BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
               
 
         DAN BIRKENHOLTZ,    
 
               
 
          Claimant, 
 
                                          File Nos.  955799
 
         vs.                                        1015924
 
                                                    1026343
 
         ANDERSON ERICKSON DAIRY, 
 
                                        A R B I T R A T I O N
 
          Employer, 
 
                                           D E C I S I O N
 
         and        
 
               
 
         EMPLOYERS MUTUAL COMPANIES,   
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ___________________________________________________________
 
         
 
                           STATEMENT OF THE CASE
 
           
 
           These are proceedings in arbitration upon the petitions 
 
         of claimant, Dan Birkenholtz, against his employer, Anderson 
 
         Erickson Dairy, and its insurance carrier, Employer's Mutual 
 
         Companies, defendants.  The cases were heard on August 5, 
 
         1994 in Polk County, Iowa at the county courthouse.  The 
 
         record consists of the testimony of claimant.  The record is 
 
         also comprised of the testimony of Kevin Smith, M.D., an 
 
         occupational medicine specialist; the testimony of Cindy 
 
         Birkenholtz, spouse; Greg Wilkinson, plant manager; the 
 
         testimony of Scott Maly, a rehabilitation consultant; and 
 
         the expert witness who was retained by defendants.  The 
 
         record also consists of certain exhibits.  The exhibits 
 
         which are part of the record are:  claimant's exhibits 1-50 
 
         and defendants' exhibits A-G.  For purposes of 
 
         administrative economy, the files were consolidated at the 
 
         hearing.  Each file number relates to a separate date of 
 
         injury.  File number 955799 involves an alleged injury date 
 
         of March 9, 1990.  File number 1015924 involves an alleged 
 
         injury date of April 30, 1992.  File number 1026343 relates 
 
         to an alleged injury date of March 15, 1990.
 
         
 
                                  ISSUES
 
           
 
           The issues to be determined are:  
 
           
 
           For file number 955799, March 9, 1990 -
 
           
 
           1)  whether there is a causal relationship between the 
 
         injury of March 9, 1990 and any permanent disability; 2) 
 
         whether claimant is entitled to any permanent partial 
 
         disability benefits, and if so, the commencement date for 
 
         those benefits; and, 3) whether claimant is entitled to any 
 
         medical expenses in the form of medical mileage.
 

 
 
 
 
 
 
 
           
 
           For file number 1026343, March 15, 1990 -
 
           
 
           1) whether there is a causal relationship between the 
 
         injury of March 15, 1990 and any permanent disability; 2) 
 
         whether claimant is entitled to any permanent partial 
 
         disability benefits; 3) whether claimant is entitled to any 
 
         medical expenses in the form of medical mileage; and, 4) the 
 
         proper rate for any weekly benefits.
 
           
 
           For file number 1015924, April 30, 1992 -
 
           
 
           1) whether claimant is entitled to any healing period 
 
         benefits; 2) whether claimant is entitled to any permanent 
 
         partial disability benefits;  3) the appropriate rate to be 
 
         used in calculating any permanent partial disability 
 
         benefits; and, 4) whether claimant is entitled to medical 
 
         benefits in the form of medical mileage.
 
         
 
                           FINDINGS OF FACT
 
           
 
           The deputy, having heard the testimony and considered 
 
         all the evidence, finds:
 
           
 
           Prior to the hearing, the parties stipulated that 
 
         claimant sustained three work-related injuries which arose 
 
         out of and in the course of claimant's employment.  The 
 
         stipulated dates were March 9, 1990, March 15, 1990 and 
 
         April 30, 1992.
 
           
 
           Claimant is 43 years old.  He is a 1969 high school 
 
         graduate from Prairie City High School.  He entered college 
 
         at Colorado State University following his graduation from 
 
         high school.  However, claimant did not meet academic 
 
         expectations and he dropped out of college after two years.  
 
         His academic grade point was less than satisfactory.
 
           
 
           Claimant is the married father of two children.  At the 
 
         time of the first two work injuries, claimant had two 
 
         dependent children.  At the time of the third work injury, 
 
         claimant had only one dependent child.
 
           
 
           Primarily, claimant had worked in hard manual labor 
 
         type jobs.  Frequently, he was required to lift 50 pounds.  
 
         He was also required to walk, squat, and climb.  Many of his 
 
         jobs required positions in farm operations or in the 
 
         construction 
 
         industry.  Prior to his employment with this defendant, 
 
         claimant described his health, including his spine, as 
 
         excellent.
 
           
 
           Claimant testified he commenced his employment with 
 
         this defendant in September of 1989.  He was hired to work 
 
         in the cooler.  His responsibilities included  pulling carts 
 
         and product, filling orders and lifting bags which weighed 
 
         45 pounds each.   The last position which claimant had held 
 
         within the plant was Bottle Filler-N5 Operator.  It is 
 
         classified in the medium category of work (Exhibit A-5).
 
           
 
           On March 9, 1990, claimant hit the top of his head on a 
 
         doorway.   He obtained a medical consultation from K. 
 
         Barrett, M.D., on March 15, 1990 which was also the date of 
 
         claimant's second work injury.  Dr. Barrett's office note 
 
         for the March 30th date details both of the work injuries.  
 
         Dr. Barrett noted:
 
           
 

 
 
 
 
 
 
 
           s: Daniel comes in today complaining of shoulder 
 
              pain.  He states that on 3/09/90 he was 
 
              stepping up into the cooler and bumped his head 
 
              on entrance to the cooler.  He states he has 
 
              pain in his right shoulder area.  It tends to 
 
              be a sharp pain.  It tends to be worse after a 
 
              day has gone by.  He has no numbness or 
 
              tingling in his arms.  He has no loss of 
 
              strength.  He also complains of an area on his 
 
              right calf, inner side, where he has been hit 
 
              and it tends to be somewhat increasing and is 
 
              painful once in awhile.  He states that he 
 
              does't [sic] really notice it that much, but 
 
              his wife noticed it and would also like to get 
 
              it checked out. 
 
              o: PERR, EOMI.  He has good shoulder shrug.  He 
 
              has good strength in his arms.  No loss to 
 
              sensation., [sic] He has no increased pain to 
 
              palpation of the right shoulder area.  He has 
 
              no pain to palpation to his vertebrae.  He has 
 
              good ROM of his neck.
 
           
 
           A: 1) Probable entrapment of cutaneous nerve on 
 
              the right side of shoulder area.  2) 
 
              Varicosities of the right mid inner calf.
 
           
 
           P: The patient is to have a C-spine and results 
 
              will be called to me.  If these are negative, 
 
              we will start him on non-steroidal anti-
 
              inflammatory drugs and some PT.  He is to wear 
 
              support stockings for the varicosities of his 
 
              right leg.  
 
         
 
         (Ex. 1, page l)
 
           
 
           Claimant returned to the family practitioner on June 
 
         18, 1990.  The physician detailed the following in his 
 
         clinical note for the day:
 
           
 
           S: This white male presents today after having 
 
              developed sudden left arm pain and left 
 
              shoulder pain while at work.  He notes that his 
 
              neck popped and suddenly everything disappeared 
 
              except that then he had a spasm-type pain on 
 
              the left side of his neck.  He notes that while 
 
              at work at A&D on 03/09/90, he had stepped into 
 
              the cooler and bumped his head very hard on the 
 
              entrance to the cooler.  At that time he 
 
              developed pain in his right shoulder.  It 
 
              tended to be a sharp pain and kept getting 
 
              worse.  He notes that he went to physical 
 
              therapy for a long period of time and this pain 
 
              totally resolved.  At that time he did have a 
 
              cervical x-ray which showed a normal exam.  
 
              Today he is denying any numbness and tingling 
 
              and he denies any muscle weakness.  He just 
 
              notes a spasm-type right shoulder pain.
 
           
 
           O: Examination shows an alert and oreinted [sic] 
 
              white male in no acute distress.  His head is 
 
              normocephalic without evidence of trauma.  Ears 
 
              are normal.  Eyes are PERRLA and EOMI.  
 
              Neurologic exam shows no focal deficits.  
 
              Strength is 5/5 with normal range of motion of 
 
              the upper extremities.  He has normal strength 
 
              of flexion/extension, supination and pronation.  
 

 
 
 
 
 
 
 
 
 
 
 
              Grip is strong with normal sensation to light 
 
              touch intact, normal graphesthesia and joint 
 
              proprioception as well.  There is no evidence 
 
              of muscle weakness.  Lower extremities show no 
 
              evidence of difficulty with deep tendon 
 
              reflexes being 2/4 and equal in all four 
 
              extremities.  
 
           
 
           A: Probable cervical strain secondary to activity 
 
              at work.
 
           
 
           P: Patient was placed on Orudis 75 mg tid with 
 
              food.  He is to use moist heat and ice, 
 
              alternating every 20 minutes every 3-4 hours.  
 
              If he has continued pain, he will return to the 
 
              clinic.  We will consider the possibility of 
 
              physical therapy at that time.
 
         
 
         (Ex. 2, pp. 1 & 2)
 
           
 
           The family physician prescribed medications such as 
 
         Voltaren and physical therapy for claimant's neck and 
 
         shoulder problems.  Claimant continued expressing subjective 
 
         complaints of pain in the neck and shoulder area.  He also 
 
         developed superficial varicosities in his leg.
 
           
 
           In February of 1992, claimant sought a medical 
 
         examination from John A. Stern, M.D.  The physician opined 
 
         that claimant had patent deep veins but no evidence of deep 
 
         venous thrombosis (Ex. 15, p. 18).  Dr. Stern related 
 
         claimant's varicose veins to claimant's work injury in March 
 
         of 1990 (Ex. 16, p. 19).  Dr. Stern specifically opined:
 
           
 
           As you can see from the temporal occurrence of his 
 
           varicose veins and his injury, it appears that the 
 
           varicose veins did present following the injury to 
 
           his posterior calf.  Because there are no varicose 
 
           veins on the other leg and no family history, it 
 
           would be my assumption that the varicose veins did 
 
           result from the posterior calf injury and have 
 
           progressed since that time.
 
