BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA MOON,    
 
                                                 File No. 946325
 
                 Claimant, 
 
                                                  A P P E A L
 
            vs.       
 
                                                 D E C I S I O N
 
            AT&T,     
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 21, 1993 is affirmed and is adopted as the 
 
            final agency action in this case. 
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of May, 1994.
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Joseph A Nugent
 
            Attorney at Law
 
            1237 73rd St
 
            Des Moines  IA  50311
 
            
 
            Mr Thomas J McCann
 
            Attorney at Law
 
            405 Sixth St  STE 700
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            4000.2
 
                                            Filed May 19, 1994
 
                                            BYRON K. ORTON
 
                 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA MOON,    
 
                                                 File No. 946325
 
                 Claimant, 
 
                                                   A P P E A L
 
            vs.       
 
                                                  D E C I S I O N
 
            AT&T,     
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            4000.2  
 
            Penalty benefits awarded for failure to have medical 
 
            evidence to support a denial of a claim and for paying 
 
            long-term disability benefits in lieu of workers' 
 
            compensation benefits.
 
                      
 
 
            
 
      
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DEBRA MOON,                   :
 
                                          :        File No. 946325
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            AT & T,                       :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Debra 
 
            Moon, claimant, against AT & T, employer, hereinafter 
 
            referred to as the phone company, a self-insured defendant, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on September 18, 1989.  On May 5, 1993, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant is seeking temporary total or healing 
 
            period benefits from September 19, 1989 through the present 
 
            time and defendant agrees that she was not working during 
 
            this time.
 
            
 
                 2.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial 
 
            disability to the body as a whole.
 
            
 
                 3.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $470.50; she was married; and she 
 
            was entitled to 3 exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $296.73 according to the Industrial 
 
            Commissioner's published rate booklet for this injury. 
 
            
 
                 4.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their 
 
            reasonableness and defendant is not offering contrary 
 
            evidence.  The medical bills submitted by claimant at the 
 
            hearing are fair and reasonable and causally connected to 
 
            the medical condition upon which the claim herein is based 
 
            but their causal connection to any work injury remains an 
 
            issue to be decided herein.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II.  The extent of claimant's entitlement to 
 
            disability benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits;
 
            
 
                  IV.  The extent of credit under Iowa Code section 
 
            85.38(2) to which defendant is entitled; and,
 
            
 
                   V.  The extent of claimant's entitlement to penalty 
 
            benefits, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for the phone company from 1979 until 
 
            September 1989 as a telephone operator.  During the last 
 
            several years, she was a long distance operator.  This 
 
            position required her to repetitively use her hands and arms 
 
            to enter and retrieve information on a TV monitor using a 
 
            keyboard in front of her. According to video tapes of the 
 
            console operation and claimant's testimony, this job 
 
            required reaching at or above shoulder level.  Claimant 
 
            explained that the monitor was located above her shoulders 
 
            and she would have to use her fingers to locate and mark 
 
            information on the screen while she talked to customers.
 
            
 
                 In the months before she left her employment, claimant 
 
            began to experience numbness and tingling in her right hand.  
 
            This condition worsened over time and she left her work in 
 
            September 1989 due to her pain.  Claimant was eventually 
 
            diagnosed as suffering form carpal tunnel syndrome and a 
 
            right ganglion cyst by her family physician October 1989.  
 
            Claimant was referred to an orthopedic surgeon, Scott Neff, 
 
            D.O., who performed a surgical release.  Claimant initially 
 
            improved but upon new complaints of numbness and tingling in 
 
            the forearm a few months later, Dr. Neff referred claimant 
 
            to Lawrence Rettenmaier, M.D., a specialist in rheumatology, 
 
            who ruled out arthritis and diagnosed thoracic outlet 
 
            syndrome, a condition in which tendons and nerves centered 
 
            in one area in the chest area become inflamed.  Dr. 
 
            Rettenmaier has treated claimant since that time for these 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            conditions which has now developed into chronic pain 
 
            syndrome rendering claimant totally disabled.  Claimant has 
 
            been unable to complete the physical therapy ordered by Dr. 
 
            Rettenmaier because defendant refused to pay for such 
 
            treatment.  Dr. Rettenmaier opines that claimant's carpal 
 
            tunnel, thoracic outlet and her chronic pain syndromes are 
 
            work related due to claimant's repetitive hand movements in 
 
            her job at the phone company.  Dr. Neff agrees with the 
 
            thoracic outlet syndrome diagnosis but states that only the 
 
            carpal tunnel is work related because claimant did not lift 
 
            or reach at or above her shoulders.  Two other experts were 
 
            hired by claimant and defendant.  The one hired by claimant 
 
            stated the injury was work related and the one hired by 
 
            defendant disagreed.  Both of these opinions by non-treating 
 
            physicians were not given much weight.  Defendant argues 
 
            that Dr. Neff should be given greater weight because of his 
 
            specialty.  However, it was Dr. Neff who referred claimant 
 
            to Dr. Rettenmaier.  Also, this deputy commissioner believes 
 
            claimant and finds that she did in fact lift or reach at or 
 
            above shoulder level on a repetitive basis. Therefore, Dr. 
 
            Neff's history is incorrect and the views of Dr. Rettenmaier 
 
            are viewed as most credible.  Therefore, it is found that 
 
            claimant suffered a work injury on September 18, 1989, the 
 
            time she left her employment and that the injury consists of 
 
            the conditions diagnosed by Dr. Rettenmaier.
 
            
 
                 Based again on Dr. Rettenmaier's views, it is found 
 
            that claimant has not reached maximum healing because she 
 
            has not received the physical therapy treatment he 
 
            recommends.  As claimant is expected to improve with 
 
            treatment, no findings of permanency can be made at this 
 
            juncture.
 
            
 
                 As claimant is seeking penalty benefits, the 
 
            reasonableness of defendant's conduct must be examined.  The 
 
            defense has consistently denied liability for any injury and 
 
            has not paid any compensation benefits to date.  However, 
 
            defendant has a group medical and long-term disability plan 
 
            which has paid claimant benefits although not as much as she 
 
            would have received from workers' compensation.  As there 
 
            has never been any dispute or evidence to suggest that the 
 
            carpal tunnel syndrome was anything other than a work 
 
            injury, defendant's actions in denying the claimant and 
 
            providing other benefits than workers' compensation is 
 
            unreasonable.  Also, although Dr. Neff stated in March 1990, 
 
            when he ended treatment of claimant, that her thoracic 
 
            outlet syndrome was not related to the ganglion cyst 
 
            problem, he did not opine that the condition was not work 
 
            related until his deposition for this litigation in March 
 
            1993.  However, claimant's family physician and Dr. 
 
            Rettenmaier both opined that the claimant's condition was 
 
            work related during the time of their treatment.  A denial 
 
            of a claim without a supportive medical opinion when 
 
            treating physicians opine that the condition is work related 
 
            is unreasonable.  The maximum penalty should be imposed for 
 
            such conduct.  
 
            
 
                 The parties stipulated that defendant is entitled to 
 
            credit for the long-term  disability and the group health 
 
            insurance benefits paid.  The weekly stipulated rate of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            compensation is $296.73.  Claimant was paid $289.51 per week 
 
            through September 24, 1990 according to defendant's exhibit 
 
            10 and $82.16 per week though May 31, 1993 from claimant's 
 
            exhibit 13.  Also from claimant's exhibit 13, it is found 
 
            that from May 31, 1992 to the present, claimant received 
 
            $85.08 per week which is the monthly benefit divided by 4.2 
 
            weeks.
 
            
 
                 As the conditions for which the treatment expenses were 
 
            incurred are found work related, the requested expenses in 
 
            claimant's exhibit 4 are all found work related.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury arising out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See generally, Cedar Rapids, 
 
            Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe 
 
            v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments. A work connected injury which 
 
            more than slightly aggravates the condition is considered to 
 
            be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            by pain to give up his job.
 
            
 
                 In the case sub judice, the injury was cumulative and 
 
            the date of injury found was when the claimant left work.   
 
            
 
                  II.  Claimant is entitled to weekly benefits for 
 
            temporary total disability benefits or healing period under 
 
            Iowa Code section 85.33 and 34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning to substantially similar work to the 
 
            work she was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.
 
            
 
                 It was found that claimant has not reached maximum 
 
            healing due to refusal of defendant to provide the treatment 
 
            recommended by her treating physician.  Claimant is entitled 
 
            to a running award of temporary total benefits until she 
 
            reaches maximum healing. 
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            order of reimbursement if she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, the parties stipulated that all of 
 
            the requested expenses were causally related to the 
 
            conditions alleged to be work related herein.  As these 
 
            conditions have been found to be work related the expenses 
 
            were found work related.  Therefore, claimant is entitled to 
 
            these expenses.
 
            
 
                  IV.  With reference to entitlement to credit under 
 
            85.38(2), Defendant is allowed to take whatever credit it 
 
            believes is appropriate under Iowa code section 85.38(2) and 
 
            if claimant believes that the credit taken is improper, the 
 
            claimant may petition the agency for relief.  Presswood v. 
 
            Iowa Beef Processors, Case No. 735442 (Appeal Decision 
 
            1986).  However, employer is entitled to a credit for 
 
            long-term disability benefits paid, less any tax deductions 
 
            from those payments.  West v. O'Bryan Bros., File No. 
 
            8904094 (Appeal Dec., March 17, 1993).  Knopp v. William 
 
            Brown Co., (Appeal Dec., June 4, 1993).
 
