BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIO H. RODRIGUEZ-CARBALLO,  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 957279
 
            QUALITY WINE COMPANY, INC.,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Mario Rodriguez-Carballo, against his former 
 
            employer, Quality Wine Company, Inc., and its insurance 
 
            carrier, Wausau Insurance Company, defendants.  The case was 
 
            heard on August 18, 1993 at the office of the industrial 
 
            commissioner in Des Moines, Iowa.  The record consists of 
 
            the testimony of claimant.  The record also consists of 
 
            exhibits numbered 1 through 61.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are whether claimant is 
 
            entitled to any healing period or permanent partial 
 
            disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 43-years-old.  He was born and educated in 
 
            Cuba.  He graduated from high school.  Post high school, 
 
            claimant attended agronomy school for four and one half 
 
            years.  Claimant also attended x-ray technician's school in 
 
            Cuba for three years.  He was a member of the Cuban military 
 
            until 1970 when he was placed in a criminals' camp by the 
 
            Castro government.  While in prison claimant was forced to 
 
            work in the sugar cane fields.  Claimant remained in prison 
 
            for eight months.  From 1974 through 1980, claimant worked 
 
            as an x-ray technician in Cuba.  Claimant has a daughter by 
 
            his first wife.  The daughter resides in Spain.  Claimant 
 
            had no children with his second wife.
 
            
 
                 In 1980, claimant left Cuba for political reasons.  He 
 
            and his other family members were persecuted by members of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Castro's government.  Claimant traveled to Spain.  He 
 
            remained there for six or seven months.  From Spain, 
 
            claimant journeyed to the United States where he resided in 
 
            Los Angeles for a period of time.
 
            
 
                 Eventually, in 1984, claimant settled in Des Moines.  
 
            He married his third wife who is a French and Spanish 
 
            teacher.  They now have two minor children.  Claimant was 
 
            unemployed from 1980 through 1984.  Claimant became a United 
 
            States citizen in September of 1987.
 
            
 
                 After arriving in Des Moines, claimant commenced 
 
            employment with Acme Printing.  His duties varied.  He 
 
            delivered goods, cleaned the facilities, worked in the 
 
            warehouse, and he lifted boxes of paper which weighed 40 to 
 
            50 pounds each.  Claimant was compensated at the rate of 
 
            $4.00 per hour and he held this position for one year.
 
            
 
                 In 1985, claimant left his employ with Acme for a 
 
            position with Economy Forms.  Claimant was hired to operate 
 
            equipment in the plant.  He was responsible for feeding 30 
 
            to 50 pounds of steel into a machine which was operated by 
 
            robotics.  He earned $8.00 per hour.  Claimant terminated 
 
            his employment in 1987 in order to open his own retail 
 
            liquor store.
 
            
 
                 Claimant operated his own liquor business until 
 
            December 31, 1988.  He was forced to close his enterprise 
 
            for financial reasons.  Claimant testified he filed 
 
            bankruptcy as a result of his inability to compete with 
 
            larger retail establishments.
 
            
 
                 In July of 1989, claimant began working for Quality 
 
            Wine Company.  Miriam Howuer hired claimant to work as a 
 
            material handler in a warehouse.  His duties included 
 
            tagging bottles of wine, putting bottles onto a conveyor 
 
            belt, and lifting cases of liquor which weighed from 30 to 
 
            50 pounds.
 
            
 
                 Claimant earned $8.00 to $8.50 per hour.  After several 
 
            months, claimant was laid off from work.  He received his 
 
            unemployment insurance benefits in May of 1990.  
 
            
 
                 His employer called claimant back to work in August of 
 
            1990.  On the day after he returned to work, claimant 
 
            sustained a work-related injury to his low back.  Claimant 
 
            testified he was lifting a case of wine from a pallet and 
 
            placing the case onto a conveyor belt.  While he was lifting 
 
            the case, he twisted his body to the left and he felt very 
 
            sharp pains on both sides of his back.  Claimant testified 
 
            there were two co-employees who were witnesses to the work 
 
            injury.
 
            
 
                 Claimant continued to work despite the pain he was 
 
            encountering.  After a period of time, claimant reported to 
 
            the front office where he requested the opinion of a medical 
 
            doctor.  Ms. Sue Laendhr referred claimant to Anthony 
 
            Sciorrotta, M.D.  Dr. Sciorrotta prescribed muscle relaxers, 
 
            pain pills, physical therapy, hot baths, and ultra-sound.  
 