         
 
         (Ex. 16, p. 19)
 
           
 
           On February 26, 1992, claimant underwent a litigation 
 
         and excision of varicose veins of the right leg.  The 
 
         surgical procedure was performed by Kathleen L. Smith, M.D.
 
           
 
           The evidence establishes that with respect to file 
 
         number 955799, claimant was paid weekly benefits for the 
 
         period from July 25, 1990 through August 12, 1990 and from 
 
         October 1, 1990 through October 6, 1990.  The corrected 
 
         stipulated rate is $331.68 per week.
 
           
 
           The evidence also establishes that with respect to file 
 
         number 1026343, claimant was paid benefits from February 26, 
 
         1992 through March 8, 1992.  The stipulated weekly benefit 
 
         rate is $325.49.  Claimant is entitled to the difference 
 
         between the two totals.
 
           
 
           In February and March of 1992, claimant returned to the 
 
         family practice clinic.  He was examined by J. W. Opoien, 
 
         M.D.  The physician reported the following to claimant's 
 
         workers' compensation carrier:
 
           
 
           When I saw him 2/12 he did relate that he had 
 

 
 
 
 
 
 
 
           tripped over a "policeman" at work and he states 
 
           that he developed varicose veins following that 
 
           injury.  I performed venous duplex scanning at 
 
           Iowa Lutheran Hospital and it did show the 
 
           varicose veins, otherwise the venous duplex study 
 
           was normal.  The deep venous system appeared to be 
 
           normal.  Mr. Birkenholtz feels certain that the 
 
           varicosities were not present prior to his initial 
 
           injury.  It is somewhat difficult to formulate an 
 
           opinion as to whether the varicose veins are the 
 
           result of the specific injury two years ago.  In 
 
           order to develop varicose veins from an injury, 
 
           you 
 
           would need to have some sort of an increased 
 
           venous pressure, most commonly as a result of a 
 
           clot forming in the deep venous system.  
 
           Theoretically, that clot could dissolve over time 
 
           but in order to create superficial varicosities, 
 
           it would be more probable that this deep venous 
 
           occlusion would need to persist for a prolonged 
 
           period of time.  Based on the information that I 
 
           have, I would suspect that the varicose veins, 
 
           most likely, are not related to the injury.  It 
 
           might be worthwhile to obtain an opinion from Dr. 
 
           Stern concerning the possibility of the varicose 
 
           veins being related to his previous injury.  
 
         
 
         (Ex. 14, p. 16)
 
           
 
           Claimant testified regarding his work injury on April 
 
         30, 1992.  He described the events involved in his work 
 
         injury.  As he was climbing down from a ladder, claimant 
 
         stepped off a rung; he then slipped on a hose, and his left 
 
         foot hit the ladder.  He twisted his right ankle and he felt 
 
         a twinge in his back.
 
           
 
           Claimant went to the offices of Dr. Opoien.  The 
 
         physician diagnosed claimant as having "back strain" (Ex. 2, 
 
         p. 4).  The physician prescribed medication and physical 
 
         therapy.
 
           
 
           The evidence establishes that claimant was paid weekly 
 
         benefits for file number 1015924.  He was paid benefits for 
 
         the periods from:
 
           
 
                  May 1, 1992 through June 21, 1992
 
           
 
                  August 14, 1992 through August 27, 1992
 
           
 
                  August 30, 1992 through October 22, 1992
 
           
 
                  October 22, 1992 through November 6, 1992
 
           
 
                  June 1, 1993 through July 19, 1993.
 
           
 
           He was paid at the weekly benefit rate of $273.76 per 
 
         week.
 
           
 
           In October of 1992, claimant was examined and evaluated 
 
         by William R. Boulden, M.D., an orthopedic surgeon.  Dr. 
 
         Boulden opined:
 
           
 
             We reviewed his MRI.  The patient does not have 
 
           any type of neural entrapment at all.  He has 
 
           degenerative disc disease.
 
           
 

 
 
 
 
 
 
 
             Impression:  Mechanical back pain with 
 
           significant myofascial pain and tightness.
 
           
 
             At this time in my medical opinion, the patient 
 
           has nothing to benefit from an operative 
 
           standpoint.  I question the patient's back 
 
           rehabilitation process.  It sounds to me as though 
 
           it has been `hit or miss' situation at different 
 
           centers.  I'm not sure what's been going on all of 
 
           this time, but the patient continues to suffer.  I 
 
           recommend getting his back mobilized, loosened up 
 
           and teaching him the stabilization exercise 
 
           program.  Then I think he would probably benefit 
 
           from a good work conditioning program.  I have not 
 
           heard him say that he's had any type of this 
 
           treatment and wonder what all of this other 
 
           therapy was involving.  I would like to see him 
 
           back in two weeks to monitor his progress.
 
         
 
         (Ex. 19, pp. 22-23)
 
           
 
           In December of 1993, Dr. Boulden determined there was 
 
         nothing more he had to offer to claimant other than to 
 
         exercise and to engage in physical therapy.  Dr. Boulden 
 
         opined the following relative to claimant's back condition:
 
           
 
              I think it is ok for him to continue therapy 
 
           for another couple of weeks regaining better 
 
           motion.  He needs to work hard on his 
 
           stabilization exercises.  From my standpoint, I 
 
           anticipate that he continue working at this 
 
           regular job, however, when they take him off of 
 
           his regular job that breaks down they need to 
 
           follow his restrictions of no bending and twisting 
 
           with his back.  If they do this, then I think he 
 
           will be ok.  If the [sic] don't follow the 
 
           restrictions, then that will definitely put him at 
 
           risk of having increasing symptoms again and 
 
           therefore job vocational rehabilitation needs to 
 
           be considered.
 
           
 
              In reference to his permanent partial 
 
           impairment rating, I feel that according [sic] the 
 
           AMA guidelines he has a 7% impairment of the 
 
           lumbar spine.
 
         
 
         (Ex. 20, p. 25)
 
           
 
           For the purposes of obtaining an independent medical 
 
         examination, claimant made an appointment with Keith W. 
 
         Riggins, M.D.  Dr. Riggins interviewed and evaluated 
 
         claimant in June of 1993.  The physician opined the 
 
         following in his report of June 28, 1993:
 
           
 
             Diagnosis:  1.  Intervertebral disc disease, 
 
           lumbar.
 
           
 
             Impairment is rated in accordance with the AMA 
 
           Guide to Evaluation of Permanent Impairment at 
 
           sixteen 
 
           percent (16%) impairment of the whole person 
 
           secondary to restriction of range of motion of the 
 
           lumbar spine and seven percent (7%) percent [sic] 
 
           impairment of the whole person based on 
 
           intervertebral disc disease, category 2C, as noted 
 
           in Table 49, with these values, sixteen and seven, 
 

 
 
 
 
 
 
 
 
 
           combining to produce an impairment of the whole 
 
           person of twenty-two percent (22%).
 
           
 
             Mr. Birkenholtz' current symptoms are felt to be 
 
           due to intervertebral disc disease aggravated by 
 
           his injury of March 30, 1992 and thereby converted 
 
           from an asymptomatic to a symptomatic state and is 
 
           responsible for the impairment described above.  
 
           It is recommended that he not be placed in job 
 
           assignments which require recurrent forward 
 
           flexion of more than thirty degrees.  Frequent 
 
           lifting should be limited to twenty pounds with 
 
           occasional lifting to forty pounds.  In neither 
 
           instance should these weights be lifted from floor 
 
           height but could be lifted at approximately waist 
 
           level from one surface to another surface at waist 
 
           level.  He should not engage in activities which 
 
           require repetitive twisting or rotational motions 
 
           of the trunk.  Even working within such 
 
           limitations, he is likely to have recurrent 
 
           episodes of exacerbation of his back pain.
 
           
 
           Records of Dr. Opoien, Dr. Smith, Physical 
 
           Therapy, and Physical Therapist have been reviewed 
 
           in the course of preparation of this report.  MRI 
 
           study performed in May of 1992 was also reviewed.
 
         
 
         (Ex. 44, pp. 52 & 53)
 
           
 
           Claimant participated in an evaluation at the Iowa 
 
         Department of Vocational Rehabilitation.  He sought 
 
         assistance from the department upon his own initiative.  
 
         John Hollister completed an evaluation of claimant.  In his 
 
         written report, Mr. Hollister summarized his findings.  He 
 
         indicated:
 
           
 
             Summary:
 
           
 
               ...
 
           
 
           Dan does not make physical complaints, although 
 
           there is a combination of facial expression, and 
 
           body positioning that could indicate physical 
 
           problems.  I think Dan's doctor should be aware of 
 
           future vocational planning.
 
           
 
              While Dan has completed a number of adaptions 
 
           in his shop, he still needs additional devices to 
 
           aid in 
 
           handling heavy objects.  Dan maintains that he 
 
           physically performs best if able to frequently 
 
           change work positions.  I see Dan as being 
 
           impatient, and as a result may not take the time 
 
           to always use physical accommodation devices.  I 
 
           do not think anyone will convince Dan to look else 
 
           where [sic] for potential employment.
 
           
 
              It appears that we are dealing with potentially 
 
           a future small business evaluation.  In my opinion 
 
           the first step is to provide an opportunity for 
 
           Dan to gain knowledge about automotive electronic 
 
           control systems.  I think this could be best 
 
           accomplished by auditing that portion of the DMACC 
 
           automotive training program.  I might also suggest 
 
           adaptive equipment involvement.  (perhaps the 
 
           adaptive equipment technician can see addition 
 

 
 
 
 
 
 
 
 
 
           devices to accommodate physical restrictions)
 
           
 
              Equipment that I could see being of benefit 
 
           would be a modified transmission jack, and a 
 
           hydraulic lift cart (to move objects from floor to 
 
           bench top height).  He appears to have the welding 
 
           equipment accommodated, and should not require any 
 
           addition [sic] help with that area.  
 