            
 
                  V. Claimant seeks additional weekly benefits under 
 
            Iowa Code section 86.13, unnumbered last paragraph.  That 
 
            provision states that if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse, the industrial commissioner shall 
 
            award extra weekly benefits in an amount not to exceed 50 
 
            percent of the amount of benefits that were unreasonably 
 
            delayed or denied.  Defendants may deny or delay the payment 
 
            of benefits only when the claim is fairly debatable.  Seydel 
 
            v. U of I Physical Plant, (Appeal Dec., November 1, 1989).  
 
            When the claim is "fairly debatable, the insurer is entitled 
 
            to debate it, whether the debate concerns a matter of fact 
 
            or law."  The Supreme Court recently has clarified the 
 
            grounds necessary to impose a section 86.13 penalty.
 
            
 
                 In the recent case of Boylan v. American Motorists Ins. 
 
            Co., No. 250/91-1520, Iowa Supreme Court, filed September 
 
            23, 1992, the court stated as follows:
 
            
 
                 We conclude that it is unlikely that the 
 
                 legislature intended the penalty provision in 
 
                 section 86.13 to be the sole remedy for all types 
 
                 of wrongful conduct by carriers with respect to 
 
                 administration of workers' compensation benefits.  
 
                 By its terms, it applies only to delay in 
 
                 commencement or termination of benefits. It 
 
                 contemplates negligent conduct rather than the 
 
                 willful or reckless acts that are required to 
 
                 establish a cause of action under Dolan. 
 
            
 
                 (emphasis added)
 
            
 
                 Consequently, not only bad faith but also negligent 
 
            conduct can invoke the penalty provisions of section 86.13.  
 
            In reviewing the propriety of defendant's actions, Iowa Code 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            section 507B.4(9) lists uniform unfair settlement claims 
 
            practices for insurance companies.  This listing is useful 
 
            as a statement of public policy to identify the types of 
 
            claim settlement practices that should be viewed 
 
            unreasonable.  Failing to promptly and fully investigate a 
 
            claim and to make claimant's institute litigation to secure 
 
            benefits are two types of unfair claims practices in this 
 
            listing.
 
            
 
                 Therefore, Iowa Code section 86.13, as now interpreted 
 
            by Boylan, creates an affirmative duty for workers' 
 
            compensation insurance carriers and self-insureds to act 
 
            reasonably once a claim is filed.  Acting reasonably means 
 
            to fully and fairly investigate a claim, not to stand back 
 
            and deny a claim simply because they wish to deny a claim.
 
            
 
                 Making claimant wait as long as possible for his money 
 
            regardless of medical evidence and to force claimant into 
 
            litigation to soften a claimant up for settlement is 
 
            unreasonable conduct entitling claimant to penalty benefits.  
 
            Hartl v. Quaker Oats Company, File No. 931120, (Appeal 
 
            Decision, July 22, 1993).  Failure to have a medical opinion 
 
            to support a denial of a claim may also justify an award of 
 
            penalty benefits when claimant's physician has opined in 
 
            favor of claimant even if an opinion supportive of denial is 
 
            later obtained.  Turner v. Louis Rich Company, File No. 
 
            860345, Appeal Decision, June 5, 1991.  Paying long-term 
 
            disability benefits which are less than worker's 
 
            compensation benefits in a case which was not fairly 
 
            debatable is unreasonable and may justify an award of 
 
            penalty benefits.  Wheels v. AT & T, File No. 936967, 
 
            (Appeal Decision, June 30, 1993).
 
            
 
                 In the case sub judice, an award of penalty benefits is 
 
            justified on several grounds.  An inadequate investigation 
 
            was made before denying liability.  There was no evidence to 
 
            support the denial of liability for carpal tunnel syndrome 
 
            and only long-term disability benefits were paid to 
 
            claimant.  Due to length of the unreasonable conduct and the 
 
            multiple nature of the violations, a maximum penalty of 50 
 
            percent is justified and will be imposed.  A specific 
 
            monetary amount of penalty for each week cannot be made as 
 
            the penalty will be the difference between the compensation 
 
            rate and amounts received as net wages, after payroll taxes.  
 
            This must be computed by the parties and if this cannot be 
 
            done within 20 days of the date of the filing of this 
 
            decision, the claimant will have to move for a second 
 
            hearing to determine the penalty amount.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant temporary total 
 
            disability or healing period benefits from September 18, 
 
            1989 to the present and such payments shall continue for an 
 
            indefinite time into the future until the conditions are met 
 
            for ending such benefits as set forth in Iowa Code section 
 
            85.33(1) or 85.34(1). 
 
            
 
                 2.  Defendant shall pay the medical expenses listed in 
 
            claimant's exhibit 4.  Claimant shall be reimbursed for any 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 3.  Defendant is ordered to provide whatever care and 
 
            treatment, including all tests and procedures, deemed 
 
            necessary by Lawrence Rettenmaier, M.D., who shall be 
 
            designated as claimant's treating physician.
 
            
 
                 4.  Defendant shall pay a penalty on each week of the 
 
            entitlement to benefits to date consisting of 50 percent of 
 
            the difference between the weekly rate of compensation and 
 
            the net weekly amounts of long-term disability payments 
 
            received after taxes.
 
            
 
                 5.  Defendant shall pay accrued weekly and penalty 
 
            benefits in a lump sum and shall receive credit against this 
 
            award for all benefits previously paid.
 
            
 
                 6.  Defendant shall receive credit for previous 
 
            payments of benefits under a non-occupational group 
 
            insurance plan, if applicable and appropriate under Iowa 
 
            Code section 85.38(2), less any tax deductions from those 
 
            payments.
 
            
 
                 7.  Defendant shall pay interest on weekly  benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 8.  Defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 9.  Defendant shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Joseph A. Nugent
 
            Attorney at Law
 
            1239 73rd Street
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Thomas J. McCann
 
            Attorney at Law
 
            405 Sixth Street  STE 700
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           4000.2
 
                                           Filed September 21, 1993
 
                                           LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBE MOON,     
 
                                             File No. 946325
 
                 Claimant, 
 
                                          A R B I T R A T I O N
 
            vs.       
 
                                             D E C I S I O N
 
            AT&T,     
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            4000.2  
 
            Penalty benefits awarded for failure to have medical 
 
            evidence to support a denial of a claim and for paying 
 
            long-term disability benefits in lieu of workers' 
 
            compensation benefits.
 
                      
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            RITA SIEVERDING,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                    File No. 946365
 
            JOHN MORRELL & CO., 
 
                                                     A P P E A L
 
                 Employer, 
 
                                                    D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE 
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed December 31, 1991 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Claimant attempts to raise for the first time on appeal the 
 
            issue of whether discovery requirements were correct.  
 
            Claimant did not raise the issue before the presiding deputy 
 
            (see e.g., the prehearing report dated November 6, 1991) and 
 
            the issue will not be considered on appeal.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                         ________________________________
 
                                                 BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa 51102
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 9999
 
                                                 Filed June 30, 1992
 
                                                 Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RITA SIEVERDING,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 946365
 
            JOHN MORRELL & CO., 
 
                                                     A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE 
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed December 31, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RITA SIEVERDING,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 946365
 
                                          :
 
            JOHN MORRELL & CO.,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Rita Sieverding, against her employer, John 
 
            Morrell & Company, and its insurance carrier, National Union 
 
            Fire Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of an injury 
 
            sustained on July 12, 1989.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner at 
 
            Sioux City, Iowa, on November 7, 1991.  A first report of 
 
            injury has been filed.
 
            
 
                 The record consists of joint exhibits 1 through 48 and 
 
            claimant's exhibit 49 as identified on appropriate exhibit 
 
            lists as well as of the testimony of claimant and of Patrick 
 
            Luse, D.C.
 
            
 
                                      issues
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulations of the parties 
 
            at hearing, the parties have stipulated that claimant did 
 
            receive an injury which arose out of and in the course of 
 
            her employment on July 12, 1989; that a causal relationship 
 
            exists between such injury and temporary total or healing 
 
            period disability; and, that claimant has appropriately 
 
            received temporary total disability benefits from March 24, 
 
            1990, through October 14, 1990, and that claimant has 
 
            appropriately received temporary partial disability benefits 
 
            from October 15, 1990, through November 18, 1990.  The 
 
            parties have further stipulated that claimant was married 
 
            and entitled to four exemptions at the time of her injury 
 
            and had a gross weekly wage of $376.33, entitling her to a 
 
            weekly rate of compensation of $247.90.
 
            
 
                 Issues remaining to be decided are:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether a causal relationship exists between 
 
            claimant's injury and claimed permanent partial disability;
 
            
 
                 2.  The nature and extent of any benefit entitlement;
 
            
 
                 3.  Whether claimant is entitled to payment of the 
 
            costs of an examination under section 85.39; and,
 
            
 
                 4.  Whether a penalty shall be imposed upon defendants 
 
            for unreasonable denial or delay in commencement of benefits 
 
            under section 86.13 unnumbered paragraph 4.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant was born on November 14, 1958.  She has 
 
            completed the ninth grade and has received a GED.  She 
 
            undertook a course in golf course management at Western Iowa 
 
            Technical College, but worked in that field for only one 
 
            month.  Her work history is in either the packing industry 
 
            or in unskilled essentially entry-level positions.
 
            
 
                 Claimant began work at John Morrell in 1984.  On July 
 
            12, 1989, claimant started to fall forward while walking on 
 
            steps.  She "flung" herself backwards in order to prevent a 
 
            fall, and in the process jammed her left hip.  Claimant 
 
            reported initially having right leg pain and then having 
 
            increasing pain on the left side.  She has subsequently had 
 
            complaints of right groin discomfort, left hip discomfort, 
 
            headache and lumbar and cervical back pain.  Claimant had 
 
            previously had an automobile accident on March 23, 1981, 
 
            after which she experienced neck and shoulder pain.  
 
