disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on November 25, 1959 and graduated 
 
            from high school in 1978.  She attended the Iowa School of 
 
            Beauty earning a certification as Cosmetologist in May 1979.  
 
            She attended Southwest Community College from September 
 
            through December 1990.  She enrolled there as a full time 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            student from January through May, 1991.  She moved to the 
 
            State of Missouri in June 1991, and in August enrolled at 
 
            East Central College in an Associate of Arts degree program 
 
            in greenhouse/nursery management.
 
            
 
                 Claimant worked at various times as a small products 
 
            assembler, inspection assistant, assistant librarian, 
 
            waitress, hostess and hair stylist.  She commenced work with 
 
            employer in August 1987.  She worked at various times as a 
 
            coil solderer and pressure switch builder.  She last worked 
 
            for employer on September 14, 1990 and was earning $6.29 per 
 
            hour.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was seen at Clarke Medical Clinic by George 
 
            Fotiadis, M.D., company physician, on January 8, 1990, with 
 
            complaints of left arm pain.  She related no specific injury 
 
            but noted that her pain pattern started on the first of the 
 
            year.  Dr. Fotiadis indicated that her pain was of a 
 
            muscular origin and he prescribed Ibuprofen, four times 
 
            daily, to relieve inflammation.  On January 15, 1990, 
 
            claimant presented to the clinic with persistent elbow pain.  
 
            A physical therapy evaluation was prescribed.  On February 
 
            2, 1990, she was found to have a normal range of motion at 
 
            the shoulders and elbows and a negative neurological 
 
            examination.  She returned to part-time and then full time 
 
            work activity.  On February 15, 1990, she again presented to 
 
            Dr. Fotiadis with complaints of shoulder and elbow pain.  
 
            Her complaints persisted and she was referred to Arnis B. 
 
            Grundberg, M.D., an orthopedic surgeon, for further 
 
            evaluation (Exhibit 1a).
 
            
 
                 Dr. Grundberg saw claimant on March 16, 1990.  He 
 
            stated that "[s]he points to the cubital tunnel as the area 
 
            where most of her pain is and it radiates from there to the 
 
            wrist.  Intermittently, it also radiates into the ring and 
 
            little finger and then there is numbness and tingling in 
 
            these digits."  (Ex. 2a)  Based on the results of a physical 
 
            examination, Dr. Grundberg concluded that claimant suffered 
 
            from (1) compression, ulnar nerve, left elbow and, (2) mild 
 
            median epicondylitis, left elbow.  He referred her for an 
 
            EMG evaluation (Ex. 2a, page 1).
 
            
 
                 Although the results of an EMG were normal, 
 
            nevertheless, Dr. Grundberg diagnosed mild left cubital 
 
            tunnel syndrome.  He opined that her problem would best be 
 
            handled by work modifications and analgesics (Ex. 2, p. 2).
 
            
 
                 Claimant subsequently returned to Dr. Fotiadis with arm 
 
            and shoulder symptoms.  On May 29, 1990, Dr. Fotiadis 
 
            returned claimant to Dr. Grundberg for further evaluation.  
 
            She was referred for a repeat EMG evaluation.  On June 5, 
 
            1990, Dr. Grundberg reported that test results were 
 
            suggestive of a left cubital tunnel syndrome.  He 
 
            recommended either doing something easy at work or surgical 
 
            therapy with a 95 percent chance of relieving her problem 
 
            (Ex. 2, p. 3).
 
            
 
                 On June 27, 1990, claimant reported to Dr. Grundberg 
 
            that she had developed symptoms in her right arm similar to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            those in her left.  An examination on June 29, 1990, 
 
            revealed mild right cubital tunnel syndrome in addition to 
 
            severe left cubital tunnel syndrome.  Dr. Grundberg 
 
            recommended that she quit her job at Furnas and perform 
 
            easier type work (Ex. 2, p. 3).
 
            
 
                 On July 2, 1990, claimant underwent decompression of 
 
            the left cubital tunnel.  On July 31, 1990, he reported 
 
            "[t]he numbness and tingling is mostly gone.  The deep pain 
 
            on the left side is gone.  Grip right is 40, left 20; Pinch 
 
            right 4, left 3.5.  The patient plans on quitting her 
 
            employment at Furnas Electric and she will work with a 
 
            Rehabilitation Service to be re-trained for a different 
 
            job."  (Ex. 2a, p. 4).
 
            
 
                 On August 14, 1990, Dr. Grundberg gave claimant a note 
 
            indicating that her healing period will end on September 14, 
 
            1990, and recommended that she not return to her former job 
 
            nor perform repetitive work activity.  On August 17, 1990, 
 
            Dr. Grundberg clarified that she should do no assembly line 
 
            work (Ex. 2, p. 4).
 
            
 
                 On November 19, 1990, claimant underwent decompression 
 
            of the right cubital tunnel.  On January 8, 1991, she was 
 
            told that the healing period for her right arm will end on 
 
            February 5, 1991.  An examination on April 9, 1991, revealed 
 
            an absence of numbness or tingling on the right but pain on 
 
            the medial aspect of the elbow.  Tenderness just distal to 
 
            the lateral epicondyle of the right elbow was evident.  A 
 
            follow-up examination on July 2, 1991, showed numbness in 
 
            the right little finger but overall her right hand and elbow 
 
            were doing well (Ex. 2, pp. 5-6).
 
            
 
                 Dr. Grundberg gave claimant a five percent permanent 
 
            impairment rating in her right and left arm due to cubital 
 
            tunnel syndrome (Ex. 2c, p. 1 and Ex. 2d, p. l).
 