           Recommendation is for self employed Automobile 
 
           Mechanic 620.261-010, and Welder-Combination 
 
           819.384-010.
 
         
 
         (Ex. 45, pp. 60 & 61)
 
           
 
           Claimant was then sent to Kevin F. Smith, M.D., M.P.H., 
 
         of the Workmed Midwest Clinic.  He is a specialist in 
 
         occupational medicine.  Dr. Smith made several 
 
         recommendations relative to claimant's condition.  In his 
 
         medical report of August 1, 1994, Dr. Smith opined:
 
           
 
              I have reviewed my medical records and have 
 
           found that there is a difference between Mr. 
 
           Birkenholtz's subjective complaints and objective 
 
           medical findings.  Due to this difference I have 
 
           made two sets of recommendations based on these 
 
           differences.  Mr. Birkenholtz has many subjective 
 
           complaints of pain and limited function associated 
 
           with pain.  The medical records document mostly 
 
           unremarkable objective findings on examination, 
 
           diagnostic testing, and functional capacity 
 
           testing.
 

 
 
 
 
 
 
 
           
 
              I have reviewed the information that you have 
 
           provided to me.  My recommendations are the 
 
           following:
 
           
 
           1. If only considering patient's subjective 
 
              complaints:
 
           
 
              A. The permanent restrictions of:
 
                *No lifting greater than 10 lbs
 
                *No repetitive bending
 
                *Activities as tolerated
 
           
 
              B. The restrictions started on 6/3/94
 
           
 
              C. Job classification - physical demand level 
 
           of sedentary 
 
           
 
              D. Mr. Birkenholtz can return to work at 
 
              Anderson Erickson as a Bottle Filler 
 
              with appropriate modifications:
 
           
 
                *Limiting work activities to below shoulder 
 
              and above knee levels.
 
                *No lifting greater than 10 lbs from floor level
 
                *Sit/stand as appropriate
 
           
 
           2. If only considering objective medical findings:
 
           
 
              A. Mr. Birkenholtz can work at a job 
 
           classification with a physical demand 
 
           level of medium.
 
           
 
              B. Mr. Birkenholtz can return to work at 
 
              Anderson Erickson as a Bottle Filler
 
           
 
              C. The appropriate restrictions would be:
 
           
 
                *Unlimited sitting and standing
 
                *Lifting 30-50 lbs above knee and below shoulder 
 
                     level
 
                *Pushing and pulling 30-50 lbs above knee and 
 
                     below shoulder level
 
                *Climbing is not an issue
 
                *Twisting is not an issue
 
           
 
             I hope this information will be useful to you.  
 
           It is important to remember that Mr. Birkenholtz's 
 
           diagnosis of chronic lower back pain has not 
 
           changed.  It is a diagnosis based on subjective 
 
           complaints.  It is often difficult to adequately 
 
           outline exact activity restrictions, so as 
 
           physicians we tend to overly guard our demand on 
 
           the patient.  We also tend to set activity 
 
           restriction based on patient's own report of 
 
           activity tolerance.  I believe that this is true 
 
           in Mr. 
 
           Birkenholtz's case.  I also believe that on review 
 
           of the medical records and the information 
 
           supplied that Mr. Birkenholtz's job classification 
 
           should be medium physical demand level rather than 
 
           the present sedentary physical demand level that I 
 
           set in June, 1994.
 
         
 
         (Ex. B, pp. 1 & 2)
 
           
 

 
 
 
 
 
 
 
           Dr. Smith testified during the hearing.   He opined 
 
         that if claimant confined himself to the restrictions listed 
 
         in 2 C above, then claimant would be able to work as a 
 
         Bottle Filler within the plant.  Dr. Smith emphasized that 
 
         claimant was capable of working.  Dr. Smith also testified 
 
         that claimant was capable of lifting more than 30 pounds.
 
           
 
           Scott Maly, a vocational rehabilitation consultant, 
 
         testified that certain accommodations could be made by 
 
         defendant employer if claimant would return to work.   Mr. 
 
         Maly testified that claimant had certain transferable skills 
 
         available to him but that 20 percent of the available labor 
 
         market was lost to claimant because of his low back 
 
         condition.  Mr. Maly testified that claimant was precluded 
 
         from the heavy and very heavy classifications of work.  Mr. 
 
         Maly also testified that most jobs which were available to 
 
         claimant were in the range of $7.50 to $8.00 per hour. 
 
           
 
           During the hearing, claimant testified that he 
 
         remodeled his home and that he expended $30,000 for a home 
 
         auto repair shop.  Claimant testified he works on 6 to 8 
 
         repair projects per year.  Some of his projects have 
 
         included overhauling an engine, working on a Ford tractor, 
 
         and overhauling a lawn mower.  Claimant also testified that 
 
         he fabricated his own work bench and he built wood cabinets.  
 
         He testified that in a three year time period, he had earned 
 
         $4,000 from repair work.
 
           
 
           Claimant admitted that he preferred not to work outside 
 
         the confines of his own shop.  He indicated he wanted to be 
 
         self- employed.  He testified his preference was based on 
 
         his ability to manage his own pain.  According to claimant, 
 
         he was able to rest and move about the shop without 
 
         prolonged sitting and standing.
 
           
 
           During cross-examination, claimant admitted that he was 
 
         modifying his claim with respect to the March 15, 1990 work 
 
         injury.  He admitted there was no permanent impairment to 
 
         his leg.  He indicated the only issue involved was the rate 
 
         of any weekly benefits.
 
           
 
           Also during cross-examination, claimant testified 
 
         regarding the March 9, 1990 work injury.  He admitted there 
 
         were no permanent restrictions imposed upon him with respect 
 
         to his neck.  
 
         However, claimant maintained he was paid at an incorrect 
 
         rate and that he was still claiming permanency benefits 
 
         despite the lack of physician imposed restrictions.
 
           
 
           Greg Wilkinson, plant manager at Anderson Erickson, 
 
         testified.  He indicated that he had always tried to 
 
         accommodate employees in the workplace.  He testified that 
 
         he tried to modify claimant's position as a N-5 Bottle 
 
         Filler and that he had never refused to accommodate claimant 
 
         within the plant.  Mr. Wilkinson testified he had made 
 
         reasonable accommodations.  He was a credible witness.
 
         
 
                          CONCLUSIONS OF LAW
 
           
 
           The first issues to address deal with the work injury 
 
         of March 9, 1990.  There is no evidence in the record before 
 
         this deputy which would substantiate a permanent partial 
 
         disability.  There are no permanent restrictions imposed 
 
         upon claimant as a result of this work injury.  There are no 
 
         permanent impairment ratings for this work injury.  The 
 
         parties stipulated the corrected weekly benefit rate is 
 

 
 
 
 
 
 
 
 
 
         $331.68 per week.  Claimant was paid at the rate of $303.49.  
 
         He is entitled to the difference of $28.19 per week for the 
 
         following periods:
 
           
 
                    July 25, 1990 through August 12, 1990
 
           
 
                    October 1, 1990 through October 6, 1990.
 
           
 
           The next issues deal with the work injury date of March 
 
         15, 1990.  Claimant admitted there is no permanency with 
 
         respect to this particular claim.  Rate is the only 
 
         remaining issue.  The parties have stipulated that the 
 
         correct weekly benefit rate is $325.49 per week.  The 
 
         evidence establishes that claimant was paid at the weekly 
 
         benefit rate of $303.49.  Claimant is entitled to the 
 
         difference of $22.00 for the following periods:
 
           
 
                    February 26, 1992 through March 8, 1992.
 
           
 
           The final group of issues deals with the work injury of 
 
         April 30, 1992.  Claimant indicated he had submitted a 
 
         request for reimbursement of mileage expenses for medical 
 
         visits.  He indicated the sum was in the amount of $1300.00.  
 
         Defendants admitted they would reimburse claimant for all 
 
         legitimate medical mileage expenses.
 
           
 
           The next issue to address is the issue of healing 
 
         period benefits.  Claimant alleges he is entitled to 
 
         benefits from February 4, 1994 through May 13, 1994 and from 
 
         June 3, 1994 through the present.  Defendants maintain they 
 
         have paid claimant for all the healing period benefits.  The 
 
         evidence indicates claimant was paid weekly benefits for the 
 
         following periods:
 
           
 
                   May 1, 1992 through June 21, 1992
 
           
 
                   August 14, 1992 through August 27, 1992
 
           
 
                   August 30, 1992 through October 22, 1992
 
           
 
                   October 22, 1992 through November 6, 1992
 
           
 
                   June 1, 1993 through July 19, 1993.
 
           
 
           Section 85.34(1) provides that healing period benefits 
 
         are payable to an injured worker who has suffered permanent 
 
         partial disability until:  (1) the worker has returned to 
 
         work; (2) the worker is medically capable of returning to 
 
         substantially similar employment; or (3) the worker has 
 
         achieved maximum medical recovery.  The healing period can 
 
         be considered the period during which there is a reasonable 
 
         expectation of improvement of the disabling condition.  See 
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
         App. 1981).  Healing period benefits can be interrupted or 
 
         intermittent.  Teal v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
           
 
           The evidence supports a conclusion that claimant is 
 
         entitled to healing period benefits for the periods from:
 
           
 
                    May 1, 1992 through June 21, 1992
 
           
 
                    August 14, 1992 through August 27, 1992
 
           
 
                    June 30, 1992 through October 21, 1992
 
           
 
                    October 22, 1992 through November 6, 1992
 

 
 
 
 
 
 
 
           
 
                    June 1, 1993 through July 19, 1993  
 
           
 
                    February 7, 1994 through June 3, 1994
 
           
 
           As of June 3, 1994, Dr. Smith opined that claimant 
 
         could return to work with certain restrictions.  The 
 
         restrictions included:
 
           
 
           1.  Return to work
 
               a.  No lifting over 10 lbs.;
 
               b.  No repetitive bending;
 
               c.  Activities as tolerated.
 
               d.  At MMI
 
           2.  Return to clinic in one month.
 
           3.  Continue exercises.
 
         Functional Impairment Rating:  5% of body as a whole.
 