            Claimant characterized such as neck and back pain at hearing 
 
            and reported that she had "no problems" after seeing the 
 
            doctor a few times.
 
            
 
                 Kevin J. Liudahl, M.D., referred claimant to Quentin J. 
 
            Durward, M.D., who referred claimant to Leonel H. Herrera, 
 
            M.D.  Dr. Herrera released claimant to return to temporary 
 
            partial work status and subsequently to full work status.  
 
            Claimant reported that she remains restricted as to bending 
 
            and squatting.  The medical records do not reflect those 
 
            restrictions, however.  Claimant currently works scaling 
 
            products, that is, weighing the product and labeling the 
 
            product with its name and weight.  Claimant's current wage 
 
            equals her wage at injury.  Claimant reports that co-workers 
 
            help her with heavy lifting and that her supervisor has 
 
            helped her as well.   Claimant reports that she can no 
 
            longer bowl, play volleyball, garden, or run.  She reported 
 
            that her daughter vacuums, makes the bed, and carries 
 
            laundry.  Claimant indicated she is unable to sit or stand 
 
            for long periods.  Claimant has made only one visit to the 
 
            nursing station in 1991; that visit occurred after she 
 
            lifted a basket of "tenders."  Claimant generally stands at 
 
            her current job, but does have a table available on which 
 
            she can sit while the product is changed.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Kevin J. Liudahl, M.D., ordered an MRI of claimant's 
 
            lumbar spine.  James C. Beeler, M.D., interpreted an MRI of 
 
            May 7, 1990, as showing bulging of the annulus fibrosis at 
 
            L4-5 and minimal bulging at L5-S1.  Dr. Beeler, on August 
 
            24, 1990, reported that the MRI showed a small focus of 
 
            increased T2 signal intensity in the posterior midline 
 
            annulus at the L4-5 level.  He stated that recent literature 
 
            had suggested that finding might represent an anterior 
 
            annular tear, unassociated with herniation at that time.  An 
 
            EMG study was interpreted as positive for chronic left L4-5 
 
            radiculopathy.
 
            
 
                 Quentin J. Durward, M.D., a neurosurgeon, examined 
 
            claimant on May 21, 1990.  Her neurological exam was normal.  
 
            Claimant had marked tenderness over the left greater 
 
            trochanter and posterior hip joint area in addition to the 
 
            sciatic notch.  She had limitation of straight leg raising 
 
            at 70 degrees not relieved by flexing the knee.  Knee and 
 
            ankle reflexes were symmetric at 2+.  Claimant flexed 
 
            forward about 40 degrees and had poor curve reversal.  There 
 
            was some blunting of pin in the dorsum of the left foot.  
 
            Power examination was normal.
 
            
 
                 Dr. Durward again saw claimant on August 22, 1990.  She 
 
            then was markedly tender in the greater trochanter on the 
 
            left side and had unrestricted leg raising but for lateral 
 
            hip pain at 90 degrees on the left.  She forward flexed to 
 
            80 degrees with excellent curve reversal.  She extended 
 
            well.  Claimant had undergone physical therapy and epidural 
 
            steroid injections between the May and August examinations.  
 
            Dr. Durward advised a myelogram.  Dr. Durward interpreted 
 
            the myelogram as showing a very mild bulge at the L4-5 disc 
 
            without significant nerve root compression.  Myelogram of 
 
            the neck was normal.  The doctor opined that claimant had 
 
            left trochanteric bursitis and chronic back and neck pain 
 
            syndrome with radicular symptoms of indeterminate etiology.
 
            
 
                 Dr. Durward referred claimant to Dr. Herrera, a 
 
            neurologist, for isokinetic rehabilitation.
 
            
 
                 On September 27, 1990, Dr. Herrera opined that claimant 
 
            would not have permanent partial "disability."  On December 
 
            18, 1990, Dr. Herrera reported that claimant's chronic L5 
 
            radiculopathy was improved and released claimant from his 
 
            care to return on a PRN basis.  Dr. Herrera recommended that 
 
            claimant continue with a 15-pound lifting restriction for 
 
            six weeks, then increase her lifting restriction to 25 
 
            pounds.
 
            
 
                 Drs. Liudahl and Durward related claimant's back and 
 
            hip pain to her work injury at John Morrell.  Neither 
 
            physician assigned any permanent partial impairment rating, 
 
            however.  The record does not reflect that either doctor was 
 
            aware of claimant's earlier automobile accident.
 
            
 
                 Joel T. Cotton, M.D., a neurologist examined claimant 
 
            initially on November 20, 1990, and reviewed the record from 
 
            previous "examiners," apparently records of previous 
 
            physicians.  He found claimant had normal strength in her 
 
            arms and her legs as well as normal sensation in her hands 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            and feet.  Straight leg raising was negative to 90 degrees 
 
            bilaterally in the seated position.  Movement of the right 
 
            hip was unrestricted and accompanied by complaint.  There 
 
            was some inconsistent complaint of left hip pain with 
 
            flexion and rotation.  Lateral bending and extension of the 
 
            low back were judged to be normal.  Claimant had 
 
            unrestricted movement of the neck unaccompanied by 
 
            subjective complaints of pain.  Claimant reported tenderness 
 
            on palpation over the left hip laterally.  Dr. Cotton could 
 
            not substantiate neurological injury to claimant's neck, low 
 
            back or cervical or lumbar nerve roots.  He reported no 
 
            neurological reason existed for claimant not to return to 
 
            her previous, usual and customary activities without 
 
            restriction.  Dr. Cotton did not agree that claimant's nerve 
 
            and muscle study, that is, her EMG and nerve conduction 
 
            studies of May 7, 1990, were consistent with a subacute L5 
 
            radiculopathy.  He opined that the negative myelogram 
 
            confirmed the lack of any nerve root injury.  He opined that 
 
            any previous suspected "'chronic left L5 radiculopathy'" was 
 
            no longer present and that neither claimant's current 
 
            symptoms nor her neurological examination documented a 
 
            residual injury affecting either the spine or lumbar nerve 
 
            roots.  Dr. Cotton is a board-certified neurologist.  He is 
 
            also board certified in electrodiagnostic medicine, 
 
            specifically in EMG.
 
            
 
                 Patrick Luse, D.C., initially examined claimant on 
 
            April 23, 1991.  Claimant subsequently has undergone 
 
            chiropractic treatment with Dr. Luse.  Dr. Luse's diagnosis 
 
            was of chronic lumbar sprain with hypomobility and 
 
            radiculitis; chronic left trochanteric bursitis; and, 
 
            chronic cervical sprain.  Dr. Luse opined that claimant did 
 
            receive an injury as a result of her July 12, 1989, work 
 
            incident.  He rated claimant's permanent partial impairment 
 
            as follows:
 
            
 
                 IMPAIRMENT RATING: (Rating for permanent physical
 
                                    impairment
 
            
 
                 Sensory impairment rating:
 
                 L5 nerve 5 x 10% (grade) = 1% impairment to extremity
 
            
 
                 Motor impairment rating:
 
                 L5 nerve 37 x 5% (grade) = 2% impairment to extremity
 
            
 
                 Range of Motion Evaluation:  (Given in degrees)
 
            
 
                 Dorsal-Lumbar Spine
 
                 Flexion                      75 degrees = 0%
 
                 Extension                    15 degrees = 3%
 
                 Left lateral flexion         15 degrees = 2%
 
                 Right lateral flexion        20 degrees = 1%
 
            
 
                 Other
 
            
 
                 Unoperated with medically documented injury and a
 
                 minimum of six months medically documented pain,
 
                 recurrent muscle spasms or rigidity associated with
 
                 none-to-minimal degenerative changes on structural
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 tests for the lumbar spine = 5% impairment to the whole
 
                 person.
 
            
 
                 SUMMARY
 
            
 
                 Total impairment to the whole person = 10%.
 
            
 
                 Dr. Luse reported that his standard for muscle grades 
 
            was the Manual of Orthopedic Surgery, American Orthopedic 
 
            Association, and the standard for other values was the 
 
            Guides to the Evaluation of Permanent Impairment, American 
 
            Medical Association, Third Edition.
 
            
 
                 Dr. Luse reported that he had had Jerry Newman, a 
 
            physical therapist, review the report of the EMG of May 7, 
 
            1990.  The doctor stated that Newman felt the EMG was 
 
            definitely an "'abnormal EMG' and 'suggestive of a lesion' 
 
            and consistent with subacute L5 radiculopathy."
 
            
 
                 Dr. Luse appeared at hearing and testified as regards 
 
            his evaluation and measurement methods and instruments.  Dr. 
 
            Luse stated that his permanent partial impairment rating did 
 
            not include claimant's neck or hip complaints, but only 
 
            complaints related to the lumbar spine.  Claimant's balance 
 
            with Dr. Luse for evaluation is $300.
 
            
 
                 Dr. Cotton re-evaluated claimant on September 10, 1991.  
 
            A repeat EMG was performed.  Dr. Cotton interpreted that EMG 
 
            as entirely normal showing no evidence of past or present 
 
            nerve damage and showing nothing indicative of past or 
 
            present L5 radiculopathy.  Dr. Cotton disagreed with Dr. 
 
            Luse's findings reporting that range of motion of claimant's 
 
            spine as of that date was normal with unrestricted lateral 
 
            flexion both towards the left and right; that flexion in the 
 
            standing position was approximately 80 degrees and that 
 
            straight leg raising again was performed in the seated 
 
            position to 90 degrees easily.  Evidence of impairment of 
 
            lumbar or cervical range of motion was present.  The doctor 
 
            opined to a reasonable degree of medical probability that 
 
            claimant had no permanent partial impairment as a result of 
 
            limitation of motion in the cervical or dorsal lumbar spine.  
 