            
 
                 Claimant hired Melvin Bobo, a vocational rehabilitation 
 
            counselor, to perform a vocational assessment.  Mr. Bobo 
 
            testified at the hearing and stated that in making such an 
 
            assessment, he takes into consideration claimant's 
 
            education, work history, medical limitations and labor 
 
            market factors.  He testified that he interviewed claimant 
 
            on one occasion and obtained from her general information 
 
            regarding her background.  Using statistics from the Iowa 
 
            Department of Employment Services, Mr. Bobo testified that 
 
            he made a job search in the seven county area around 
 
            Osceola, Iowa where claimant was living at the time of her 
 
            injury.  He identified two positions prevalent in that area 
 
            which he felt that claimant would be able to perform with 
 
            some accommodations.  These included sales clerk and 
 
            receptionist.  He testified that a sales clerk position in 
 
            that service delivery area typically pays $3.86 per hour 
 
            while a receptionist position pays $4.90 per hour.
 
            
 
                 Defendants presented a vocational assessment through a 
 
            report made by Jeff L. Johnson, a vocational consultant, on 
 
            October 23, 1991.  Mr. Johnson indicated that he reviewed 
 
            claimant's medical, vocational and educational history and 
 
            concluded that without re-training efforts, she would be 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            able to perform unskilled and semi-skilled jobs such as 
 
            general clerk, cashier, sales clerk, receptionist and 
 
            telephone solicitor.  The medium salary for these jobs in 
 
            the State of Iowa pay less than $6.82 per hour.  In 
 
            addition, he contacted the Des Moines Area Community College 
 
            to determine the employability and salary levels associated 
 
            with jobs in the horticulture field for graduates with 
 
            degrees in that area.  He reported that the average entry 
 
            level salary is $15,000 per year (Ex. A).
 
            
 
                 Sally Riekena, employer's personnel manager and safety 
 
            coordinator for the past 15 years, also testified at the 
 
            hearing.  She testified that one of her duties involves 
 
            preparing OSHA reports for the U.S. Department of Labor.  
 
            The record in this case contains OSHA logs for the calendar 
 
            years 1988, 1989 and 1990.  The logs show the total number 
 
            of reportable injuries at Furnas which resulted in employee 
 
            lost work days.  Under the category entitled "Disorders 
 
            Associated With Repeated Trauma" 26 cases were reported in 
 
            1988 (Ex. 5a); 41 cases reported in 1989 (Ex. 5b); and, 54 
 
            cases in 1990 (Ex. 5c).
 
            
 
                 When questioned as to why claimant was terminated on 
 
            September 14, 1990, Ms. Riekena testified that claimant felt 
 
            there was no work at the plant she could perform in view of 
 
            her restrictions.
 
            
 
                                conclusions of law
 
            
 
                 Claimant contends she sustained an occupational disease 
 
            as a result of her employment with employer and is entitled 
 
            to industrial disability benefits under Iowa Code Chapter 
 
            85A and case law.  Claimant concedes that the Iowa Supreme 
 
            Court has not addressed the issue of whether cubital tunnel 
 
            syndrome and other disorders generally classified as 
 
            repetitive motion disorders are occupational diseases.  
 
            Defendants argue that claimant sustained a work-related 
 
            injury rather than an occupational disease on January 8, 
 
            1990, which caused temporary and permanent disability.  
 
            Defendants have paid claimant temporary total disability 
 
            benefits, temporary partial disability benefits and 
 
            permanent partial disability benefits for bilateral cubital 
 
            tunnel syndrome based on Dr. Grundberg's impairment ratings.  
 
            Claimant admits that her injury does not extend into the 
 
            body as a whole and if it is found that she sustained an 
 
            injury rather than occupational disease, she has been fully 
 
            compensated by defendants.
 
            
 
                 Section 85A.8 defines occupational diseases as follows:
 
            
 
                   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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 To prove the causation element described in section 
 
            85A.8, claimant must show by a preponderance of the evidence 
 
            (1) the disease is causally related to the exposure to the 
 
            harmful conditions of the field of employment, and (2) the 
 
            harmful conditions must be more prevalent in the employment 
 
            concerned than in everyday life or in other occupations.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            and Frit Industries v. Langenwalter, 443 N.W.2d 88, 90 (Iowa 
 
            App. 1989).
 
            
 
                 Although McSpadden might be read as eliminating the 
 
            arising out of and in the course of requirements, the 
 
            statute clearly retains those elements.  Perhaps the intent 
 
            of the opinion in McSpadden is to emphasize the peculiar 
 
            aspects of occupational disease.  Lawyer & Higgs, Iowa 
 
            Workers' Compensation --  Law and Practice, Chapter 18, 
 
            sections 1-3.
 
            
 
                 It is conceivable that repetitive motion disorders may 
 
            constitute either an injury or an occupational disease 
 
            depending upon the particular facts in the case.  
 
            Accordingly, determinations as to what constitutes an 
 
            occupational disease must be made on a case-by-case basis.
 
            
 
                 In this case,  the record clearly indicates that 
 
            claimant has been diagnosed with bilateral cubital tunnel 
 
            syndrome.(1)  Claimant testified that she had no problem using 
 
            her upper extremities prior to August 1987 when she started 
 
            employment at Furnas Electric.  She alleged no specific 
 
            trauma or injury but thought that her problems arose as a 
 
            result of her work history with employer.  She stated that 
 
            her job as an assembler on the production line required 
 
            repetitive and extensive use of her upper extremities.  She 
 
            testified that she began experiencing symptoms of pain and 
 
            numbness in December 1989 and sought medical treatment in 
 
            January 1990.  After decompression surgery in July 1990, her 
 
            left arm symptoms improved.  She stated that her right arm 
 
            surgery has not produced similar successful results.  She 
 
            testified to a limited residual functional capacity 
 
            including a minimal ability to use her right arm and hand 
 
            for fine and gross manipulations due to pain, numbness and 
 
            weak grip strength.  She testified that she last saw Dr. 
 