         
 
         (Ex. 43, p. 49)
 
           
 
           Dr. Smith opined that claimant had reached maximum 
 
         medical improvement with respect to the injury on April 30, 
 
         1992.  The deputy is in agreement with the opinion of Dr. 
 
         Smith.  He was a credible witness.
 
           
 
           The next issue to address is the issue dealing with 
 
         permanency.  The parties dispute the nature and extent of 
 
         any permanency.
 
           
 
           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 
 
         R. Co., 219 Iowa 587, 258 N.W. 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 
 
         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.
 
           
 
           Claimant has received functional impairment ratings 
 
         from three physicians.  The ratings vary from 5 percent to 
 
         22 percent.  Dr. Smith has imposed some lifting 
 
         restrictions.  Claimant is precluded from lifting more than 
 
         10 pounds.  There is some discrepancy on the part of Dr. 
 
         Smith whether the 10 pound lifting restriction is permanent.  
 
         Dr. Riggins has imposed lifting restrictions of 20 pounds.  
 
         Claimant is also precluded from repetitive bending and from 
 
         twisting with his lower back (Ex. 20, p. 25; Ex. 44, p. 52).  
 

 
 
 
 
 
 
 
 
 
         The restrictions are rather severe, no matter which opinion 
 
         is accepted.
 
           
 
           Defendants have been and they are currently willing to 
 
         accommodate claimant in the work environment.  They are to 
 
         be commended for their willingness to cooperate with 
 
         claimant.  They have found meaningful employment within the 
 
         plant setting for 
 
         claimant.  This deputy is overwhelmingly convinced of the 
 
         genuine desire defendants have to provide suitable work for 
 
         claimant.  Members of management are willing to continue 
 
         employment for claimant.  Current job placement as a Bottle 
 
         Filler is available to claimant.
 
           
 
           Claimant does not want to return to the dairy.  He 
 
         desires self-employment as an auto mechanic.  Claimant has 
 
         expended substantial sums of money in designing and building 
 
         a shop on his own property.  He has been tinkering with 
 
         motors for several years, although the income he has 
 
         realized, is minimal.
 
           
 
           This deputy questions whether claimant will be able to 
 
         sustain himself as a self-employed mechanic. Claimant is 
 
         unable to work on vehicles which have electronic computer 
 
         systems.  He has no training in the computer area.  
 
           
 
           Claimant has investigated vocational rehabilitation, 
 
         but he is adamant.  He wants to work within his own shop.  
 
         It is questionable whether claimant will pursue other areas 
 
         of training, or whether claimant will attempt to finish his 
 
         requirements for a bachelors' degree.  He has approximately 
 
         two years of college.  Claimant is of at least average 
 
         intelligence.  He is articulate.  He has approximately 20 
 
         more years before he is able to retire.  If claimant does 
 
         not return to the dairy, it will be difficult for him to 
 
         find outside employment, unless he pursues some other 
 
         training.
 
           
 
           At the time of his work injury, claimant was earning 
 
         $10.86 per hour.  The hourly rate is about the highest 
 
         paying position which claimant has ever held.  This deputy 
 
         doubts whether claimant will be able to earn the same hourly 
 
         wage as a self-employed mechanic, given claimant's current 
 
         training.
 
           
 
           Therefore, after reviewing all of the evidence, after 
 
         having observed the witnesses, and after listening to the 
 
         testimony, it is the determination of the undersigned that 
 
         claimant is entitled to a 30 percent permanent partial 
 
         disability which commenced as of June 4, 1994.
 
           
 
           Rate is an issue with respect to the work injury of 
 
         April 30, 1992.  The undersigned is persuaded by the 
 
         argument of claimant.  The correct weekly benefit rate is 
 
         $331.61 per week.  Claimant is entitled to be compensated at 
 
         this rate for all weekly benefits due to him.
 
         
 
                                 ORDER
 
           
 
           THEREFORE, IT IS ORDERED:
 
           
 
           With respect to file number 955799, claimant is 
 
         entitled to healing period benefits at the rate of three 
 
         hundred thirty-one and 68/l00 dollars ($331.68) for the 
 
         period from July 25, 1990 through August 12, 1990 and from 
 
         October 1, 1990 through October 6, 1990.
 

 
 
 
 
 
 
 
 
 
           
 
           With respect to file number 1026343, claimant is 
 
         entitled to healing period benefits at the rate of three 
 
         hundred twenty-five and 49/l00 dollars ($325.49) for the 
 
         period from February 26, 1992 through March 8, 1992.
 
           
 
           With respect to file number 1015924, claimant is 
 
         entitled to healing period benefits for the periods from May 
 
         1, 1992 through June 21, 1992; August 14, 1992 through 
 
         August 27, 1992; June 30, 1992 through October 21, 1992; 
 
         October 22, 1992 through November 6, 1992; June 1, 1993 
 
         through July 19, 1993; and February 7, 1994 through June 3, 
 
         1994 and said benefits shall be paid at the weekly benefit 
 
         rate of three hundred thirty-one and 61/l00 dollars 
 
         ($331.61) per week.
 
           
 
           With respect to file number 1015924, claimant is 
 
         entitled to one hundred fifty (150) weeks of permanent 
 
         partial disability benefits commencing on June 4, 1994 and 
 
         payable at the weekly benefit rate of three hundred thirty-
 
         one and 61/l00 dollars ($331.61) per week.
 
           
 
           Defendants shall pay unto claimant medical mileage 
 
         pursuant to section 85.27.
 
           
 
           Defendants shall take credit for all disability 
 
         benefits previously paid to claimant.
 
           
 
           Accrued benefits are to be paid in a lump sum together 
 
         with statutory interest at the rate of ten percent (10%) per 
 
         year.  
 
           
 
           Costs are taxed to defendants pursuant to rule 343 IAC 
 
         4.33.
 
           
 
           Defendants shall file a claim activity report as 
 
         requested by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
          Signed and filed this ____ day of November, 1994.
 
         
 
         
 
         
 
         
 
                             ______________________________     
 
                             MICHELLE A. McGOVERN
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
             
 
 
 
 
 
 
 
 
 
 
 
 
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         6959 University
 
         Des Moines  IA  50311-1540
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         801 Grand Ave  STE 3700
 
         Des Moines  IA  50309-2727
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1803
 
                                     Filed November 23, 1994
 
                                     LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
               
 
         JAY S. ANDERBERG,   
 
                                          File No. 1028769
 
          Claimant, 
 
                                        A R B I T R A T I O N
 
         vs.        
 
                                          D E C I S I O N
 
         WHITE CONSOLIDATED  
 
         INDUSTRIES, INC.,    
 
               
 
          Employer, 
 
          Self-Insured,  
 
          Defendant.     
 
         ___________________________________________________________
 
         
 
         5-1108
 
         Idiopathic fall held not compensable as claimant failed to 
 
         show that the work environment aggravated the effects of his 
 
         fall.
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LARRY JOHNSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 956008
 
            WAGNERS PRINTERS, INC.,  
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CONTINENTAL LOSS ADJUSTING    
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 6, 1993, at 
 
            Davenport, Iowa.  This is a proceeding in arbitration where 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as result of an alleged injury occurring on July 
 
            28, 1990.  The record in the proceeding consists of the 
 
            testimony of the claimant and joint exhibits 1 through 7.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are whether there is any 
 
            causal connection as to any permanent disability to either 
 
            his right foot or right leg as to claimant's July 28, 1990 
 
            work injury.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant is 45 years old and was working for the 
 
            defendant- employer on July 28, 1990, when he fell on his 
 
            foot and injured himself.  He described his injury and said 
 
            he hurt his foot, ankle and leg and had a knot on his right 
 
            leg approximately one-half way between his ankle and knee 
 
            joint.  Claimant said his right leg ligaments were injured 
 
            also.
 
            
 
                 Claimant described the pain he had which he still 
 
            experiences in his foot, ankle and up to his knee.  Claimant 
 
            said his leg, ankle and foot get sore after he is on them 
 
            after an eight hour shift.
 
            
 
                 Claimant was prescribed an ankle brace that came up to 
 
            his leg and covered his calf to an area below his knee.
 
            
 
                 Claimant went through work hardening which involved 
 
            ultrasound and this helped him including helping the knot 
 
            swelling on his leg.
 
            
 
                 Claimant said he still feels an ache or pain in his 
 

 
            
 
            Page   2
 
            
 
            
 
            foot, ankle, and leg area where the knot and tendons were 
 
            affected.  Claimant contends he will wear the brace now if 
 
            he is going to lift heavy items.
 
            
 
                 Claimant acknowledges that Dr. Motto saw him the most 
 
            and was his treating doctor.  He last saw this doctor in 
 
            February 1991.  Claimant further acknowledged that Dr. Motto 
 
            released him in January 1991 to return to work.  Claimant 
 
            contends he still has symptoms and his right leg is numb 
 
            sometimes when he awakes in the morning.  
 
            
 
                 Claimant has seen a Dr. Riggins per his attorney's 
 
            request and saw Dr. Kreiter once per defendants' request, 
 
            since he last saw Dr. Motto in January 1991.
 