            The doctor then stated:
 
            
 
                    There is no evidence that this individual has 
 
                 any permanent partial impairment as the result of 
 
                 medically documented injury and a minimum of six 
 
                 months of pain for which she was given a five 
 
                 percent impairment to the whole person.  That 
 
                 impairment according to Page 73, Table 49, of the 
 
                 Third Edition of the American Medical Association 
 
                 Guides to the Evaluation of Permanent Impairment 
 
                 is for "impairments due to specific disorders of 
 
                 the spine.["]  There is no evidence whatsoever at 
 
                 the time of today's examination that this 
 
                 individual has any past or present injury to the 
 
                 area of the spine.  This includes the 
 
                 intervertebral disks as well as the other soft 
 
                 tissues associated with the spine.  There is no 
 
                 pain or tenderness over the lumbar or dorsal 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 spine, there is unrestricted movement of the 
 
                 lumbar spine, needle electrode examination (EMG) 
 
                 of the lumbar paraspinous muscles at the levels of 
 
                 L3 through S1 was normal, and she is not found to 
 
                 have any "muscle spasm or rigidity".  It is 
 
                 therefore my opinion based upon a reasonable 
 
                 degree of medical probability that this individual 
 
                 has not suffered any permanent partial impairment 
 
                 or subsequent disability to her spine according to 
 
                 the Third Edition of the American Medical 
 
                 Association Guides to the Evaluation of Permanent 
 
                 Impairment, Third Edition.
 
            
 
            (Joint exhibit 46, page 4).
 
            
 
                 Dr. Cotton opined that claimant could perform all usual 
 
            and customary activities without restrictions and did not 
 
            require any additional appreciable medical attention for her 
 
            complaints.
 
            
 
                                conclusions of law
 
            
 
                 Our first concern is whether claimant has shown a 
 
            causal relationship between her injury and claimed permanent 
 
            partial disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Drs. Liudahl and Durward related claimant's back and 
 
            hip pain to her work injury.  Neither of those physicians 
 
            has rendered a permanency rating, or otherwise indicated 
 
            that claimant's condition would result in permanent 
 
            impairment, however.  Dr. Herrera expressly opined that 
 
            claimant's condition would not result in a permanent partial 
 
            [impairment].  Dr. Cotton has indicated that claimant has no 
 
            permanent impairment on account of her work condition.  Dr. 
 
            Luse has opined that claimant has a permanent partial 
 
            impairment of 10 percent of the body as a whole, which he 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            attributes wholly to her lumbar spine condition.  Dr. Cotton 
 
            expressly disagrees with Dr. Luse and has interpreted both 
 
            the initial EMG of May 7, 1990, and the subsequent EMG of 
 
            September 10, 1991, as normal.  Such is contrary to the 
 
            opinions regarding the EMG on which Dr. Luse largely bases 
 
            his impairment rating.  Dr. Cotton is board certified in 
 
            electrodiagnostic medicine, that is, the use of EMG.  For 
 
            that reason, we defer to Dr. Cotton's opinion in this 
 
            regard.  Hence, claimant has not preponderated in 
 
            establishing a causal relationship between her alleged work 
 
            injury and any permanent partial impairment and subsequent 
 
            disability.
 
            
 
                 As claimant has not preponderated on that issue, we 
 
            need not reach the issue of any permanent benefit 
 
            entitlement.  We note that claimant continues to work for 
 
            the employer and that claimant herself testified that the 
 
            employer accommodates her.  Given such, any loss of earning 
 
            capacity, had such been appropriately awarded under the 
 
            record presented, would have been minimal.
 
            
 
                 As claimant has not prevailed in establishing causation 
 
            to permanent partial disability and as the parties agree 
 
            that defendants paid, apparently, timely, all temporary 
 
            total disability and temporary partial disability to which 
 
            claimant was entitled, claimant's request of an assessment 
 
            of additional benefits under section 86.13, unnumbered 
 
            paragraph 4, is no longer viable.
 
            
 
                 Claimant also requests payment for Dr. Luse's 
 
            examination under section 85.39.  Section 85.39, unnumbered 
 
            paragraph 2, provides, in relevant part:
 
            
 
                 If an evaluation of permanent disability has been 
 
                 made by a physician retained by the employer and 
 
                 the employee believes this evaluation to be too 
 
                 low, the employee shall, . . . be reimbursed by 
 
                 the employer the reasonable fee for a subsequent 
 
                 examination by a physician of the employee's own 
 
                 choice, . . .
 
            
 
                 Dr. Cotton evaluated claimant at defendants' request.  
 
            Dr. Cotton opined that claimant had no permanency.  An 
 
            evaluation with subsequent opinion of no permanency equals a 
 
            rating of permanency.  See Coble v. Metromedia, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            71 (1979).  Claimant therefore is entitled to payment for 
 
            the cost of evaluation with Dr. Luse in the amount of $300.
 
            
 
                           
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take no further weekly compensation benefits 
 
            from this proceeding.
 
            
 
                 Defendants pay claimant costs of an independent 
 
            evaluation with Patrick Luse, D.C., in the amount of three 
 
            hundred and 00/100 dollars ($300.00).
 
            
 
                 Defendants and claimant pay equally the costs of this 
 
            proceeding pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants file claim activity reports as requested by 
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           1803; 2600; 2502
 
                           Filed December 31, 1991
 
                           HELENJEAN M. WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RITA SIEVERDING,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 946365
 
                                          :
 
            JOHN MORRELL & CO.,           :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 2600
 
            Opinion of medical doctor board certified in neurology and 
 
            electrodiagnostic medicine accepted over that of 
 
            chiropractic physician.  No permanent partial disability 
 
            impairment.
 
            
 
            2502
 
            Prior evaluation with finding of no permanent partial 
 
            disability impairment sufficient to entitle claimant to 
 
            reimbursement for subsequent evaluation.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            LYLE SCHWERY,                 :      
 
                                          :
 
                 Claimant,                :      File No.  946402
 
                                          :
 
            vs.                           :    A R B I T R A T I O N   
 
                                          :      
 
            CITY OF DES MOINES,           :       D E C I S I O N
 
                                          :    
 
                 Employer,                :
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Lyle 
 
            Schwery, claimant, against the City of Des Moines, employer, 
 
            hereinafter referred to as the City, a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on January 27, 1990.  On September 8, 
 
            1992, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.      
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On January 27, 1990, claimant received an injury 
 
            arising out of and in the course of employment with the 
 
            City.
 
            
 
                 2.  Claimant is entitled to healing period benefits 
 
            from January 28, 1990 through February 1, 1990, and from May 
 
            23, 1990 through July 17, 1990.
 
            
 
                 3. The injury was a cause of permanent industrial 
 
            disability to the body as a whole.
 
            
 
                 4.  Permanent partial disability benefits shall begin 
 
            as of July 18, 1990.
 
            
 
                 5.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $508.12; he was married; and, he was 
 
            entitled to five exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $327.13 according to the Industrial 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Commissioner's published rate booklet for this injury. 
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendant.  
 
            
 
                                       ISSUE
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to permanent disability benefits.
 
                 
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant placed claimant's credibility at issue during 
 
            cross examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant, age 42, has worked for the City since July 
 
            1983 and continues to do so at the present time.  At the 
 
            time of the work injury herein, he was a police radio 
 
            dispatcher.  This job required regular use of his arms and 
 
            hands and some overhead reaching to operate equipment and 
 
            grab reference materials and books located on shelves in the 
 
            work area.
 
            
 
                 On January 27, 1990, claimant injured his low back, 
 
            right wrist, left knee, right ankle and right shoulder when 
 
            he slipped on ice in the City's parking lot on his way to 
 
            work.  Claimant first sought medical treatment from his 
 
            family doctor but was referred to the City's employee health 
 
            clinic because the injury occurred at work.  Dr. Straubinger 
 
            (first name unknown) at this clinic treated claimant 
 
            conservatively for a few weeks with physical therapy and 
 
            medication.  When this treatment did not improve claimant's 
 
            condition, he referred claimant in February 1990 to an 
 
            orthopedic surgeon, Marshall Flapan, M.D.  Although claimant 
 
            reported right shoulder problems in 1988, Dr. Straubinger 
 
            attributed claimant's problems at that time as casually 
 
            related to the January 27, 1990 fall at work.  
 
            
 
                 Upon a diagnosis of multiple sprains and contusions, 
 
            Dr. Flapan continued drug therapy and returned claimant to 
 
            unrestricted duty.  However, claimant returned to Dr. Flapan 
 
            a few weeks later with continued shoulder complaints when an 
 
            MRI test indicated possible rotator cuff tearing in the 
 
            right shoulder.  Dr. Flapan then ordered an arthrogram which 
 
            confirmed a rotator cuff tear.  Surgery was performed in May 
 
            1990 to repair the rotator cuff and resect the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            coracoacromial ligament.  Claimant was again returned to 
 
            work without restrictions except for using arms away form 
 
            his body and over his head.  Claimant returned to work but 
 
            stated that he continued to have problems reaching and 
 
            lifting phone books, log books and other resource material 
 
            at his work station.  He stated that he regularly stood up 
 
            to change positions.
 
            
 
                 During his employment with the City, claimant had been 
 
            attending college.  He graduated with a BA in psychology in 
 
            May 1991 from Simpson College.  His job search following 
 
            graduation included the City.  In March 1992, claimant 
 
            accepted a position with the City as Homeless Assistance 
 
            Coordinator.  This is a higher paid position that police 
 
            dispatcher and at the present time the annual salary range 
 
            tops out at $37,000.  Claimant stated that he accepted this 
 
            position not only for increased pay but to use his education 
 
            and to secure a less physical position.
 
            
 
                 Claimant testified that he continues to experience 
 
            physical problems in performing his new coordinator job.  
 