            Grundberg in July 1991, and is not under the continuing care 
 
            (1).  Cubital tunnel syndrome is defined as a complex of symp
 
            toms resulting from injury or compression of the ulnar nerve 
 
            at the elbow, with pain and numbness along the ulnar aspect 
 
            of the hand and forearm, and weakness of the hand.  
 
            Dorland's Illustrated Medical Dictionary 26th Edition 
 
            Copyright 1981.
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of any other physician.  She takes over-the-counter 
 
            Ibuprofen for pain.  While receiving unemployment 
 
            compensation benefits she made a superficial job search in 
 
            the Osceola area.  She has not looked for work since 
 
            February 1991, however she participates in a work-study 
 
            program at East Central College and works 10 hours a week as 
 
            an assistant librarian.
 
            
 
                 Claimant has the burden of proof.  She must show that 
 
            her bilateral cubital tunnel syndrome arose out of and in 
 
            the course of employment with employer.  There must be a 
 
            direct causal connection with the employment following as a 
 
            natural incident from an injurious exposure occasioned by 
 
            the nature of the work.  Such condition must be incidental 
 
            to the character of the business, occupation or process in 
 
            which claimant was employed and not independent of the 
 
            employment.  It need not have been foreseen or expected but 
 
            after its contraction it must appear to have its origin in a 
 
            risk connected with the employment and to have resulted from 
 
            that source was an incident and rationale consequence.  Iowa 
 
            Code section 85A.8.
 
            
 
                 Claimant's unrefuted testimony that she was 
 
            asymptomatic prior to working for employer establishes that 
 
            her condition arose out of and in the course of employment 
 
            with employer.  In fact, defendants do not dispute this.
 
            
 
                 To satisfy these requirements, the Iowa Supreme Court 
 
            in McSpadden, stated that claimant must meet two basic 
 
            requirements.  First, she must show that the disease is 
 
            causally related to the exposure to harmful conditions in 
 
            the field of employment in which she was engaged and, 
 
            secondly, that those harmful conditions are more prevalent 
 
            in the employment concerned than in everyday life or in 
 
            other occupations.
 
            
 
                 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 
 
            v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 
 
            N.W.2d 732 (1955).  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 v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965).  See also Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 On January 15, 1990, claimant saw Dr. Fotiabis with com
 
            plaints of elbow pain.  His notes state "[e]lbow pain, 
 
            consider a golfer's elbow type injury, probably from chronic 
 
            overuse such as her work activity."  (Ex. 1a, p. 1)  In view 
 
            of her persistent symptomatology, Dr. Fotiabis referred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant to Dr. Grundberg, a specialist in the arm and upper 
 
            extremities.  Dr. Grundberg reported on March 16, 1990, that 
 
            "[h]er particular problem started at work and therefore I 
 
            think it is worke [sic] related.  The kind of repetitive 
 
            work that she does has been recognized as causing the 
 
            problems described above."  (Ex. 2a, p. 1).  In a notation 
 
            by Dr. Fotiadis dated May 1, 1990, he stated that "[t]he 
 
            orthopedist  and I would agree that the nature of the 
 
            patient's job with it's [sic] specific arm motion and 
 
            activity are aggravating factors.  In addition, this current 
 
            job is likely to continue to aggravate her sympts [sic] and 
 
            potentially worsen her condition and possibly require 
 
            surgery or a potential for disability."  He further stated 
 
            that "[m]y suggestion is that Desiree may perform repetitive 
 
            physical activity only if it is a different assembly 
 
            procedure or a different process that would change the 
 
            motion of her arm and upper extremities."  (Ex. 1a, p. 2)
 
            
 
                 Claimant was put on half days using her right arm for 
 
            full duty and her left arm minimally.  By June 27, 1990, 
 
            claimant began to experience similar symptoms in her right 
 
            arm.  On June 29, 1990, Dr. Grundberg recommended that 
 
            claimant quit her job at Furnas and find something easier to 
 
            do somewhere else (Ex. 2a, pp. 2-3).  After undergoing 
 
            decompression of the left cubital tunnel, Dr. Grundberg 
 
            recommended that she not return to her former job and to 
 
            work in the future on a non-repetitive basis.  He ruled out 
 
            all assembly line work (Ex. 2a, p. 4).
 
            
 
                 Claimant testified that there was no work with employer 
 
            she felt she was able to perform and employer testified that 
 
            there were no jobs at the plant to accommodate claimant's 
 
            restrictions.
 
            
 
                 Claimant has established by a preponderance of the 
 
            evidence that her bilateral cubital tunnel syndrome is 
 
            causally related to her work.  The sustained and repetitive 
 
            use of her arms and hands in building and assembling 
 
            switches as a production worker on employer's assembly line 
 
            was a substantial factor in causing her condition.  Dr. 
 
            Fotiadis and Dr. Grundberg have made the required causal 
 
            connection.  Again, this is not disputed by defendants.  
 
            Therefore, claimant has met the first basic requirement 
 
            imposed by the statute.
 
            
 
                 Claimant must also prove by a preponderance of the 
 
            evidence that the harmful conditions are more prevalent in 
 
            the Furnas workplace than in everyday life or in any other 
 
            occupations.  Proof of the second element will typically 
 
            require a combination of lay and expert testimony.  
 