            
 
                 Dr. E. A. Motto, M.D.'s, notes are joint exhibit 1, 
 
            pages 1 through 6.  There is no reference to claimant's leg 
 
            until November 1, 1990.  The doctor refers to the claimant's 
 
            right ankle or foot mainly.  Thereafter he also refers to 
 
            claimant's lateral malleolus.  
 
            
 
                 The physical therapist's notes of August 23, 1990, 
 
            refer to claimant's right ankle edema and said the entire 
 
            right ankle and foot are reddish purple.  This exhibit 2, 
 
            page 7 through 12 refers to claimant's ankle and foot and 
 
            also to swelling present anterior to the lateral malleolus.  
 
            
 
                 Joint exhibit 3, page 19 is the doctor's prescription 
 
            for claimant to get the custom hinged prosthesis for his 
 
            ankle.
 
            
 
                 This is obviously the brace that claimant referred to 
 
            that covered his calf.  It is understandable that this type 
 
            brace must be attached to the calf or leg to be affective in 
 
            helping the foot or ankle.  This does not mean it is a leg 
 
            brace unless it is found the ankle is part of the leg and 
 
            not the foot.  
 
            
 
                 Dr. R. L. Kreiter, M.D.'s, reports of March 2, 1992, 
 
            refer to claimant's right ankle and foot except in his 
 
            September 16, 1993 letter, in which he is giving a 
 
            permanency rating per employer's request.  The doctor opined 
 
            that claimant has 10 percent disability to claimant's lower 
 
            extremity.  It is this report that is aiding the dispute as 
 
            to whether claimant's injury is to his leg or ankle or foot 
 
            or all three (Joint Exhibit 5, p. 23-24; Joint Exhibit 7, p. 
 
            29). 
 
            
 
                 Dr. Keith Riggins, M.D., on June 7, 1993, referred to 
 
            claimant's right ankle and circumference of the ankle at the 
 
            malleoli which is one-half inch longer.  He opined a total 
 
            of 22 percent impairment of claimant's lower extremity.  
 
            
 
                 As to whether claimant has any permanent impairment, 
 
            the defendants contend not and claimant contends there is.  
 
            Dr. Motto, defendants' authorized treating doctor had not 
 
            seen claimant since February 1991, when he released 
 
            claimant.  Although he was the longest treating doctor, he 
 
            has no current opinion on claimant's impairment.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
                 Defendants obtained Dr. Kreiter, who opined in 
 
            September 1993, that claimant had a 10 percent permanent 
 
            impairment to his lower extremity.  Kreiter opined a 10 
 
            percent lower extremity disability which the undersigned 
 
            believes the doctor means impairment.  The undersigned 
 
            presumed that the defendants requested this doctor rather 
 
            than Dr. Motto to make an impairment rating because he is 
 
            more of a specialist or is known to be more favorable to 
 
            defendants' position.
 
            
 
                 Claimant's doctor, Dr. Riggins opined the 22 percent of 
 
            claimant's right lower extremity.  
 
            
 
                 The next dispute is whether the injury is to claimant's 
 
            right foot, right ankle or right leg.  All three are right 
 
            lower extremities.  This agency's experience shows that 
 
            doctors too often refer to the extremities whether it be the 
 
            foot, ankle, leg, hand, wrist, arm or shoulder.  This too 
 
            often confuses the issue and creates an issue within an 
 
            issue like we have herein.  An additional report was not 
 
            requested by either or both sides to nail these doctors 
 
            down, as to whether he means the leg, ankle, or foot 
 
            specifically.  This writer can only guess that neither side 
 
            wanted to take the chance of what a doctor might say and 
 
            rather leave it with some confusion hoping the deputy 
 
            industrial commissioner may decide in one's favor thereby 
 
            granting greater or lessor weekly benefits.
 
            
 
                 The undersigned finds claimant's injury is to his foot 
 
            and ankle and that the ankle is considered the foot.  This 
 
            is analogous to the current agency decision holding a wrist 
 
            is part of the hand and not the arm.
 
            
 
                 Understandably when one has a foot injury there is 
 
            soreness in the leg on use of the foot and ankle.  The 
 
            doctors consistently refer to claimant's foot and ankle and 
 
            not his leg but they opine a right lower extremity injury.  
 
            The undersigned realizes it is often hard to understand a 
 
            wrist is the hand and not an arm and likewise how the ankle 
 
            is part of the foot and not the leg.  The undersigned 
 
            believes agency precedence has established this at the 
 
            current time.
 
            
 
                 The undersigned further finds that because he believes 
 
            the doctors are referring to the ankle (which is the foot as 
 
            set out above) and also specifically referred to the foot, 
 
            that they are synonymously called the foot and ankle which 
 
            are lower extremities and conversion is not necessary.  
 
            
 
                 The undersigned therefore finds that claimant has a 15 
 
            percent permanent impairment of his foot and is entitled to 
 
            22.5 weeks of benefits at the rate of $327.94.
 
            
 
                 The undersigned further finds that claimant's work 
 
            injury caused the above impairment and claimant's 
 
            entitlement to weekly compensation that is set out above.  
 
            The undersigned further finds that he believes that the more 
 
            recent impairment rating should be given more weight as the 
 
            claimant had not seen his original treating doctor for in 
 
            excess of two years.  The undersigned also was more 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            impressed with Dr. Riggins' report and his more detailed 
 
            examination and appeared to do more to determine the 
 
            functional impairment of claimant's foot.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 It is further concluded that claimant's work injury of 
 
            July 28, 1990, caused claimant to incur a 15 percent 
 
            permanent impairment to his right foot entitling him to 22.5 
 
            permanent partial disability benefits.  
 
            
 
                                      
 
            
 

 
            
 
            Page   5
 
            
 
                                    ORDER
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay to claimant twenty-two point 
 
            five (22.5) weeks of permanent partial disability benefits 
 
            at the rate of three hundred twenty-seven and 94/100 dollars 
 
            ($327.94) beginning October 8, 1990.
 
            
 
                 Defendants shall pay any accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 Defendants, if applicable, shall receive credit against 
 
            the award for any weekly benefits previously paid.
 
            
 
                 Defendants shall pay interest on benefits awarded as 
 
            provided in section 85.30.  
 
            
 
                 Defendants shall pay costs of the action pursuant to 
 
            rule 343 IAC 4.33. 
 
            
 
                 Defendants shall file claim activity reports pursuant 
 
            to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Keokuk, IA  52632-1087
 
            
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. 3rd Street
 
            Davenport, IA  52802-1550
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                           5-1108, 5-1803
 
                                           Filed December 15, 1993
 
                                           Bernard J. O'Malley
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LARRY JOHNSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 956008
 
            WAGNERS PRINTERS, INC.,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            CONTINENTAL LOSS ADJUSTING    
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            5-1108, 5-1803
 
            Found claimant incurred a work injury that resulted in 
 
            claimant being entitled to 22.5 weeks of permanent partial 
 
            disability due to a 15 percent impairment to his right 
 
            foot/ankle.
 
            
 
            5-1803
 
            Found that the ankle is considered the foot and not the leg.  
 
            Also concluded the doctors also meant foot/ankle when they 
 
            at times referred to claimant's right lower extremity.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            LARRY HOCH,                     :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :       File Nos. 956038
 
                                            :                 976617
 
            BRIDGESTONE/FIRESTONE,          :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            CIGNA,                          :
 
                                            :
 
                 Insurance Carrier,         :
 
                                            :
 
            and                             :
 
                                            :
 
            SECOND INJURY FUND,             :
 
                                            :
 
                 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 July 13, 1992 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
                 Defendants were obligated to file a first report of 
 
            injury under Iowa law.  They failed to do so.  This omission 
 
            was pointed out to defendants at the time of the pre-trial 
 
            conference.  The hearing assignment order also ordered 
 
            defendants to file a first report of injury, and specified 
 
            that a failure to do so by the commencement of the hearing 
 
            would result in defendants' evidence and activity being cut 
 
            off.  Although defendants allege they complied with the 
 
            order, there is no first report of injury on file.  
 
            Defendants have not produced a file-stamped copy showing 
 
            compliance, or any other documentation corroborating their 
 
            assertion of compliance.  The sanction imposed was 
 
            appropriate.
 
            
 
                 Defendants were also obligated to provide claimant with 
 
            a list of exhibits that would be offered at the hearing.  
 
            Defendants' exhibit list, containing only a reference to all 
 
            medical reports exchanged, was wholly inadequate to allow 
 
            claimant to prepare to meet defendants' evidence at the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            hearing.  Defendants failed to comply with the rules of this 
 
            agency and the hearing assignment order in regard to the 
 
            exhibit list.  In addition, regardless of whether the list 
 
            complied with the order and our rules, the order cutting off 
 
            defendants' evidence and activity prohibited the 
 
            introduction of defendants' exhibits.
 
            
 
                 Defendants shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            
 
                 Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Ms. Ann L. Clark
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2908
 
            Filed January 29, 1993
 
            Byron K. Orton
 
            DRR
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            LARRY HOCH,                     :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :       File Nos. 956038
 
                                            :                 976617
 
            BRIDGESTONE/FIRESTONE,          :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            CIGNA,                          :
 
                                            :
 
                 Insurance Carrier,         :
 
                                            :
 
            and                             :
 
                                            :
 
            SECOND INJURY FUND,             :
 
                                            :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            2908
 
            Deputy's sanction of cutting off evidence and activity for 
 
            failure to comply with order to file a first report of 
 
            injury and for failing to comply with obligation to exchange 
 
            exhibit list affirmed.  Defendants failed to file a first 
 
            report of injury, and were ordered to do so by the 
 
            pre-hearing deputy prior to the hearing.  No first report 
 
            was on file when the hearing commenced.  Defendants 
 
            maintained they had mailed the first report, but had no 
 
            corroboration of this. 
 