            The job requires repetitive use of his hands on occasion 
 
            such a using a keyboard and a lot of stair climbing.  He 
 
            stated that occasionally he assists in unloading truckloads 
 
            of donations which is heavy work.  Claimant's current 
 
            supervisor testified that claimant is a very good employee 
 
            and did not know until the day of hearing that he had a 
 
            prior work injury.
 
            
 
                 It is found that the work injury of January 27, 1990 is 
 
            a cause of a 5-12 percent permanent impairment to the body 
 
            as a whole.  Dr. Flapan gave a rating of 5 percent and a 
 
            one-time evaluator, Martin Rosenfeld, D.O., another 
 
            orthopedic surgeon, rated claimant's impairment at 12 
 
            percent.  Neither gave a rating to the left knee.  Dr. 
 
            Rosenfeld also opined that claimant left shoulder is 
 
            impaired but there is no evidence to suggest that this was 
 
            due to the fall.  
 
            
 
                 Also, as a result of the fall at work, claimant is 
 
            unable to perform physical activities consisting of no 
 
            lifting over 35 pounds, 20 pounds repetitively and no 
 
            lifting or reaching above shoulder level.  These 
 
            restrictions are based upon a functional capability 
 
            evaluation performed in July 1991 by Robert Jones, a trained 
 
            evaluator at Mercy Hospital in Des Moines. Dr. Flapan 
 
            disagrees with such restrictions but his views were rejected 
 
            as illogical.  It is unconvincing for Dr. Flapan to give 
 
            claimant an impairment rating of 5 percent and still opine 
 
            at the same time that claimant has no limitations on the use 
 
            of his shoulder.  Also, Mercy Hospital restrictions are less 
 
            than those imposed by Dr. Rosenfeld who believes claimant 
 
            should not lift over 10 pounds. However, objective 
 
            capability measurement must give way to subjective opinion.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Both physicians causally relate the impairment to the work 
 
            injury of January 27, 1990.
 
            
 
                 It is found that claimant was able to return to his 
 
            dispatching work after treatment albeit with occasional 
 
            pain.  Claimant is 41 years of age.  Claimant has a college 
 
            education.  Claimant's prior employment involved bill 
 
            collecting and air traffic control.  Claimant has umpired 
 
            baseball since 1989 but states that he does less of this 
 
            today.  Claimant is continuing his education in pursuit of a 
 
            masters degree.   
 
            
 
                 His earnings since the work injury have increased due 
 
            to obtaining the higher salaried job.  Although he continues 
 
            to experience some problems with his knee and shoulder, 
 
            claimant is able to handle his new job.  Heavy lifting is 
 
            not required for his job according to his supervisors.  
 
            However, his disability limits him from performing all 
 
            physical aspects of his current job.
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of January 27, 
 
            1990 is a cause of a 5 percent loss of earning capacity.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 It was stipulated that the work injury was a cause a 
 
            permanent physical impairment or limitation upon activity 
 
            involving the body as a whole, the degree of permanent 
 
            disability must be measured pursuant to Iowa Code section 
 
            85.34(2)(u).  However, unlike scheduled member disabilities, 
 
            the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity. 
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, 
 
            immediately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted  Loss of earnings caused by 
 
            a job transfer for reasons related to the injury is also 
 
            relevant.  See Peterson v. Truck Haven Cafe, Inc., vol. 1, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            no. 3 State of Iowa Industrial Commissioner Decisions 654, 
 
            658 (App. Dec. February 28, 1985).
 
            
 
                 A showing that claimant had no loss of actual earnings 
 
            does not preclude a finding of industrial disability. See 
 
            Michael v. Harrison County, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 218, 220 (App. Dec. January 
 
            30, 1979).  The supreme court in Bearce v. FMC Corp., 465 
 
            N.W. 2d 531 (Iowa 1991) only held that continued employment 
 
            with no loss of earnings is significant evidence that should 
 
            not be overlooked in measuring loss of earning capacity.
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 5 percent loss of his earning capacity as a 
 
            result of the work injury.  Such a finding entitles claimant 
 
            to 25 weeks of permanent partial disability benefits as a 
 
            matter of law under Iowa Code section 85.34(2)(u) which is 5 
 
            percent of 500 weeks, the maximum allowable number of weeks 
 
            for an injury to the body as a whole in that subsection. 
 
            
 
                                        ORDER
 
            
 
                 1.  Defendant shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            three hundred twenty-seven and 13/100 dollars ($327.13) per 
 
            week from July 18, 1990.
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 3.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5. Defendant shall file activity reports on the payment 
 
            of this award as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                     ______________________________
 
                                     LARRY P. WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Kevin Kirlin
 
            Attorney at Law
 
            535 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Bruce E. Bergman
 
            Attorney at Law
 
            400 E. First St
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                               51803
 
                                               Filed October 19, 1992
 
                                               Larry P. Walshire
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            LYLE SCHWERY,        
 
                      
 
                 Claimant,                    File No.  946402
 
                      
 
            vs.                            A R B I T R A T I O N   
 
                      
 
            CITY OF DES MOINES,               D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,        
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51803
 
            
 
                 Nonprecedential, extent of disability case.
 
                      
 
                      
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MERRILL C. BECK,              :
 
                                          :
 
                 Claimant,                :      File Nos.  1025702
 
                                          :                 1025703
 
            vs.                           :                  946526
 
                                          :
 
            ARMSTRONG RUBBER & TIRE       :
 
            CO.,                          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE           :
 
            COMPANY and ALLIANZ           :
 
            INSURANCE COMPANY,                      
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
            ------------------------------------------------------------
 
                               STATEMENT OF THE CASE
 
            
 
                 These cases came on for hearing on March 15, 1994, at 
 
            Des Moines, Iowa.  These are proceedings in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of alleged injuries 
 
            occurring on November 8, 1991 (file 1025702), December 6, 
 
            1991 (file no. 1025703), which also involves the Second 
 
            Injury Fund, and, December 15, 1990 (file 946526).  The 
 
            record in the proceedings consist of the testimony of the 
 
            claimant, Jack Salsbury, Joyce Kain; claimant's exhibits 1 
 
            and 2; and, defendants' exhibits 1 through 8 and 10 through 
 
            28.  An objection by claimant to defendants' exhibit 9 was 
 
            sustained and defendants made an offer or proof.
 
            
 
                                      ISSUES
 
            
 
                 Regarding the November 8, 1991 alleged injury (1025702 
 
            and the December 6, 1991 alleged injury 1025703), the issues 
 
            are as follows:
 
            
 
                 1.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits.  The parties agreed 
 
            these two cases involve simultaneous bilateral scheduled 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            member injuries and come under the provisions of 
 
            85.34(2)(s); and,
 
            
 
                 2.  Whether claimant is entitled to Second Injury Fund 
 
            benefits.
 
            
 
                 Regarding the February 15, 1990 injury (946526), the 
 
            issues are:
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment on February 15, 1990;
 
            
 
                 2.  Whether there is a causal connection between 
 
            claimant's alleged disability and any temporary total 
 
            disability, healing period or permanent partial disability 
 
            benefits and his alleged February 15, 1990 injury;
 
            
 
                 3.  The extent of claimant's permanent disability, if 
 
            any, and entitlement to disability benefits.  The parties 
 
            agree that any permanent disability would be to claimant's 
 
            right lower extremity (knee);
 
            
 
                 4.  Whether claimant is entitled to 85.27 medical 
 
            benefits, the issue being causal connection and involves 
 
            only the amount of $114.04, which was the cost of safety 
 
            shoes.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 53-year-old high school graduate.  He 
 
            related his work history prior to beginning work for 
 
            defendant employer on January 30, 1967, and he referred to 
 
            page 81 of claimant's exhibit 1.  The undersigned might note 
 
            that the numbering of the exhibits is somewhat confusing in 
 
            that the claimant offered into evidence exhibits 1 and 2, 
 
            but in looking at the claimant's exhibits, they have exhibit 
 
            1 and then a page and like on page 81, it is exhibit 58, 
 
            page 81.  The undersigned is going to refer to claimant's 
 
            exhibits as 1 and 2 and then the particular pages.  He will 
 
            not refer to the prefix that accompanies each page of the 
 
            exhibit.
 
            
 
                 Claimant stated he obtained his job at defendant 
 
            employer as a machinist and that his prior work history 
 
            helped him to be able to get his current job.   He has also 
 
            taken some adult education courses.
 
            
 
                 Claimant stated the demands of his job as machinist 
 
            from the time he began to the present.
 
            
 
                 Claimant said he moved to a farm in 1970 which 
 
            comprises of 40 acres, put in the crops himself and did the 
 
            building repairs.  He had no cattle.  He indicated he 
 
            stopped doing this in 1990.  He indicated that his farming 
 
            was at a loss from the income standpoint.
 
            
 
                 Claimant's testimony is a little confusing in that he 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            talks about his February 15, 1990 injury in which he fell 
 
            down the stairs when he was leaving for home after having 
 
            attended class in connection with his employment.  He then 
 
            refers to seeing Dr. Misol on his own and relates to page 2 
 
            of exhibit 1 concerning a December 22, 1989 visit in which 
 
            he was complaining of pain in his wrists with more trouble 
 
            with the left.  There is no reference to an 1989 visit with 
 
            Dr. Misol but on page 2 it refers to a February 27, 1990 
 
            visit with a doctor and there is no comment made concerning 
 
            his February 15, 1990 fall.
 
            
 
                 The claimant testified that he had treatment for a 
 
            prior knee problem and went to Dr. Misol for that also on 
 
            October 8, 1984.  Claimant indicated that from 1967 to early 
 
            1990, he had no surgery on his right or left knee.
 