            Claimant's documentary evidence includes OSHA logs showing 
 
            that other employees in the plant lost work days due to 
 
            reported disorders associated with repeated trauma.  These 
 
            logs indicate that employer had 26 incidents of lost time 
 
            from employment due to repetitive trauma disorders during 
 
            1988, 41 incidents in 1989 and 54 incidents in 1990, out of 
 
            an assembly line work force of approximately 270 employees.  
 
            However, the actual number of employees affected and the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            type of repetitive trauma disorder alleged is not evident 
 
            from the logs introduced into evidence.  Ms. Riekena 
 
            confirmed the existence of programs enacted by the employer 
 
            to study and address the repetitive disorder problem in its 
 
            factory.  However, she denied that this condition was the 
 
            result of a particular hazard or risk peculiar to employer.  
 
            The only medical opinion in this regard is a statement made 
 
            by Dr. Grundberg that "[t]he kind of repetitive work that 
 
            she does has been recognized as causing the problems 
 
            described above."  Claimant produced no other expert 
 
            evidence demonstrating that claimant's manual work which 
 
            required the continuous use of her arms was any different 
 
            than many other factory manual labor or computer 
 
            occupations.
 
            
 
                 Claimant's physical job requirements are not so unique 
 
            as to be characteristic of and peculiar to the business of 
 
            employer.  Muscle use is common to many other employments.  
 
            Claimant worked eight years as a beautician.  This work 
 
            required repetitive use of the hands, arms and shoulders.  
 
            Dr. Grundberg did not identify the kind of work that 
 
            claimant performed with employer and it is unclear as to 
 
            whether he was familiar with the particulars of her job and 
 
            the way it had to be performed.  Dr. Grundberg did not visit 
 
            claimant's work site and claimant called no other witnesses 
 
            from the plant to corroborate her testimony.  Dr. Fotiabis 
 
            and Dr. Grundberg relied upon claimant's statement of her 
 
            medical history and had no reason to believe that she would 
 
            have developed cubital tunnel syndrome other than from her 
 
            employment with employer.  No evidence was produced to show 
 
            that the conditions present at the Furnas factory were 
 
            present in a peculiar or increased degree by comparison with 
 
            everyday life or in other occupations.  Claimant has not met 
 
            her burden of proof in this regard and therefore, has not 
 
            met the threshold requirement of occupational disease.
 
            
 
                 This issue is dispositive of the entire case and 
 
            further analysis is unnecessary..
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing from this proceeding.
 
            
 
                 The parties shall pay their own costs.
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
                                          ______________________________               
 
            JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            5835 Grand Ave
 
            Suite 201
 
            Des Moines  IA  50312
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Helmut A. Mueller
 
            Attorney at Law
 
            RR 5
 
            Osceola  IA  50213
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2203
 
                                               Filed November 12, 1991
 
                                               JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DESIREE SIEFKAS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 944404
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            2203 - Occupational Disease
 
            
 
                 The only issue to be determined in this case is whether 
 
            claimant sustained an occupational disease as defined in 
 
            Iowa Code section 85A.8 (1987) and, if so, the extent of 
 
            permanent disability.  Determination as to what constitutes 
 
            an occupational disease must be made on a case-by-case 
 
            basis.  To prove the causation element described in section 
 
            85A.8, claimant must show by a preponderance of the evidence 
 
            (1) the disease is causally related to the exposure to 
 
            harmful conditions of the field in employment, and (2) the 
 
            harmful conditions must be more prevalent in the employment 
 
            concern than in everyday life or in other occupations.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            and Frit Industries v. Langenwalter, 443 N.W.2d 88, (Iowa 
 
            App. 1989).
 
            
 
                 Although McSpadden might be read as eliminating the 
 
            arising out of and in the course of requirements, the 
 
            statute clearly retains those elements.  Perhaps the intent 
 
            of the opinion in McSpadden is to emphasize the peculiar 
 
            aspects of occupational disease.  Lawyer & Higgs, Iowa 
 
            Workers' Compensation --  Law and Practice, Chapter 18, 
 
            sections 1-3.
 
            
 
                 Expert medical opinion causally relates claimant's 
 
            bilateral cubital tunnel syndrome to her exposure to harmful 
 
            conditions (repetitive and excessive movement of the upper 
 
            extremities) in her field of employment (production assembly 
 
            line worker building pressure switches).  However, claimant 
 
            failed to prove by a preponderance of the evidence that the 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            harmful conditions were more prevalent in her employment 
 
            than in everyday life or in other occupations.  It was found 
 
            that continuous use of the arms and hands is no different in 
 
            many other factory manual labor and computer occupations and 
 
            not so unique as to be characteristic of and peculiar to the 
 
            business of this employer.  Claimant produced no expert 
 
            evidence or corroborating evidence showing the prevalency of 
 
            these conditions with employer when compared to everyday 
 
            life or other occupations.
 
            
 
                 Prior to commencing work with employer in August 1987, 
 
            claimant was a licensed cosmetologist.  She received her 
 
            degree in 1979 and worked consistently in that field until 
 
            she commenced work with employer.  She admitted that the 
 
            work required extensive use of her arms and hands, however, 
 
            she denied any symptoms of upper extremity pain and numbness 
 
            until December 1989.  There is only one statement in the 
 
            record from Dr. Grundberg, claim-ant's treating surgeon, 
 
            which states that:  "The kind of repetitive work that she 
 
            does has been recognized as causing the problems described 
 
            above."  Neither Dr. Grundberg nor any other expert visited 
 
            claimant's work site and it is unclear whether Dr. Grundberg 
 
            was familiar with the particulars of claimant's job or the 
 
            manner and frequency in which it was performed.
 