            The exhibit list submitted by defendants recited merely all 
 
            medical reports exchanged.  This was held inadequate and 
 
            even if the sanction of cutting off evidence and activity 
 
            were not imposed, no exhibits would be allowed.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         COREY JOHNSON,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 956356
 
         NORTHCOTE LOCKER,     
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         U S F & G,       
 
                     
 
              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 
 
         February 24, 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 June, 1993.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Larry G. Wilson
 
         Mr. Donald G. Beattie
 
         Attorneys at Law
 
         204 8th St. SE
 
         Altoona, Iowa 50009
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed June 24, 1993
 
                                                 Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            COREY JOHNSON,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 956356
 
            NORTHCOTE LOCKER,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            U S F & G,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            COREY JOHNSON,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 956356
 
            NORTHCOTE LOCKER,             :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            USF & G,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Corey 
 
            Johnson, claimant, against Northcote Locker, employer, here
 
            inafter referred to as Northcote, and United Fire & Casu
 
            alty, insurance carrier, defendants, for workers' compensa
 
            tion benefits as a result of an alleged injury on June 28, 
 
            1990.  On January 26, 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 prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On June 28, 1990 claimant received an injury aris
 
            ing out of and in the course of employment with Northcote.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits only from February 7, 1991 through March 28, 
 
            1991 and defendants agree that he was not working during 
 
            this time. 
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $160.00; he was single; and he was 
 
            entitled to one exemption.  Therefore, claimant's weekly 
 
            rate of compensation is $103.70 according to the Industrial 
 
            Commissioner's published rate booklet for this injury. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 5.  Medical benefits are not in dispute.
 
            
 
                                      ISSUE
 
            
 
                 The only issue submitted by the parties or determina
 
            tion in this proceeding was the extent of claimant's enti
 
            tlement to 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 
 
            defendants 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 worked for Northcote, a meat locker plant, as 
 
            a manual laborer.  He started part-time while in high school 
 
            and moved to a full time at $4.00 per hour in the summer of 
 
            1990.  His duties consisted of assisting in meat processing, 
 
            clean up and delivery of meat products using both a company 
 
            vehicle and his personal automobile.  Claimant's unrebutted 
 
            testimony established that this job was very physical, 
 
            requiring a lot of lifting.
 
            
 
                 Claimant's work injury occurred as a result of an auto 
 
            accident during delivery of meat products.  While driving 
 
            through a small town, claimant's vehicle collided with a 
 
            mini-Van that had pulled out in front of him.  Claimant was 
 
            driving approximately 25 mph at the time of the accident.  
 
            Claimant's testimony established that he initially injured 
 
            his neck and upper back in the accident.  Claimant also 
 
            injured his jaw but did not immediately notice the symptoms 
 
            due to his other problems until approximately a week later.
 
            
 
                 After the accident, claimant was taken to a local hos
 
            pital emergency room and treated for neck strain with a cer
 
            vical collar and pain medication.  Following hospital treat
 
            ment, claimant was treated for cervical strain and the jaw 
 
            problems by a general practitioner, E. J. McKeever, M.D.  
 
            The cervical sprain treatment consisted of medication and 
 
            physical therapy using hot packs, ultrasound, massage, mobi
 
            lization and use of a TENS unit, an electrical device to 
 
            reduce pain.  Claimant was also taken off all work during 
 
            this treatment.
 
            
 
                 When claimant failed to improve, he was referred for 
 
            examination by Jerome G. Bashara, M.D., an orthopaedic sur
 
            geon.  After testing, Dr. Bashara likewise diagnosed only 
 
            cervical strain.  Claimant remained off work under the 
 
            direction of both Drs. McKeever and Bashara until February 
 
            28, 1991 at which time he was released by Dr. McKeever for 
 
            return to work but only under physical activity restric
 
            tions.  It is found that claimant reached maximum healing at 
 
            that time.  Although Dr. McKeever, in an office note of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            November 30, 1990, stated that claimant had plateaued, his 
 
            treatment continued until the release to work.
 
            
 
                 The work injury of June 28, 1990 is found to be a cause 
 
            of a 10 percent permanent impairment to the body as a whole.  
 
            Also, as a result of the injury, claimant is permanently 
 
            unable to perform physical activities consisting of repeti
 
            tive or excessive use of his head and neck and lifting over 
 
            25 pounds above shoulder level.  These findings are based 
 
            upon the views of the treating physicians, Drs. McKeever and 
 
            Bashara, who are more familiar with claimant's clinical pro
 
            file than the contrary views of a one time evaluator 
 
            retained by defendants in this case.  Also, claimant and his 
 
            mother stated that this one time evaluator stated to them 
 
            that claimant would not be able to ever again return to 
 
            physical labor work.  This is quite inconsistent with the 
 
            evaluator's written report which states that there is no 
 
            permanent impairment.  Consequently, the views of this 
 
            evaluator are not credible.
 
            
 
                 Based upon his credible and unrebutted testimony, it is 
 
            found that claimant had no prior work injuries or permanent 
 
            impairments.
 
            
 
                 Due to his physical limitations, claimant's medical 
 
            condition prevents him from returning to his former job or 
 
            any other manual labor work requiring claimant to violate 
 
            his work restrictions.  Claimant is very young at 20 years 
 
            of age.  Claimant has a high school education.  Claimant's 
 
            past employment consists of only part-time, low wage work 
 
            prior to the injury.  Since his release to return to work, 
 
            claimant attended a brief training session and has worked as 
 
            an asbestos remover at $7-7.50 per hour.  However, this work 
 
            is intermittent.  After extensive applications in the area 
 
            of his residence, he is unable to secure stable full time 
 
            employment at the present time.  Claimant established that a 
 
            significant portion of his problems in finding employment 
 
            today is due to this work injury and resulting restrictions.  
 
            However, the poor state of the Iowa economy is also to 
 
            blame.  Given his youth, claimant has some potential for 
 
            vocational rehabilitation.  However, his potential for 
 
            future education has not been evaluated.  He is interested 
 
            in additional education if he can find some financial assis
 
            tance.  However, despite this retraining potential, he 
 
            remains disabled today with an uncertain future.
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of June 28, 
 
            1990 is a cause of a 30 percent loss of earning capacity.  
 
            
 
                    
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            CONCLUSIONS OF LAW
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause of permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, 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.  Examina
 
            tion 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 intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional impairment as a result of the injury; and inability 
 
            because of the injury to engage in employment for which the 
 
            employee is fitted.  Loss of earnings caused by a job trans
 
            fer for reasons related to the injury is also relevant.  See 
 
            Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 30 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 150 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 30 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                  Claimant's entitlement to permanent partial disability 
 
            also entitles him to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            he 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 reached maximum healing on February 28, 1991.  
 
            Healing period benefits will be awarded accordingly.  
 
            Claimant seeks such benefits in this proceeding only from 
 
            February 7, 1991.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ORDER
 
            
 
                 1.  Defendants shall pay to claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at a 
 
            rate of one hundred three and 70/l00 dollars ($103.70) per 
 
            week from February 29, 1991.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from February 7, 1991 through February 28, 1991, at 
 
            the rate of one hundred three and 70/l00 dollars ($103.70) 
 
            per week.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on unpaid weekly ben
 
            efits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Larry G. Wilson
 
            Mr. Donald G. Beattie
 
            Attorneys at Law
 
            204 - 8th Street SE
 
            Altoona, Iowa  50009
 
            
 
            Mr. Frank Harrison
 
            Attorney at Law
 
            2700 Grand Avenue  STE 111
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed February 24, 1993
 
                      LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            COREY JOHNSON, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 956356
 
            NORTHCOTE LOCKER,   :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            USF & G,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
                      
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            ROBERT H. FENNEMA,    
 
                                                  File No. 956442
 
                 Claimant,   
 
                                                    A P P E A L
 
            vs.         
 
                                                  D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 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.
 
            
 
                                        ISSUES
 
            
 
            The issue on appeal is:  Whether claimant's injury on July 
 
            20, 1990 was a qualifying loss under Iowa Code section 85.64 
 
            for second injury fund benefits.
 
            
 
                                  FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 10, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 Claimant was born on January 31, 1938, and attended 
 
            high school but did not graduate.  Claimant's primary work 
 
            activity during the past 34 years has been as a truck 
 
            driver.  
 
            
 
                 In January 1989 claimant was working as a truck driver 
 
            for Van Top Industries in Holstein, Iowa.  His job involved 
 
            loading, unloading and driving.  On January 25, 1989, 
 
            claimant fell on the ice while working for employer and 
 
            fractured his right femur.  He was initially treated at 
 
            Buena Vista County Hospital in Storm Lake, Iowa.  He was 
 
            diagnosed with a comminuted intertrochanteric fracture 
 
            extending into the subtrochanteric space of the right femur.  
 
            On January 21, 1989, he was transferred to Marian Health 
 
            Center in Sioux City, Iowa.  Upon admission he was seen by 
 
            J.H. Walston, M.D.  He noted a past history of diabetes and 
 
            osteomyelitis in the left foot.  An examination demonstrated 
 
            a shortening in rotation of the right lower extremity which 
 
            was quite painful.  On January 26, 1989, D.G. Paulsrud, 
 
            M.D., performed an open reduction and internal fixation of 
 
            the fracture.  Claimant was discharged on February 7, 1989 
 
            (exhibit 12).
 
            
 
                 The record clearly indicates that claimant's right hip 
 
            fracture affected his right lower extremity.  An examination 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            by Michael T. O'Neal, M.D., orthopedic surgeon, on August 
 
            11, 1989, revealed back and lower extremity pain and sensory 
 
            changes consistent with a diffuse neuropathy (ex. 9).
 
            
 
                 An evaluation by Leonard E. Weber, M.D., a neurologist, 
 
            on September 22, 1989, revealed that claimant's right leg 
 
            was about one inch shorter than his left and he limped on 
 
            the right while walking.  Dr. Weber indicated that 
 
            claimant's right femoral neuropathy was secondary to femoral 
 
            nerve damage related to the right femur fracture on January 
 
            25, 1989.  Dr. Weber imposed physical limitations such as 
 
            prohibition against repetitive squatting, standing and 
 
            climbing due to quadriceps weakness (ex. 8).
 