            
 
                 Claimant related the nature of his work and what the 
 
            job encompassed as far as using his body.  Claimant related 
 
            that one week before February 15, 1990, he worked 52 hours 
 
            and the week before that 48.  He related the various hours 
 
            he has worked during the weeks preceding the 15th.  Claimant 
 
            indicated the reason he puts in longer hours at times is 
 
            that the maintenance people must work when the production 
 
            crew is not using the equipment at the company.
 
            
 
                 Claimant then stated that on February 9, 1990, he told 
 
            the nurse of pain in his right hand and elbow which he 
 
            related to work.  He said he continued working his normal 
 
            working hours.
 
            
 
                 Claimant then related that while going to a class on 
 
            behalf of defendant employer, he was leaving the plant and 
 
            fell down the stairs hurting his right knee.  He went to the 
 
            doctor the next day.  Page 86 of claimant's exhibit 1 is the 
 
            medical records concerning that event.
 
            
 
                 On March 12, 1990, claimant had arthroscopic surgery on 
 
            his right knee and was off work for approximately five 
 
            weeks.  There is no dispute as to claimant's healing period.
 
            
 
                 Claimant returned to work on April 19, 1990 and started 
 
            doing the same work even though he was supposed to be on 
 
            light duty.
 
            
 
                 Claimant related the medical treatment he obtained from 
 
            the various doctors treating him for both his upper and 
 
            lower extremities.
 
            
 
                 Claimant referred to claimant's exhibit 1, page 44, 
 
            which is an August 14, 1991 letter by Scott B. Neff, D.O.  
 
            The doctor set out certain work restrictions and the 
 
            claimant was supposed to be re-evaluated in three months.  
 
            At that time, the doctor opined claimant had a 10 percent 
 
            impairment in reference to his right lower extremity as a 
 
            result of claimant's injury and surgery.  Claimant returned 
 
            to work on June 26, 1991 as a machinist and the defendant 
 
            employer complied with his restrictions and limited 
 
            claimant's hours.  Claimant contends he was limited to at 
 
            least two less hours per week than what he usually worked 
 
            and was no longer working 60 or 70 hour weeks.  Claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            contends he lost money because of being limited to eight 
 
            hours per day and a 40 hour week.
 
            
 
                 Claimant then testified that he had surgery on November 
 
            8, 1991 to help get relief from the problems he was having 
 
            with his right upper extremity.  He then had the same type 
 
            of surgery on his left upper extremity on December 6, 1991.  
 
            Claimant then referred to claimant's exhibit 1, page 52, in 
 
            which Dr. Neff on January 5, 1992, wrote that claimant was 
 
            able to return to work on January 13, 1992, and that he 
 
            would have restrictions for approximately 30 days and the 
 
            doctor set out those restrictions.  Claimant said the 
 
            employer accommodated him in his job as a machinist.
 
            
 
                 On page 53 of claimant's exhibit 1, Dr. Neff, on 
 
            February 10, 1992, reported that claimant should restrict 
 
            himself to a normal 40 hour week and try to avoid severely 
 
            prolonged overtime.  He indicated claimant told him he had 
 
            been working six to seven days per week, twelve hours per 
 
            day, and the doctor thought that might be excessive.  He 
 
            also indicated that cushioned soled shoes would diminish the 
 
            contact force the claimant needs and that Palmar-padded 
 
            sobuthane gloves would help claimant's exposed vibration.  
 
            He thought claimant was doing very well.
 
            
 
                 Claimant referred to page 64 of said exhibit, which is 
 
            a February 15, 1993 letter of Dr. Neff.  In that letter, Dr. 
 
            Neff refers to osteoarthritis in both of claimant's knees 
 
            which was primary as also stated by Rheumatologist Theodore 
 
            W. Rooney, D.O.  Dr. Neff further indicated that that had 
 
            not been caused, aggravated, accelerated or lighted up by 
 
            his work injury.  He did say the surgical procedure 
 
            necessary on the right patellar tendon mechanism was the 
 
            result of his work injury.
 
            
 
                 Claimant was discharged by Dr. Neff, as reflected in 
 
            defendants' exhibit 1, page 67, a March 10, 1993 letter, 
 
            because of alleged abuse to Dr. Neff's office staff and 
 
            claimant's refusal to pay the co-payment of his medical 
 
            bills.  Claimant contends he was not discourteous or 
 
            abusive.
 
            
 
                 On cross-examination, claimant was asked concerning his 
 
            prior right knee problems and he denied he had right knee 
 
            problems for many years before his fall.  He didn't remember 
 
            Dr. Flapan recommending arthroscopy surgery in 1984, nor 
 
            does he remember Dr. Misol indicating he had a torn meniscus 
 
            in December 1989, nor that the doctor recommended surgery at 
 
            that time.  Claimant denied that he had told Rodney E. 
 
            Johnson, M.D., that Dr. Misol had recommended knee surgery.  
 
            Claimant then was referred to claimant's exhibit 1, page 1, 
 
            as to Dr. Johnson's January 16, 1990 note in which the 
 
            claimant indicated discomfort in his right knee and told the 
 
            doctor that Dr. Misol has evaluated this and recommended 
 
            arthroscopy surgery.  On examination, Dr. Johnson further 
 
            indicated he thought claimant had a flap tear of the 
 
            posterior horn of the medial meniscus and he was going to 
 
            get a bone scan.
 
            
 
                 On January 30, 1990, after a bone scan was done, the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            doctor indicated that claimant has a posterior horn tear of 
 
            the medial meniscus and he told the doctor he wished to have 
 
            something done about it and has been given a release for 
 
            surgery which will be arranged as an outpatient procedure.  
 
            The undersigned might note that it is hard to believe the 
 
            claimant does not remember this conversation with the doctor 
 
            or the problems he was having with his knee since it 
 
            happened that these conversations were just approximately 15 
 
            days before his alleged fall down the stairs on February 15, 
 
            1990.  On the medical records, it would appear that 
 
            claimant's knee was in such a condition that it needed 
 
            surgery, claimant was having problems, and that any fall 
 
            claimant had was the result of claimant's knee from a 
 
            nonwork situation and that claimant's fall was the result of 
 
            claimant's knee condition prior to February 15, 1990.  
 
            Claimant was further asked concerning Dr. Rooney's letter of 
 
            September 6, 1990, in which he indicated claimant has 
 
            features of primary osteoarthritis of the knees and small 
 
            joints in the hands.  The undersigned is alarmed at 
 
            claimant's memory or lack of memory.  Claimant was very 
 
            evasive with his answers, couldn't recall things that the 
 
            undersigned believes he should be able to recall, and his 
 
            lack of memory is very questionable.  It would also appear 
 
            to the undersigned that some of the doctors examining 
 
            claimant did not know claimant's past history and the 
 
            claimant did not tell them.  Claimant finally acknowledged 
 
            that he did have knee problems prior to his February 15, 
 
            1990 fall.
 
            
 
                 Jack Salsbury has worked for defendant employer 35 
 
            years and has been the local union's benefits representative 
 
            for the last ten years.  He indicated claimant was making 
 
            $14 plus per hour in 1989 and is now making $16 plus.  It 
 
            would appear to the undersigned from other testimony that 
 
            claimant is now earning $16.37 per hour.  Mr. Salsbury 
 
            testified claimant is well respected, a good employee, and 
 
            has good attendance.  He indicated that the company has good 
 
            fringe benefits including medical and vacation pay.  He 
 
            understood claimant's restrictions and the restricted hours.  
 
            He said claimant had previously worked six to seven days per 
 
            week and would earn a lot of overtime.  He said the 
 
            maintenance department works more hours than the rest of the 
 
            plant so there is more overtime available.  He said claimant 
 
            is losing approximately eight hours per week which equal 
 
            approximately $200 per week and of this amount, claimant 
 
            would collect vacation.
 
            
 
                 Joyce Kain testified she began working for defendant 
 
            employer in 1972.  She is the senior personnel benefits 
 
            analyst for defendant employer and has held that position 
 
            since 1979.  She is in charge of hiring, discipline, 
 
            workers' compensation, etc.   She knows claimant and has 
 
            reviewed his medical file and workers' compensation file.
 
            
 
                 Ms. Kain testified that claimant claimed he injured his 
 
            right knee on February 15, 1990, but he never informed them 
 
            that he had a torn meniscus before that date.  She said the 
 
            defendant employer paid claimant's bill but would not have 
 
            if they knew surgery had previously been prescribed before 
 
            the February 15, 1990 fall.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 She said claimant never worked six to seven days at 12 
 
            hours per day like he told Dr. Neff in February 1992.  
 
            (Claimant's Exhibit 1, page 53)  She said claimant's 
 
            overtime dropped but so has everyone's.  She indicated the 
 
            plant went on a six and two-thirds operation and that when 
 
            this started, it severely decreased overtime.  She 
 
            acknowledged that claimant's gross earnings in 1993 were 
 
            $36,000, and in 1992 $34,000.
 
            
 
                 She stated that claimant does not have a 40 hour per 
 
            week restriction but does have a 20 pound lifting weight 
 
            restriction.
 
            
 
                 She said that claimant overstated his job as a 
 
            machinist and it is not as hard as he described.  She does 
 
            not doubt that Dr. Neff said claimant should get shoes, but 
 
            not to wear cowboy boots like he wears.
 
            
 
                 Claimant's exhibit 1, page 12, is records referring to 
 
            claimant's alleged February 15, 1990 right knee injury 
 
            pursuant to a fall.  It is obvious from page 13 of said 
 
            report that Thomas Bower, LPT, did not know of any prior 
 
            history of claimant's knee when he issued that report.  In 
 
            this report, he opined that claimant had a total of 15 
 
            percent impairment to his right lower extremity.  He related 
 
            5 percent of this on the basis of claimant's meniscectomy 
 
            surgery performed on March 12, 1990.
 