            
 
                 Since claimant did not meet the threshold requirement 
 
            of occupational disease, the issue of disablement as defined 
 
            in section 85A.4 was not discussed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PETER B. MOORE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 944606
 
            DAVENPORT MUFFLER SHOPS, INC, :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Peter B. 
 
            Moore against Davenport Muffler Shops, Inc., and United 
 
            States Fidelity and Guaranty Company based upon an injury 
 
            that occurred on January 29, 1990.  Claimant seeks 
 
            compensation for healing period and also for permanent 
 
            partial disability in the event that the healing period has 
 
            ended.  There is an issue with regard to whether the injury 
 
            is a scheduled injury of his right foot or leg or whether it 
 
            extends into the body as a whole through his back or a 
 
            psychological condition.  Claimant also seeks to recover the 
 
            expenses of an independent medical examination.  
 
            
 
                 The case was heard at Des Moines, Iowa, on October 29, 
 
            1992.  The record consists of testimony from witnesses and 
 
            joint exhibits 1 through 5, claimant's exhibits 6, 7 & 8 and 
 
            defendants' exhibit A through G and I.  
 
            
 
                 Litigation is also pending between the claimant and the 
 
            employer regarding compliance with federal wage payment 
 
            laws.  The parties, during the course of the hearing, 
 
            decided that they would not litigate the rate issue in this 
 
            case as it might have a preclusive effect on the pending 
 
            federal litigation.  It was determined that in the event 
 
            weekly benefits were awarded by the undersigned that the 
 
            benefits would be paid at the rate of $233.17 per week, the 
 
            rate that has been paid thus far in this case, and that if 
 
            the federal litigation showed the claimant's actual earnings 
 
            entitlement to be different than that upon which the rate 
 
            which has been used was based, that the issue could be 
 
            raised at that time and appropriate adjustments, if any, 
 
            made.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 Peter B. Moore caught the laces of his right boot on a 
 
            spinning wheel on January 29, 1990.  He eventually entered 
 
            into a course of medical care where it was determined that 
 
            he had sustained a fracture of the fourth metatarsal in his 
 
            right foot.   Conservative care was attempted but the 
 
            fracture did not heal.  Surgical fixation of the fracture 
 
            with wires was attempted but was again unsuccessful.  
 
            Finally, through surgical fixation using screws, the 
 
            physicians at the University of Iowa hospitals were able to 
 
            obtain a solid union of the fracture.  
 
            
 
                 The recovery has been compromised, however, by 
 
            development of a traumatic plantar neuroma in the ball of 
 
            claimant's right foot as a result of the original injury and 
 
            surgical procedures which have been performed.  Claimant 
 
            also has a problem with laxity of the lateral ligaments of 
 
            his right foot as a result of the traumatic injury.  
 
            
 
                 Despite the success of the last surgery at obtaining a 
 
            union of the fracture, claimant remains quite symptomatic 
 
            and unable to resume normal activity due to pain that is 
 
            associated with the traumatic plantar neuroma (exhibit 2, 
 
            pages 80 & 81).  One of his treating physicians, Charles L. 
 
            Saltzman, D.O., has rated Peter as having a 24 percent 
 
            impairment of his right lower extremity based upon the 
 
            impairment in his right foot (ex. 2, p. 82).
 
            
 
                 Peter has also been evaluated by Bryan D. Den Hartog, 
 
            M.D., an orthopedic surgeon, who has determined that Peter 
 
            has a neuroma involving the lateral plantar nerve and right 
 
            lateral ankle instability.  Dr. Den Hartog recommended that 
 
            vein conduit surgery be performed in order to re-route the 
 
            end of the plantar nerve into the calf of claimant's right 
 
            leg in order to resolve the painful neuroma situation that 
 
            presently exists.  Dr. Den Hartog also recommended that a 
 
            procedure be performed, at the same time as the nerve 
 
            relocation, in order to stabilize the ligaments of the right 
 
            ankle.  Peter also has a problem with the small toes of his 
 
            right foot clawing.  Dr. Den Hartog initially felt that any 
 
            surgical treatment of the toes should be delayed but in a 
 
            later report indicated that the surgical repair could also 
 
            be performed at the same time as the nerve relocation and 
 
            ligament stabilization procedures.  Dr. Den Hartog felt that 
 
            there was approximately a 70 percent chance of a good result 
 
            from the surgeries which he has recommended.  Upon being 
 
            informed that claimant was suffering from depression he 
 
            recommended that surgery be delayed until after the 
 
            depression had been resolved (ex. 2, pp. 162-165).
 
            
 
                 Claimant was also evaluated by Jerome G. Bashara, M.D.  
 
            Dr. Bashara confirmed the diagnosis of the fractured fourth 
 
            metatarsal, the plantar nerve injury and the injury to 
 
            ligaments in claimant's right ankle which produced 
 
            instability.  Dr. Bashara seemed to concur with the surgery 
 
            recommended by Dr. Den Hartog though he did not expressly 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            address whether or not it should be performed (ex. 7).
 
            
 
                 Claimant's records were evaluated by Mitchell J. Cohen, 
 
            M.D.  Dr. Cohen felt that claimant should be considered 
 
            temporarily partially disabled and recommended surgical 
 
            management for the foot and ankle pain (defendants' ex. G).  
 
            
 
                 During the course of treatment for the foot and ankle 
 
            injury, claimant expressed complaints of pain in his back.  
 