            
 
                 A work capacity evaluation performed on December 12, 
 
            1989, by Karen Brown, R.P.T., revealed claimant's gait to be 
 
            extremely antalgic with a severe list to the left.  Test 
 
            results indicated a five-minute maximum tolerance to static 
 
            standing and a 30-minute tolerance for active standing.  
 
            Claimant demonstrated an ability to walk for as much as 20 
 
            minutes but had severe Trendelenberg gait to the left.  He 
 
            was unable to squat with evident limited bending ability.  
 
            He lacked good balance and was unable to perform lower 
 
            lifting tasks with proper mechanics due to limitation of 
 
            movement in his right hip and knee (ex. 7).  
 
            
 
                 On May 8, 1990, Dr. Paulsrud stated that claimant 
 
            should not perform work activities which required prolonged 
 
            walking or standing, repetitive stooping and bending, and 
 
            lifting over 30 pounds (ex. 17).
 
            
 
                 Dr. Weber re-examined claimant on May 29, 1990.  Dr. 
 
            Weber's impression after this examination was an 
 
            intertrochanteric fracture of the right femur with a 
 
            secondary right femoral neuropathy and continued discomfort 
 
            on the medial aspect of the right thigh with sensory changes 
 
            in the anterior and lateral aspects of the right thigh as 
 
            well as diminution of the right knee reflex, and some very 
 
            mild right quadriceps weakness secondary to the right 
 
            femoral neuropathy.  Dr. Weber gave claimant a six percent 
 
            impairment due to right femoral neuropathy and restricted 
 
            claimant to frequently lifting no more than 20 pounds and 
 
            avoidance of repetitive forward flexion extension movements 
 
            of the back (ex. 19).  
 
            
 
                 Claimant returned to work for employer as a truck 
 
            driver in June 1990.  He worked with a partner and did not 
 
            assist in loading or lifting.  On July 20, 1990, he was 
 
            involved in a severe motor vehicle accident when a wheel 
 
            came off the truck and he struck another vehicle.  He 
 
            sustained a dislocated right shoulder.  Although claimant 
 
            was hospitalized as a result of this accident, the hospital 
 
            records are not in evidence.  Upon release, claimant sought 
 
            ongoing treatment with J.H. Walston, M.D., his family 
 
            physician (ex. 1).
 
            
 
                 On December 20, 1990, employer sent claimant to Joel T. 
 
            Cotton, M.D., for evaluation.  Claimant presented with 
 
            complaints of right shoulder pain and an inability to reach 
 
            behind his back or fully raise his arm.  He also presented 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with persistent numbness in the third, fourth and fifth 
 
            fingers of his right hand and pain on lifting and decreased 
 
            right grip.  On examination, he had normal strength in his 
 
            upper extremities with no loss of strength in the right arm 
 
            either proximally or distally, including the deltoid muscles 
 
            and intrinsic muscles of the hand.  His neurological 
 
            examination was normal except for diminished sensation in 
 
            the lateral aspect of the right hand and forearm.  His 
 
            primary complaint originated from the shoulder joint itself.  
 
            The right arm weakness was secondary to pain in the shoulder 
 
            joint (ex. 4).
 
            
 
                 Claimant was examined by Bernard L. Kratochvil, M.D., 
 
            on February 20, 1991.  Dr. Kratochvil concluded that 
 
            claimant had a 15 percent permanent partial impairment of 
 
            the right upper extremity as a result of his shoulder 
 
            injury, a 10 percent permanent partial impairment of the 
 
            lower back and a 30 percent permanent partial impairment of 
 
            the right lower extremity as a result of the fractured femur 
 
            (ex. 20).
 
            *****
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 10, 1993 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 The issue to be determined is whether claimant is 
 
            entitled to Second Injury Fund benefits.
 
            
 
                 Iowa Code 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 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).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The Second Injury Fund argues that they have no 
 
            liability in this case because claimant [has not suffered] 
 
            ***** a qualifying second injury.  Defendant's contention is 
 
            without merit.
 
            The injury to claimant's right shoulder and neck for which 
 
            he received an injury to the body as a whole, nevertheless 
 
            qualifies as a loss or loss of use of another such member 
 
            because it affected and caused a loss of use of claimant's 
 
            right arm.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
            467 (Iowa 1990); Second Injury Fund of Iowa v. Neelans, 436 
 
            N.W.2d 355 (Iowa 1989).  
 
            
 
                 As discussed above, the record clearly establishes that 
 
            claimant's ***** dislocated right shoulder affected the use 
 
            of his right arm.  ***** Claimant's shoulder injury has 
 
            resulted in restricted use of his right hand and arm (exs. 
 
            4, 5 and 20).   [Dr. Cotton found that claimant had 
 
            diminished sensation in the right hand and forearm, although 
 
            claimant's primary problem was pain in the shoulder joint.  
 
            Dr. Kratochvil's impairment rating of the right upper 
 
            extremity and his other findings show that claimant has 
 
            suffered loss of use of his right arm as well as having 
 
            shoulder problems.]  Accordingly, Second Injury Fund 
 
            benefits are triggered. *****
 
            *****
 
            [The Second Injury Fund has raised no other issue on appeal.  
 
            Therefore, the calculation and determination of the amount 
 
            of the Fund's liability need not be discussed.]
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                    ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That the Second Injury Fund shall pay claimant one 
 
            hundred nine point four six weeks (109.56) permanent partial 
 
            disability benefits at the rate of two hundred forty-two and 
 
            99/100 dollars ($242.99) per week.  The Second Injury Fund's 
 
            liability begins at the end of the employer's liability for 
 
            weekly benefits for the second injury (right arm and 
 
            shoulder).  
 
            
 
                 That the Second Injury Fund pay accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That the Second Injury Fund pay interest on unpaid 
 
            weekly benefits beginning on the date of this decision.  
 
            Braden, 459 N.W.2d 467, 473.
 
            That the Second Injury Fund shall pay the costs of this 
 
            matter including the transcription of the hearing.  
 
            
 
                 That the Second Injury Fund file claim activity reports 
 
            as required by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Ms. Kay E. Dull
 
            Attorney at Law
 
            PO Box 3107
 
            Sioux City, Iowa  51102
 
            
 
            Mr. James Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-3202
 
                                                Filed March 17, 1994
 
                                                Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            ROBERT H. FENNEMA,    
 
                                                 File No. 956442
 
                 Claimant,   
 
                                                   A P P E A L
 
            vs.         
 
                                                 D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            
 
            5-3202
 
            Claimant found entitled to Second Injury Fund benefits.  He 
 
            suffered a first loss of use to the right leg and a second 
 
            loss of use to the right arm.  Claimant's injury was a 
 
            dislocated shoulder but it resulted in loss of use of his 
 
            right arm.  Loss of use of a qualifying member triggers Fund 
 
            liability.  Claimant found 60 percent industrially disabled.  
 
            The Second Injury Fund was credited with 190.54 weeks of 
 
            permanent partial disability benefits, as a result of 
 
            settlement agreements between claimant and employer with 
 
            respect to each injury.  The liability of the Second Injury 
 
            Fund after credit for 190.54 weeks was 109.46 weeks.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT H FENNEMA,             :
 
                                          :       File No. 956442
 
                 Claimant,                :       
 
                                          :   S E C O N D  I N J U R Y
 
            vs.                           :    
 
                                          :         F U N D
 
            SECOND INJURY FUND OF IOWA,   :      
 
                                          :     D E C I S I O N
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            H. Fennema, claimant, against Second Injury Fund of Iowa, 
 
            defendant, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on July 
 
            20, 1990.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on November 2, 
 
            1993, in Sioux City, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  The documentary evidence identified 
 
            in the record consists of claimant's exhibits 1 through 14 
 
            and 16 through 24 and defendant's exhibits A through D and F 
 
            through G.
 
            
 
                                      ISSUE
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated November 2, 1993, the only issue presented for 
 
            resolution is whether claimant is entitled to Second Injury 
 
            Fund benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on January 31, 1938, and attended 
 
            high school but did not graduate.  Claimant's primary work 
 
            activity during the past 34 years has been as a truck 
 
            driver.  
 
            
 
                 In January 1989 claimant was working as a truck driver 
 
            for Van Top Industries in Holstein, Iowa.  His job involved 
 
            loading, unloading and driving.  On January 25, 1989, 
 
            claimant fell on the ice while working for employer and 
 
            fractured his right femur.  He was initially treated at 
 
            Buena Vista County Hospital in Storm Lake, Iowa.  He was 
 
            diagnosed with a comminuted intertrochanteric fracture 
 
            extending into the subtrochanteric space of the right femur.  
 
            On January 21, 1989, he was transferred to Marian Health 
 
            Center in Sioux City, Iowa.  Upon admission he was seen by 
 
            J.H. Walston, M.D.  He noted a past history of diabetes and 
 

 
            
 
            Page   2
 
            
 
            
 
            osteomyelitis in the left foot.  An examination demonstrated 
 
            a shortening in rotation of the right lower extremity which 
 
            was quite painful.  On January 26, 1989, D.G. Paulsrud, 
 
            M.D., performed an open reduction and internal fixation of 
 
            the fracture.  Claimant was discharged on February 7, 1989 
 
            (exhibit 12).
 
            
 
                 The record clearly indicates that claimant's right hip 
 
            fracture affected his right lower extremity.  An examination 
 
            by Michael T. O'Neal, M.D., orthopedic surgeon, on August 
 
            11, 1989, revealed back and lower extremity pain and sensory 
 
            changes consistent with a diffuse neuropathy (ex. 9).
 