            
 
                 There are a lot of other records, including other 
 
            doctors who treated or evaluated or addressed claimant's 
 
            knee problems.  The undersigned does not feel the need to 
 
            specifically refer to those or set those out herein.  The 
 
            undersigned believes that the medical evidence as a whole is 
 
            clear that claimant had preexisting knee problems and that 
 
            claimant had medical attention concerning his right knee 
 
            approximately one month prior to his February 15, 1990 fall.  
 
            The records indicate that claimant needed surgery on his 
 
            knee and, in fact, it was being planned or claimant 
 
            suggested he would like to have it done prior to his fall on 
 
            February 15, 1990.  The undersigned further finds that 
 
            claimant's knee problems are materially and substantially 
 
            the result of his preexisting knee condition and that it 
 
            would appear from the record that claimant's fall was or was 
 
            more likely to have been caused by claimant's preexisting 
 
            knee condition in which it is apparent he had a torn 
 
            meniscus and that claimant's fall was as a result of his 
 
            preexisting knee condition and not because of a work injury.
 
            
 
                 There appears to be no dispute that claimant fell after 
 
            attending class on behalf of the employer.  It would appear 
 
            that claimant's knee gave out or likely gave out because of 
 
            his preexisting knee condition.  The evidence also shows 
 
            that the surgery claimant ultimately had shortly after his 
 
            fall would have been done and was recommended prior to 
 
            February 15, 1990.  The undersigned further finds that the 
 
            claimant's credibility was questionable as to what he told 
 
            or didn't tell the doctors who treated his knee.  It would 
 
            appear from the medical evidence that those who made a 
 
            judgment concerning claimant's knee did so without the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            benefit of knowing claimant's true medical history.
 
            
 
                 Claimant acknowledged that he didn't volunteer any 
 
            answers but he indicated whatever questions he was asked, he 
 
            gave answers.  It is hard for the undersigned to believe 
 
            that claimant did not or could not recall certain things the 
 
            doctors had told him concerning the condition of his knee 
 
            prior to February 15, 1990.  The undersigned therefore finds 
 
            that as to the February 15, 1990 alleged injury, it did not 
 
            arise out of and in the course of claimant's employment and 
 
            that claimant's knee problems and impairment was not caused 
 
            by any work injury and claimant takes nothing as to file 
 
            number 946526.
 
            
 
                 As to claimant's right and left upper extremity alleged 
 
            work injuries, the parties have agreed that claimant 
 
            incurred a simultanous bilateral upper extremity injury on 
 
            November 8, 1991.  Although the petitions in files 1025702 
 
            and 1025703 refer to two separate injury dates, November 8, 
 
            1991 and December 6, 1991, the parties agree that we have 
 
            simultaneous bilateral upper extremity injuries under the 
 
            provisions of 85.34(2)(s).  The only real issues in this is 
 
            the extent of claimant's permanent disability under that 
 
            provision of the code and whether claimant is entitled to 
 
            Second Injury Fund benefits.  Claimant's exhibit 1, pages 46 
 
            and 49, is the November 8, 1991 and December 6, 1991 
 
            operative reports concerning claimant's right endoscopic 
 
            carpal tunnel release and left endoscopic carpal tunnel 
 
            release, respectively.  Dr. Neff, who was the surgeon in 
 
            both of the carpal tunnel release surgeries, opined that 
 
            claimant had a 1 percent impairment to each hand as a result 
 
            of his carpal tunnel syndrome and subsequent surgical 
 
            decompression. (Cl. Ex. 1, p. 56, May 20, 1992 letter)
 
            
 
                 Martin S. Rosenfeld, D.O., gave an impairment rating of 
 
            3 percent to the right upper extremity as a result of the 
 
            right carpal tunnel syndrome release and a 4 percent 
 
            impairment of the left hand because of the increased pain, 
 
            tingling and problems.  Medical evidence shows that 
 
            claimant's work injury did cause an impairment to his left 
 
            and right upper extremity.  Dr. Neff is known by this agency 
 
            to be very conservative in his impairment and Dr. Rosenfeld 
 
            is known to be liberal.  The weight restriction in the 
 
            record had to do with claimant's knee or lower extremities 
 
            as the July 10, 1991 letter of Dr. Neff (claimant's exhibit 
 
            1, page 43) indicated that claimant had a 20 pound weight 
 
            limit at that time subsequent to his knee surgery by Dr. 
 
            Neff.
 
            
 
                 As to the 40 hour limitation, the undersigned believes 
 
            that this isn't as such a medical restriction but a 
 
            suggestion.  In looking at claimant's exhibit 1, page 53, 
 
            Dr. Neff made a comment that it would be wise for claimant 
 
            to restrict himself to a normal 40 hour week and try to 
 
            avoid severely prolonged overtime.  The undersigned 
 
            interprets that to mean that overtime is not prevented or 
 
            restricted but prolonged overtime cannot be done.  It is 
 
            obvious the doctor made this comment based on the claimant 
 
            telling him that he works six to seven days per week, twelve 
 
            hours per day.  The doctor thought that was excessive.  The 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            undersigned believes that would be excessive in any and all 
 
            situations.  The record does not show claimant worked that 
 
            many hours and, in fact, the undersigned notes reflect that 
 
            claimant referred to several weeks prior to his February 15, 
 
            1990 fall in which he worked at most 56 some weeks and as 
 
            low as 25 in other weeks and there were various figures in 
 
            between in the 50s and in the 40s.  Anyone subjecting 
 
            themselves to that many days a week with that many hours is 
 
            asking for trouble as far as physical stress on their body.  
 
            There is no indication the employer made them or forced an 
 
            individual to do it, but obviously claimant was willing 
 
            because of the money involved.  Once removed from this type 
 
            of excessive overtime, which the undersigned does not 
 
            believe claimant worked that many hours a day as he 
 
            indicated, claimant will no longer either suffer injury or 
 
            cause himself to be further aggravated.
 
            
 
                 The undersigned finds that claimant has a permanent 
 
            impairment of 2 percent to the left hand and 2 percent to 
 
            the right hand as a result of his carpal tunnel syndrome 
 
            surgeries.  Converting these under the AMA Guides To The 
 
            Evaluation of Permanent Impairment, 2 percent of the hand is 
 
            1 percent of the upper extremity and 1 percent of the upper 
 
            extremity is 1 percent to the body as a whole and 1 percent 
 
            body as a whole as to the left and right upper extremity 
 
            results in a 2 percent body as a whole impairment.  The 
 
            undersigned therefore finds that as a result of claimant's 
 
            November 8, 1991 simultaneous bilateral carpal tunnel 
 
            syndrome, claimant incurred a 2 percent body as a whole 
 
            injury that arose out of and in the course of claimant's 
 
            employment.  This would entitle claimant to 10 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Claimant contends that he had as high as 25 percent 
 
            permanent partial impairment to his right lower extremity.  
 
            He believes the medical evidence would indicate he had a 15 
 
            percent as a result of his first surgery, medial meniscus, 
 
            and then an additional 10 percent when the Maquet procedure 
 
            by Dr. Neff was done.  The undersigned believes the greater 
 
            weight of medical evidence shows that claimant had a 10 
 
            percent permanent impairment to his right lower extremity.  
 
            The records show that when Dr. Neff opined a 10 percent, he 
 
            did not have all the facts and claimant's prior medical 
 
            history so he later decreased that 10 percent and opined 
 
            that only 5 percent was attributable at the most to any work 
 
            injury if there was a work injury.  Dr. Rosenfeld agreed 
 
            with Dr. Neff's original 10 percent.  Since the undersigned 
 
            found there is no work injury of February 15, 1990, it is 
 
            immaterial as to any further argument between whether Dr. 
 
            Rosenfeld would ultimately agree to a 5 percent of Dr. 
 
            Neff's decision or not.  As indicated earlier, the 
 
            undersigned does not believe these doctors have the full 
 
            medical picture or was claimant credible in disclosing his 
 
            medical situation when he saw the doctors.
 
            
 
                 For purposes of the Second Injury Fund, it is 
 
            immaterial whether the first injury is a work injury or a 
 
            nonwork injury or a congenital condition.  The undersigned 
 
            therefore finds that for the purposes of the Second Injury 
 
            Fund, that claimant had a 10 percent permanent impairment of 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            his right lower extremity at the time of his November 8, 
 
            1991 simultaneous bilateral carpal tunnel injury.  For the 
 
            purpose of the latter injury, the Second Injury Fund is 
 
            involved because there is two separate scheduled members 
 
            involved at different times.
 
            
 
                 The undersigned is not considering any alleged 
 
            permanent impairment to claimant's left lower extremity.  
 
            Dr. Rosenfeld is the only one who referred to that and gave 
 
            an impairment and there is nothing further in the record to 
 
            indicate that that can be substantiated or is involved in 
 
            these proceedings herein.
 
            
 
                 Claimant argues that claimant has a substantial loss of 
 
            income as a result of his injuries and impairments and that 
 
            the Second Injury Fund is responsible for payment of some 
 
            benefits to the claimant.
 