            No particular physical abnormality has been noted other than 
 
            tenderness, spasm and similar symptoms.  Dr. Cohen expressed 
 
            the opinion that claimant had no back injury.  Dr. Salzman 
 
            was unable to relate the back symptoms to the problems with 
 
            claimant's foot (ex. 2, p. 83).  Dr. Bashara reported that 
 
            the back pain was of undetermined etiology but it was 
 
            probably related to claimant's abnormal gait and weight 
 
            bearing pattern following injury to the foot (ex. 7).  
 
            
 
                 On April 22, 1992, claimant presented himself at the 
 
            Iowa Lutheran Hospital emergency room where he was diagnosed 
 
            as having an adjustment disorder or a depression secondary 
 
            to injury (ex. 2, pp. 166 & 167).  He then entered into a 
 
            course of treatment with psychiatrist Michael J. Taylor, 
 
            M.D.  Dr. Taylor has adamantly reported that claimant is 
 
            suffering from a major depressive disorder that is directly 
 
            causally related to the injury of January 19, 1990.  Dr. 
 
            Taylor has also recommended that claimant not undergo 
 
            surgery on his foot until such time as the depression has 
 
            been resolved in order to maximize the chances of a good 
 
            result from the surgery.  Dr. Taylor expects that, with 
 
            appropriate treatment, full recovery can be obtained from 
 
            the depression (ex. 7).  
 
            
 
                 Dr. Cohen reported that no comprehensive psychological 
 
            report was included in the records that he reviewed and he 
 
            found no evidence of a psychiatric disorder other than a 
 
            history of substance abuse (ex. G).
 
            
 
                 The physicians who have been involved in this case seem 
 
            to have little disagreement regarding the right foot and 
 
            ankle injury.  It is found that the injury did produce a 
 
            fracture of the fourth metatarsal of the claimant's right 
 
            foot and also injured the lateral ligaments of the right 
 
            foot and ankle.  A satisfactory union of the fracture has 
 
            now been achieved.  As a result of the trauma and course of 
 
            medical treatment, a plantar neuroma developed in claimant's 
 
            right foot which causes considerable pain when weight is 
 
            placed on the foot.  Claimant has a problem with laxity of 
 
            ligaments of the right foot and ankle.  The problems in the 
 
            right foot are amenable to treatment as recommended by Dr. 
 
            Den Hartog.  
 
            
 
                 As a result of the problem with bearing weight on the 
 
            right foot, claimant has frequently walked using a cane, 
 
            crutches or an abnormal gait.  As indicated by Dr. Bashara, 
 
            the abnormal gait and weight bearing has probably produced 
 
            the symptoms which claimant expresses regarding his back.  
 
            It is common to see back discomfort associated with an 
 
            abnormal gait.  No significant abnormality affecting the 
 
            claimant's back has been identified.  It is found that Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Bashara is correct in that the abnormal gait has produced 
 
            discomfort in claimant's back.  As indicated by the other 
 
            physicians, there is no evidence of any injury, disability 
 
            or permanent impairment affecting claimant's back.  It would 
 
            be expected that once the treatment of the foot has been 
 
            completed that the back complaints should resolve. 
 
            
 
                 With regard to claimant's depressive episode, it is 
 
            found that the assessment made by Dr. Taylor is entitled to 
 
            more weight than that of Dr. Cohen.  Dr. Taylor has examined 
 
            and treated the claimant personally.  Dr. Cohen has only 
 
            reviewed records.  It seems as though Dr. Cohen bases his 
 
            opinion of no psychological injury on the fact that he did 
 
            not see records of a complete psychiatric evaluation.  There 
 
            is nothing in the record that Dr. Cohen requested further 
 
            detailed records from Dr. Taylor with regard to the 
 
            psychiatric condition.  The fact that Dr. Cohen did not 
 
            examine the records or that other records were not provided 
 
            to him does not mean that a proper psychiatric evaluation 
 
            was not conducted.  Dr. Taylor is a well regarded 
 
            psychiatrist.  There is no evidence that he has committed 
 
            malpractice or otherwise treated this claimant 
 
            inappropriately.  It is determined that Dr. Taylor performed 
 
            whatever evaluation was necessary to reach the conclusions 
 
            and opinions that he has provided in his reports.  It is 
 
            therefore found that the injury to claimant's right foot, in 
 
            particular, the enduring painful symptoms despite two 
 
            surgical treatments, was a substantial factor is producing 
 
            the depression which Dr. Taylor diagnosed.  Also, as 
 
            indicated by Dr. Taylor, it is expected that the depressive 
 
            episode will resolve with appropriate treatment.
 
            
 
                 At the time of hearing claimant was undergoing 
 
            treatment for depression and it was anticipated that 
 
            following recovery from the depression, he would then 
 
            undergo surgery to repair the remaining abnormalities in his 
 
            foot as recommended by Dr. Den Hartog or as may be otherwise 
 
            recommended by some other physician depending upon whatever 
 
            events might transpire.  In view of the fact that claimant 
 
            has not been able to resume work, other than an unsuccessful 
 
            trial with the employer, that claimant remains under medical 
 
            treatment for conditions which were caused by the original 
 
            injury, and that further treatment is anticipated, it is 
 
            determined that further significant improvement from the 
 
            injury is anticipated and the claimant is not medically 
 
            capable of returning to employment substantially similar to 
 
            that in which he was engaged at the time of the injury.
 
            
 
                 Vocational consultant Roger Marquardt reported that 
 
            maximum medical improvement needed to be achieved in order 
 
            to begin serious pursuit of vocational placement (ex. 8).
 
            
 
                 In obtaining medical treatment claimant incurred fees 
 
            and expenses at the University of Iowa Hospitals and Clinics 
 
            in the amount of $445 (ex. 6, pp. 1 & 2).  He incurred fees 
 
            with Dr. Taylor in the amount of $850 (ex. 6, p. 4).  
 