            
 
                 An evaluation by Leonard E. Weber, M.D., a neurologist, 
 
            on September 22, 1989, revealed that claimant's right leg 
 
            was about one inch shorter than his left and he limped on 
 
            the right while walking.  Dr. Weber indicated that 
 
            claimant's right femoral neuropathy was secondary to femoral 
 
            nerve damage related to the right femur fracture on January 
 
            25, 1989.  Dr. Weber imposed physical limitations such as 
 
            prohibition against repetitive squatting, standing and 
 
            climbing due to quadriceps weakness (ex. 8).
 
            
 
                 A work capacity evaluation performed on December 12, 
 
            1989, by Karen Brown, R.P.T., revealed claimant's gait to be 
 
            extremely antalgic with a severe list to the left.  Test 
 
            results indicated a five-minute maximum tolerance to static 
 
            standing and a 30-minute tolerance for active standing.  
 
            Claimant demonstrated an ability to walk for as much as 20 
 
            minutes but had severe Trendelenberg gait to the left.  He 
 
            was unable to squat with evident limited bending ability.  
 
            He lacked good balance and was unable to perform lower 
 
            lifting tasks with proper mechanics due to limitation of 
 
            movement in his right hip and knee (ex. 7).  
 
            
 
                 On May 8, 1990, Dr. Paulsrud stated that claimant 
 
            should not perform work activities which required prolonged 
 
            walking or standing, repetitive stooping and bending, and 
 
            lifting over 30 pounds (ex. 17).
 
            
 
                 Dr. Weber re-examined claimant on May 29, 1990.  Dr. 
 
            Weber's impression after this examination was an 
 
            intertrochanteric fracture of the right femur with a 
 
            secondary right femoral neuropathy and continued discomfort 
 
            on the medial aspect of the right thigh with sensory changes 
 
            in the anterior and lateral aspects of the right thigh as 
 
            well as diminution of the right knee reflex, and some very 
 
            mild right quadriceps weakness secondary to the right 
 
            femoral neuropathy.  Dr. Weber gave claimant a 6 percent 
 
            impairment due to right femoral neuropathy and restricted 
 
            claimant to frequently lifting no more than 20 pounds and 
 
            avoidance of repetitive forward flexion extension movements 
 
            of the back (ex. 19).  
 
            
 
                 Claimant returned to work for employer as a truck 
 
            driver in June 1990.  He worked with a partner and did not 
 
            assist in loading or lifting.  On July 20, 1990, he was 
 
            involved in a severe motor vehicle accident when a wheel 
 
            came off the truck and he struck another vehicle.  He 
 
            sustained a dislocated right shoulder.  Although claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            was hospitalized as a result of this accident, the hospital 
 
            records are not in evidence.  Upon release, claimant sought 
 
            ongoing treatment with J.H. Walston, M.D., his family 
 
            physician (ex. 1).
 
            
 
                 On December 20, 1990, employer sent claimant to Joel T. 
 
            Cotton, M.D., for evaluation.  Claimant presented with 
 
            complaints of right shoulder pain and an inability to reach 
 
            behind his back or fully raise his arm.  He also presented 
 
            with persistent numbness in the third, fourth and fifth 
 
            fingers of his right hand and pain on lifting and decreased 
 
            right grip.  On examination, he had normal strength in his 
 
            upper extremities with no loss of strength in the right arm 
 
            either proximally or distally, including the deltoid muscles 
 
            and intrinsic muscles of the hand.  His neurological 
 
            examination was normal except for diminished sensation in 
 
            the lateral aspect of the right hand and forearm.  His 
 
            primary complaint originated from the shoulder joint itself.  
 
            The right arm weakness was secondary to pain in the shoulder 
 
            joint (ex. 4).
 
            
 
                 Claimant was examined by Bernard L. Kratochvil, M.D., 
 
            on February 20, 1991.  Dr. Kratochvil concluded that 
 
            claimant had a 15 percent permanent partial impairment of 
 
            the right upper extremity as a result of his shoulder 
 
            injury, a 10 percent permanent partial impairment of the 
 
            lower back and a 30 percent permanent partial impairment of 
 
            the right lower extremity as a result of the fractured femur 
 
            (ex. 20).
 
            
 
                 Claimant entered into a settlement agreement with 
 
            employer and insurance carrier on both claims.  As to the 
 
            January 29, 1989 injury, claimant settled for 90.54 weeks of 
 
            permanent partial disability benefits.  As to the July 20, 
 
            1990 injury, claimant settled for 100 weeks of permanent 
 
            partial disability benefits.  Thus, the Second Injury Fund 
 
            is entitled to a credit for 190.54 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The issue to be determined is whether claimant is 
 
            entitled to Second Injury Fund benefits.
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 

 
            
 
            Page   4
 
            
 
            
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 The Second Injury Fund argues that they have no 
 
            liability in this case because claimant does not suffer a 
 
            qualifying first injury or a qualifying second injury.  
 
            Defendant's contentions ware without merit.
 
            
 
                 The injury to claimant's right shoulder and neck for 
 
            which he received an injury to the body as a whole, 
 
            nevertheless qualifies as a loss or loss of use of another 
 
            such member because it affected and caused a loss of use of 
 
            claimant's right arm.  Second Injury Fund of Iowa v. Braden, 
 
            459 N.W.2d 467 (Iowa 1990); Second Injury Fund of Iowa v. 
 
            Neelans, 436 N.W.2d 355 (Iowa 1989).  
 
            
 
                 As discussed above, the record clearly establishes that 
 
            claimant's right hip fracture affected the use of his right 
 
            leg and his dislocated right shoulder affected the use of 
 
            his right arm.  Medical doctors have imposed restrictions on 
 
            claimant's ability to use his lower extremity (exs. 1, 8, 
 
            9).  Claimant's shoulder injury has resulted in restricted 
 
            use of his right hand and arm (exs. 4, 5 and 20).  
 
            Accordingly, Second Injury Fund benefits are triggered and 
 
            an assessment of industrial disability is appropriate in 
 
            this case.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 

 
            
 
            Page   5
 
            
 
            
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant is 55 years old.  Claimant is near normal 
 
            retirement age.  This tends to reduce the amount of earning 
 
            capacity he has lost as a result of his injury.  Rowe v. 
 
            Nichols-Homeshield, Inc., file number 935936 (App. Dec. 
 
            August 20, 1993).  Claimant attended school through the 
 
            twelfth grade but never graduated.  He is foreclosed from 
 
            performing his prior work as a truck driver.  Claimant has 
 
            not worked since his July 20, 1990 injury.  He applied for 
 
            and received social security disability benefits on November 
 
            30, 1990.  His motivation to be retrained or re-enter the 
 
            job market is questionable.  He has not made a serious 
 
            effort to be employed and there is a paucity of evidence to 
 
            determine what claimant can and cannot do within the 
 
            boundaries of his restrictions and disability.  Schofield v. 
 
            Iowa Beef Processors, Inc., II Iowa Industrial Commissioner 
 
            Report 334, 336 (1981).
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit from a serious attempt to find work in the 
 
            competitive employment market.  Hild v. Natkin & Co., I Iowa 
 
            Industrial Commissioner Report 144 (App. Dec. 1981).  
 
            Employers are responsible for the reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 

 
            
 
            Page   6
 
            
 
            
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Claimant's industrial disability is reduced by his lack 
 
            of interest in vocational rehabilitation and returning to 
 
            the competitive job market.  
 
            
 
                 After carefully considering all the factors of 
 
            industrial disability and employing agency expertise, the 
 
            undersigned concludes that claimant is 60 percent 
 
            industrially disabled.  This is equivalent to 300 weeks.  
 
            The Second Injury Fund's liability is reduced by the 
 
            combined losses of claimant's right leg (90.54 weeks) and 
 
            claimant's right arm (100 weeks).  The total reduction is 
 
            190.54 weeks.  The Second Injury Fund's liability is 109.46 
 
            weeks of benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That the Second Injury Fund shall pay claimant one 
 
            hundred nine point four six weeks (109.56) permanent partial 
 
            disability benefits at the rate of two hundred forty-two and 
 
            99/100 dollars ($242.99) per week.  The Second Injury Fund's 
 
            liability begins at the end of the employer's liability for 
 
            weekly benefits.  Finneman v. Wilson Foods Corp., file 
 
            numbers 834479/913590 (App. Dec. March 17, 1993).
 
            
 
                 That the Second Injury Fund pay accrued weekly benefits 
 
            in a lump sum.
 
            
 
                 That the Second Injury Fund pay interest on unpaid 
 
            weekly benefits beginning on the date of this decision.  
 
            Braden, 459 N.W.2d 467, 473.
 
            
 
                 That the Second Injury Fund pay all costs pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 That the Second Injury Fund file claim activity reports 
 
            as required by this agency pursuant to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Ms Kay E. Dull
 
            Attorney at Law
 
            PO Box 3107
 
            Sioux City, Iowa  51102
 
            
 
            Mr. James Christenson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
                                              53202
 
                                              Filed November 10, 1993
 
                                              Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT H FENNEMA,   
 
                                               File No. 956442
 
                 Claimant,        
 
                                           S E C O N D  I N J U R Y
 
            vs.           
 
                                                  F U N D
 
            SECOND INJURY FUND OF IOWA,         
 
                                               D E C I S I O N
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            53202
 
            Claimant found entitled to Second Injury Fund benefits.  He 
 
            suffered a first loss of use to the right leg and a second 
 
            loss of use to the right arm.  Claimant found 60 percent 
 
            industrially disabled.  The Second Injury Fund was credited 
 
            with 190.54 weeks of permanent partial disability benefits 
 
            as a result of settlement agreements between claimant and 
 
            employer with respect to each injury.  The liability of the 
 
            Second Injury Fund after credit for 190.54 weeks was 109.46 
 
            weeks.