            
 
                 The claimant's major contention is that claimant feels 
 
            he has lost all opportunities for overtime which under his 
 
            calculation amounts to approximately $200 per week.  The 
 
            undersigned is disturbed by the wide variance of what 
 
            claimant contends he is making and what the defendants' 
 
            records show he is making.  Claimant provided claimant's 
 
            exhibit 2, which has been objected to and the objection is 
 
            overruled, as that purported to show claimant's adjusted 
 
            gross earnings from 1985 through 1992.  It showed in 1992 
 
            adjusted gross income of $28,672.  In looking at defendants' 
 
            exhibit 25, page 72, that would show that claimant's actual 
 
            adjusted gross as far as employment records is approximately 
 
            $34,385.65.  For 1993, it shows $36,174.75.  The undersigned 
 
            does not believe there should be that type of discrepancy 
 
            between the parties' records.  The undersigned believes that 
 
            defendants' records do in fact show claimant's gross 
 
            earnings.  The undersigned can only determine that the 
 
            defendants' figures may have had some deductions he took 
 
            from them before arriving at those figures and that they do 
 
            not reflect his actual gross income but may reflect an 
 
            adjusted gross income or something else after deductions.
 
            
 
                 There is no question that claimant is making more 
 
            income now than he was at the time of his injury.  He was 
 
            making $14 plus per hour and is now making $16 plus per 
 
            hour.  Claimant contends he is losing overtime.  There is 
 
            testimony by the defendants' witness, Joyce Kain, that as 
 
            far as she is concerned and the company is concerned, the 
 
            claimant does not have a 40 hour per week restriction.  The 
 
            undersigned has previously addressed that and basically 
 
            agrees with that.  As indicated earlier, the 20 pound limit 
 
            had to do with claimant's lower extremity injury or a 
 
            preexisting condition and permanent impairment.  Ms. Kain 
 
            also indicated that overtime availability for people has 
 
            dropped because of a new system installed by the company 
 
            which severely decreased overtime.
 
            
 
                 It is understandable to the undersigned that a company 
 
            would not consistently, if it were true, have overtime six 
 
            and seven times a week, 12 hours a day.  As indicated 
 
            earlier, there is no evidence this was the fact anyway.  
 
            Forty hours per week is the normal work week and claimant 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            did work some overtime.
 
            
 
                 Dr. Neff indicates that it would be wise if claimant 
 
            removed himself from excessive overtime because of his 
 
            overall situation.  Once removed from this type of excessive 
 
            overtime, it would prevent further impairment or injury to 
 
            claimant's body.  The undersigned finds it is wise for 
 
            defendant employer to limit overtime, particularly as to 
 
            individuals who may be more susceptible to injury or through 
 
            past history, they incur additional injury because of a 
 
            preexisting condition.  The undersigned does not find that 
 
            claimant has a loss of income as such.
 
            
 
                 Loss of income and loss of earning capacity are not the 
 
            same even though loss of income is one of the criteria used 
 
            in determining industrial disability.
 
            
 
                 The employer is accommodating the claimant and claimant 
 
            appears to be doing very good in his job and there is no 
 
            reason why he can't and is not able to continue.
 
            
 
                 Claimant is 52 years of age.  He has worked for 
 
            Armstrong for 27 years.  The undersigned believes if in fact 
 
            claimant was relieved of his job that he would have 
 
            difficulty doing work and finding employment taking into 
 
            consideration his transferable skills, his age, his 
 
            education, and the nature of his injuries or impairment.  
 
            The undersigned is not going to speculate as a potential has 
 
            not arisen and does not appear to be going to arise.  If it 
 
            does, claimant may have certain remedies under the law.  The 
 
            undersigned does believe that claimant does have a 10 
 
            percent loss of earning capacity taking into consideration 
 
            all of the criteria that one is to take into consideration 
 
            in determining industrial disability.
 
            
 
                 The Fund is only responsible for the industrial 
 
            disability present that exceeds the disability attributable 
 
            to the first and second injuries.  The undersigned found 
 
            that claimant had a 10 percent permanent partial impairment 
 
            to his right lower extremity which would amount to 22 weeks 
 
            of permanent partial disability if there was liability.  As 
 
            indicated before, defendants were not responsible for any 
 
            benefits as a result of his February 15, 1990 fall, but as 
 
            further indicted it is immaterial as to whether there was a 
 
            work injury involved or not.
 
            
 
                 The undersigned found that claimant has a 2 percent 
 
            body as a whole work-related injury as a result of his 
 
            simultaneous bilateral carpal tunnel syndrome injury of 
 
            November 8, 1991.  This entitled claimant to 10 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Having found claimant incurred a 10 percent industrial 
 
            disability, the Second Injury Fund is therefore responsible 
 
            for 18 weeks of permanent partial disability benefits 
 
            payable to the claimant (10 x 500 = 50 weeks - 22 weeks - 10 
 
            weeks = 18 weeks).
 
            
 
                 Therefore, in summary, the undersigned finds that 
 
            claimant did not incur a work injury on February 15, 1990.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Claimant incurred a 2 percent body as a whole injury as 
 
            a result of his simultaneous bilateral carpal tunnel injury 
 
            on November 8, 1991.
 
            
 
                 The claimant has a 10 percent industrial disability as 
 
            a result of his first and second injuries or impairments to 
 
            separate scheduled members and, therefore, the Second Injury 
 
            Fund is responsible to pay the claimant 18 weeks of 
 
            permanent partial disability benefits.
 
            
 
                                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 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Benefits for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 It is further concluded that:
 
            
 
                 Regarding the February 15, 1990 injury (file 946256):
 
            
 
                 Claimant did not incur an injury to his lower right 
 
            extremity that arose out of and in the course of his 
 
            employment.
 
            
 
                 Claimant had a serious left knee injury and impairment 
 
            that existed prior to claimant's February 15, 1990 fall and 
 
            that it was this preexisting knee condition that was a 
 
            material and substantial cause and reason for claimant to 
 
            fall and was the substantial and material reason claimant 
 
            incurred the medical and any additional impairment and 
 
            surgeries to said right knee.
 
            
 
                 The doctors did not have the complete and accurate 
 
            medical history at certain times when various reports were 
 
            made and that claimant failed to disclose his true medical 
 
            situation.
 
            
 
                 Defendants are not responsible for payment of the shoe 
 
            bill in the amount of $114.04.
 
            
 
                 Claimant was not a credible witness.
 
            
 
                 Regarding the November 8, 1991 bilateral simultaneous 
 
            carpal tunnel syndrome injuries, represented by files 
 
            1025702 and 1025703, it is concluded that claimant incurred 
 
            a simultaneous bilateral carpal tunnel syndrome injury on 
 
            November 8, 1991 which resulted in a left and right carpal 
 
            tunnel surgery, causing claimant to incur a 2 percent 
 
            impairment to both the left hand and right hand resulting in 
 
            2 percent permanent impairment to claimant's body as a 
 
            whole.
 
            
 
                 The defendants are obligated to pay claimant 10 weeks 
 
            of permanent partial disability benefits at the rate of 
 
            $375.64.
 
            
 
                 Claimant has a 10 percent industrial disability as a 
 
            result of his first and second injuries.
 
            
 
                 In reference to these injuries, the Second Injury Fund 
 
            is liable for a total of 18 weeks of permanent partial 
 
            disability benefits payable to claimant at the rate of 
 
            $375.64.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Regarding file 946526, alleged injury of February 15, 
 
            1990, claimant takes nothing from these proceedings.
 
            
 
                 The parties divide equally the costs.
 
            
 
                 Regarding files 1025702 and 1025703, the November 8, 
 
            1991 simultaneous bilateral injuries:
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Defendant employer shall pay unto claimant ten (10) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred seventy-five and 64/100 dollars ($375.64) 
 
            beginning January 13, 1992.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  It has already been 
 
            stipulated that defendant employer previously paid five (5) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred ninety-eight and 10/100 dollars ($298.10).
 
            
 
                 The Second Injury Fund shall pay claimant eighteen (18) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred seventy-five and 64/100 dollars ($375.64) 
 
            commencing at the end of the employer's liability.
 
            
 
                 That defendant employer shall pay interest on benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That the Second Injury Fund shall pay interest as 
 
            provided by law, said interest beginning on the date of this 
 
            decision.
 
            
 
                 That the costs of this action shall be paid equally by 
 
            defendant employer and Second Injury Fund.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311-1540
 
            
 
            Mr Michael J Eason
 
            Attorney at Law
 
            100 Court Ave Ste 600
 
            Des Moines IA 50309-2231
 
            
 
            Mr Jon Swanson
 
            Attorney at Law
 
            8th Flr fleming Bldg
 
            218 Sixth Ave
 
            Des Moines IA 50309
 
            
 
            Mr James F Christenson
 
            Assistant Attorney General
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1100; 5-1803;
 
                                                 5-1808; 5-3200
 
                                                 Filed April 8, 1994
 
                                                 Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MERRILL C. BECK,              :
 
                                          :
 
                 Claimant,                :      File Nos.  1025702
 
                                          :                 1025703
 
            vs.                           :                  946526
 
                                          :
 
            ARMSTRONG RUBBER & TIRE       :
 
            CO.,                          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE           :
 
            COMPANY and ALLIANZ           :
 
            INSURANCE COMPANY,                      
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
                                          :
 
            ------------------------------------------------------------
 
           
 
            
 
            File No. 946526
 
            
 
            5-1100
 
            Found claimant did not incur an injury that arose out of and 
 
            in the course of his employment.
 
            Found claimant's preexisting knee condition was the 
 
            substantial cause of his fall and not a work injury.  
 
            Claimant did not disclose his true medical history to the 
 
            doctors.  Claimant took nothing.
 
            
 
            File Nos. 1025703 and 1025702
 
            
 
            5-1803; 5-1808
 
            Found claimant incurred a bilateral simultaneous carpal 
 
            tunnel injury on November 8, 1991, resulting in a left and 
 
            right carpal tunnel surgery causing claimant to incur a 2% 
 
            permanent partial impairment to claimant's body as a whole 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            entitling claimant to 10 weeks of permanent partial 
 
            disability from defendant employer.
 
            
 
            5-3200
 
            Claimant additionally awarded 18 weeks of benefits from the 
 
            Second Injury Fund.