            Dr. Sciorrotta opined that:  "He, in fact, has a L5 S1 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            disprotrusion [sic] and a mild degree of L5 S1 degeneration 
 
            for age...."  (Exhibit page 7)
 
            
 
                 The conservative treatment did not alleviate claimant's 
 
            pain and he returned to Dr. Sciorrotta who, in turn, 
 
            referred claimant to Kirk Green, M.D.  Dr. Green also 
 
            prescribed conservative therapy after he had ordered x-rays 
 
            and an MRI.  Claimant testified that the relief which he had 
 
            received as a result of Dr. Green's treatment was only 
 
            temporary in nature and claimant testified he experienced 
 
            severe pain in his back, down his left leg, and into his 
 
            left foot and toes. 
 
            
 
                 Claimant obtained a second opinion from Santiago 
 
            Garcia, M.D.  Dr. Garcia is claimant's personal physician.  
 
            The physician diagnosed claimant as having "[l]umbosacral 
 
            strain."
 
            
 
                 Epidural injections were attempted but they did not 
 
            result in relieving claimant's pain.  In November of 1990, 
 
            Dr. Green opined the following relative to claimant's course 
 
            of treatment:
 
            
 
                 IMPRESSION:
 
            Low back pain, secondary to degenerative disc 
 
            disease, unimproved with treatment to date.
 
            
 
                 RECOMMENDATIONS:
 
            At this point I have essentially exhausted my 
 
            treatment options.  Discussed the option of 
 
            bracing as a last resort.  Have recommended 
 
            referral to the physiatrist for ongoing treatment 
 
            in hopes they can have better success at his 
 
            treatment than I did.  He will follow up prn.
 
            
 
            (Ex. p. 26)
 
            
 
                 One month later, Dr. Green's notes for December 10, 
 
            1990 reflected the subsequent note:  "[P]er work comp 
 
            carrier, [t]hey will not authorize referral to Dr. 
 
            DeGravelle's at this time.  w/c Will contact us if wish to 
 
            procede [sic] c referral.
 
            
 
                 Several months later, Dr. Green's notes indicated:
 
            
 
                    Mr. Rodriguez apparently was not authorized for 
 
                 our recommend referral to Dr. DeGravelles in 
 
                 November of 1990.  We've been contacted requesting 
 
                 an impairment rating.  It would be my impression 
 
                 based on the AMA guidelines that Mr. Rodriguez 
 
                 indeed has a permanent impairment and it would be 
 
                 my opinion that rating would be 8% of the whole 
 
                 body.
 
            
 
            (Ex. p. 27)
 
            
 
                 Claimant was also examined by William F. Boulden, M.D., 
 
            another orthopedic specialist.  In his report of December 5, 
 
            1990, Dr. Boulden opined:
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 [R]eviewed his MRI and it does not show a 
 
                 herniated disc.  There is degenerative bulging 
 
                 disc in the mid-line that is not causing any type 
 
                 of neural impingement.
 
            
 
                    I feel that most of his pain is mechanical in 
 
                 nature with lack of good rehabilitation.  The 
 
                 patient has gotten into a situation that he feels 
 
                 there is a lot of problems with his back, and he 
 
                 is going to be a tough patient to crack, in the 
 
                 fact that we have to convince him that he needs to 
 
                 be rehabilitated and we will have to work hard 
 
                 with him.
 
            
 
                    We will start him on the program and I will see 
 
                 him back in two weeks.  This will consist of 
 
                 mobilization to regain better spinal mobility, 
 
                 TENS unit to control some of his pain, and then 
 
                 advance him into a stabilization program.
 
            
 
            (Ex. p. 32)
 
            
 
                 Approximately one month later, Dr. Boulden tracked 
 
            claimant's progress with respect to his rehabilitation.  Dr. 
 
            Boulden authored a report dated January 9, 1991.  He wrote:
 
            
 
                    I have talked to the therapist today, and the 
 
                 patient is getting better movement, but he is 
 
                 still quite fixated on his pain.  I am going to 
 
                 have him see the physical therapist today, for an 
 
                 evaluation for work conditioning.  Basically, I am 
 
                 concerned if he is still showing significant pain 
 
                 fixation, that we will probably have to do some 
 
                 work on pain management.  If that is not taken 
 
                 care of, then trying to get more aggressive in his 
 
                 therapy, will probably not be very effective.
 
            
 
                    I will re-evaluate the patient in about one 
 
                 month.
 
            
 
            (Ex. p. 34)
 
            
 
                 Dr. Boulden then recommended a pain management program 
 
            for claimant.  He wrote in his report of January 29, 1991:
 
            
 
                    Therefore, there was quite some concern to 
 
                 begin with, about the program, whether the patient 
 
                 could tolerate it or not.  It is looking like this 
 
                 patient is going to need some form of pain 
 
                 management to help him tolerate his pain more, 
 
                 before the work hardening program will be 
 
                 beneficial.
 