            Claimant also incurred fees with Dr. Bashara in the amount 
 
            of $700 (ex. 6, p. 5).  He incurred fees with Roger 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Marquardt, a vocational consultant, in the amount of $500 
 
            (ex. 6, p. 6).  Claimant incurred an expense in the amount 
 
            of $145 in obtaining a report from Dr. Salzman (ex. 6, p. 
 
            2).
 
            
 
                 With regard to the foregoing it is found that the fee 
 
            charged by Dr. Bashara for an independent medical 
 
            examination involving one body part is $475 and that an 
 
            additional charge of $225 is made for each additional body 
 
            party evaluated (attachment to respondents' contentions for 
 
            prehearing report).  It is noted that no physician had 
 
            evaluated impairment of claimant's spine prior to the rating 
 
            from Dr. Bashara.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayeris a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 It is well established by the evidence that claimant 
 
            injured his right foot and that he has not recovered from 
 
            that injury.  He remains under treatment, unable to use the 
 
            foot for the things for which a person normally uses a foot.  
 
            Further surgery is anticipated.  
 
            
 
                 The foot injury is not contested.  The contest in the 
 
            case involves whether the foot injury has somehow affected 
 
            claimant's back or whether it has produced a psychological 
 
            injury.  It has been found that the injury to the foot has 
 
            produced both back complaints and psychological dysfunction.  
 
            Based upon the medical evidence in the record it appears as 
 
            though the back complaints are due to claimant's abnormal 
 
            gait.  There is every reason to believe that they will 
 
            resolve once treatment of the foot has been completed.  
 
            There is no indication that the back complaints are in any 
 
            manner independently disabling.  Claimant's current 
 
            disability exist due to the condition of his right foot, in 
 
            particular, the neuroma.  The laxity of ligaments is a 
 
            lessor problem.  
 
            
 
                 Claimant is also disabled by a major depressive 
 
            episode.  It is well recognized that a traumatically induced 
 
            psychological injury is compensable.  Leffler v. Wilson & 
 
            Co., 320 N.W.2d 634 (Iowa App. 1982);  Dever v Armstrong 
 
            Rubber Co., 170 N.W.2d 455 (Iowa 1969).  The same is true 
 
            when the trauma aggravates a preexisting conditon.  Coughlin 
 
            v. Quinn Wire and Iron Works, 164 N.W.2d 848 (Iowa 1969).  
 
            At the present time it is expected that the depression will 
 
            be a temporary condition for which a full recovery will be 
 
            obtained.  
 
            
 
                 Supreme court precedent has established that a leg 
 
            injury which impairs the nervous system converts the injury 
 
            into the body as a whole which compensates the permanent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            disability industrially rather than as a scheduled injury.  
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).  The current precedent within this agency, however, 
 
            is that an injury to a scheduled member which causes 
 
            permanent psychological disability is compensated under the 
 
            schedule according to the functional impairment of the 
 
            scheduled member and that compensation for the psychological 
 
            disability is included within schedule, even though the 
 
            recovery under the schedule would be the same if there were 
 
            no psychological disability.  Hibbs v. Eaton Corp., file no. 
 
            753666 (App. Dec. March 30, 1990).  The Hibbs decision cites 
 
            Cannon v. Keokuk Steel Castings, file no. 795331 (App. Dec. 
 
            Jan. 27, 1988).  The Cannon case deals with tinnitus and 
 
            concludes that it is included in the schedule for loss of 
 
            hearing, despite the fact that it does not impair the 
 
            hearing.  Another agency case with a similar holding is 
 
            Pilcher v Penick & Ford, file no. 618597 (App. Dec. Oct. 
 
            21, 1987).  None of the agency precedents discuss or 
 
            reconcile their divergence from Barton.  These cases deal 
 
            with permanent disability rather than healing period.  They 
 
            do not limit or relieve defendants from liability for 
 
            treating and paying healing period compensation associated 
 
            with the psychological disorder.
 
            
 
                 Claimant is in a healing period status until such time 
 
            as his overall physical condition warrants that the healing 
 
            period be ended in accordance with section 85.34(1).  It is 
 
            expected, though not absolutely determined, that the healing 
 
            period in this case will end when maximum medical recovery 
 
            has been achieved.  That is not likely to occur until the 
 
            depression is treated to a conclusion of some sort and the 
 
            foot condition is likewise treated to a conclusion.  The 
 
            conditions will be treated to a conclusion when further 
 
            active medical treatment is discontinued either through the 
 
            recommendation of the physician or when the claimant 
 
            declines offered treatment.  It is recognized that it would 
 
            not be provident to have claimant undergo surgery on his 
 
            foot until the depressive episode has been resolved or 
 
            treated to a conclusion.
 
            
 
                 It is therefore determined and concluded that Peter 
 
            Moore's healing period resulting from the January 29, 1990 
 
            injury, has not yet ended.  He is entitled to recover a 
 
            running award of weekly compensation for healing period 
 
            payable at the rate of $233.17.  Defendants are entitled to 
 
            credit for all amounts previously paid that were 
 
            characterized as permanent partial disability compensation 
 
            toward the healing period obligation.  
 
            
 
                 Since claimant remains in a healing period status, the 
 
            nature and extent of his permanent disability cannot yet be 
 
            determined with certainty.  It appears likely as though he 
 
            will have some permanent disability and impairment affecting 
 
            his right foot and perhaps leg.  It appears unlikely that he 
 
            will have any permanent psychological or spinal impairment 
 
            or disability.  Those issues need not and cannot be finally 
 
            determined until the healing period has ended.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 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 treatment claimant received at the University of 
 
            Iowa Hospitals and Clinics was as a result of his foot 
 
            injury.  Defendants are therefore responsible for payment of 
 
            those bills in the amount of $445.  This same is true with 
 
            regard to the expenses incurred with Dr. Taylor in the 
 
            amount of $850.
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are responsible only for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proving the reasonableness of the 
 
            expenses incurred for the examination.  See Schintgen v. 
 
            Economy Fire & Casualty Co., File No. 855298 (App. April 26, 
 
            1991).  Defendants' liability for claimant's injury must be 
 
            established before defendants are obligated to reimburse 
 
            claimant for independent medical examination.  McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Dr. Salzman was an employer-selected physician and he 
 
            provided a rating of permanent impairment.  It is recognized 
 
            that the ultimate extent of impairment might be different 
 
            than that provided by Dr. Salzman since further surgery is a 
 
            possibility.  Nevertheless, the criteria under section 85.39 
 
            has been met and claimant is entitled to recover the costs 
 
            of an evaluation by a physician of his choice, in this case, 
 
            Dr. Bashara.  Since the only part of claimant's body 
 
            addressed by Dr. Salzman with regard to permanent disability 
 
            was the foot or lower extremity, the evaluation from Dr. 
 
            Bashara is likewise limited to the lower extremity.  
 
            Defendants are therefore responsible for paying $475 of the 
 
            charges imposed by Dr. Bashara under the provisions of 
 
            section 85.39.
 
            
 
                 Under the provisions of rule 343 IAC 4.33 claimant is 
 
            entitled to recover costs.  The report from Dr. Salzman in 
 
            the amount of $145 qualifies as a matter of costs as does 
 
            the report from Roger Marquardt.  The costs of such reports 
 
            is limited to $150 in accordance to section 622.72 since 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            these reports are received into evidence in lieu of 
 
            testimony of the witness.  Defendants are therefore 
 
            responsible for payment of $150 toward the charges made by 
 
            Marquardt and for all $145 of the charges from the 
 
            University of Iowa Hospitals for Dr. Salzman's report.  As 
 
            costs, claimant is also entitled to recover his filing fee 
 
            in the amount of $65 and the expenses of a copy of his 
 
            deposition in the amount of $64.90 since the deposition was 
 
            entered into evidence.  Woody v. Machin, 380 N.W.2d 727 
 
            (Iowa 1986).
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Peter B. 
 
            Moore weekly compensation for healing period at the rate of 
 
            two hundred thirty-three and 17/100 dollars ($233.17) per 
 
            week payable commencing January 30, 1990, and running 
 
            through the date of the hearing in this case.  Defendants 
 
            shall continue to pay weekly healing period compensation to 
 
            the claimant until such time as the healing period has ended 
 
            in accordance with the provisions of section 85.34(1).  
 
            Defendants are entitled to a credit for all weekly 
 
            compensation previously paid regardless of whether it was 
 
            characterized as healing period or permanent partial.  Any 
 
            unpaid accrued benefits shall be paid to the claimant in a 
 
            lump sum together with interest pursuant to section 85.30.  
 
            
 
                 It is further ordered that pursuant to section 85.27 
 
            defendants pay claimant's charges with the University of 
 
            Iowa Hospitals and Clinics in the amount of four hundred 
 
            forty-five dollars ($845) and with Dr. Michael J. Taylor in 
 
            the amount of eight hundred fifty dollars ($850).  
 
            Defendants shall receive credit for any amounts previously 
 
            paid toward such charges.
 
            
 
                 It is further ordered that defendants pay claimant the 
 
            sum of four hundred seventy-five dollars ($475) pursuant to 
 
            section 85.39 as reimbursement for the cost of an 
 
            independent medical examination performed by Jerome Bashara, 
 
            M.D.  
 
            
 
                 It is further ordered that defendants pay the costs of 
 
            this action to claimant in the amount of four hundred 
 
            twenty-four and 90/100 dollars ($424.90).  
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 It is further ordered that this case be assigned for 
 
            hearing on the issue of claimant's entitlement to 
 
            compensation for permanent partial disability and any other 
 
            issues which may arise with the date of hearing to be 
 
            subsequent to July 1, 1993.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Ms. Jeanine Gazzo
 
            Attorney at Law
 
            2333 McKinly Ave
 
            Des Moines, Iowa  50321
 
            
 
            Ms. Iris Post
 
            Attorney at Law
 
            2222 Grand Ave
 
            PO Box 10434
 
            Des Moines, Iowa  50306
 
            
 
            Mr. Ralph W. Heninger
 
            Attorney at Law
 
            101 W 2nd St STE 501
 
            Davenport, Iowa  52801
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                             1108.20 2204 1803.1 1802
 
                                             Filed March 23, 1993
 
                                             Michael G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PETER B. MOORE,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 944606
 
            DAVENPORT MUFFLER SHOPS, INC, 
 
                                                A R B I T R A T I O N
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            UNITED STATES FIDELITY & 
 
            GUARANTY COMPANY,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1108.20 2204 1803.1 1802
 
            Claimant, who injured foot, held to still be in healing 
 
            period status.  He was under treatment for depression which 
 
            resulted from the foot injury which had not healed well.  
 
            More surgery is anticipated as soon as depression resolves.
 
            Agency cases holding schedule controls despite existence of 
 
            permanent psychological disability were held to not relieve 
 
            employer from liability to pay healing period and treat a 
 
            mental condition proximately caused by trauma to a scheduled 
 
            member.  They only address permanent partial disability and 
 
            are inconsistent with supreme court precedent.