            
 
                    Therefore, we have little else to offer from a 
 
                 conservative management at this time, other than 
 
                 pain management.
 
            
 
            (Ex. p. 35)
 
            
 
                 Several weeks later, Dr. Boulden opined that claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            had reached maximum medical improvement as of January 29, 
 
            1991.  The physician related the following:
 
            
 
                    It is our medical opinion that, effective, 
 
                 1-29-91, there was no further orthopaedic care 
 
                 that could be helpful for this patient.  I feel 
 
                 the patient's permanent disability rating is 7 
 
                 percent of the lumbar spine.
 
            
 
            (Ex. p. 36)
 
            
 
                 Later Dr. Boulden revised his opinion relative to 
 
            claimant's condition to reflect the following:
 
            
 
                    I have reviewed the Iowa City evaluation which 
 
                 I think spoke in itself about the fact that the 
 
                 patient should get on with his life.  We do feel 
 
                 that his degenerative disc disease is not that 
 
                 significant in keeping him from working.  I feel 
 
                 that a lot of his problem is psychological as 
 
                 reported by Iowa City as pain fixation.
 
            
 
                    It is very interesting, after reviewing the 
 
                 tape, that the patient seems to be able to 
 
                 function quite well in his own surroundings.  As 
 
                 stated before, I do not feel that his degenerative 
 
                 disc disease is that significant that it would 
 
                 preclude him from returning back to work.  
 
                 Specifically, if there is light duty type of work, 
 
                 then I would have no problem with him returning 
 
                 back to work as long as he does not have to do 
 
                 repetitive bending and twisting with his back.  In 
 
                 other words, we want him to use proper 
 
                 biomechanics.
 
            
 
            (Ex. p. 37)
 
            
 
                 Dr. Boulden ordered a rehabilitation program.  Thomas 
 
            A. Wheatley, L.P.T., directed the treatment.  Mr. Wheatley 
 
            stressed improving claimant's range of motion, pain 
 
            management and flexibility.
 
            
 
                 Claimant was also examined by Sam L. Graham, Ph.D.  He 
 
            diagnosed claimant's condition as:
 
            
 
                    Diagnosis:  Axis I - Psychological/behavioral 
 
                 factors affecting a physical condition.  Axis II - 
 
                 Deferred.  Axis III - Back pain disorder per the 
 
                 assessment of Dr. Boulden.
 
            
 
                    It is my impression that Mr. Rodrigrez [sic] 
 
                 would benefit from an intensive 
 
                 behavioral/psychological approach to pain 
 
                 management with an emphasis on relaxation training 
 
                 and appropriate biofeedback to assist in enhancing 
 
                 his skills to deal with pain.  I will see him on 
 
                 an intensive basis with the intent of having him 
 
                 to the point that he can function more 
 
                 appropriately in work-hardening in one week.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (Ex. p. 47)
 
            
 
                 Dr. Graham worked with claimant in the art of pain 
 
            management techniques.  His report to the insurance carrier 
 
            indicated the following:
 
            
 
                 He was referred to me by Tom Bower, licensed 
 
                 physical therapist, and I saw him intensively for 
 
                 one week to work on psychological/behavioral pain 
 
                 management techniques.  He was introduced to 
 
                 progressive muscle relaxation, instructed in-home 
 
                 practice, given information on the interaction of 
 
                 physiological and psychological variables in pain, 
 
                 and EMG training to assist him in reducing resting 
 
                 muscle tension identified in the lumbar paraspinal 
 
                 muscles were conducted.  Mr. Rodriguez was able to 
 
                 significantly reduce his resting muscle tension in 
 
                 the lumbar paraspinal region while sitting.  He 
 
                 could reduce it some standing but only if he 
 
                 supports himself with his hands.
 
            
 
                    The initial plan had been to send him back to 
 
                 work-hardening in one week but he continued to 
 
                 insist that he was incapable of participating in 
 
                 more than one hour on a daily basis.  At this 
 
                 point my only recommendation would be to give him 
 
                 instructions to begin a walking program on his own 
 
                 and to gradually increase his tolerance until he 
 
                 can stand enough time up to four hours a day.  I 
 
                 did discuss with him this date increasing his 
 
                 walking on his own.  It would be beneficial to him 
 
                 to have that supervised in some manner.  I would 
 
                 be willing to see him on a weekly basis to work 
 
                 with him to gradually increase his activity if you 
 
                 would like me to do that.  I have encouraged him 
 
                 to continue with the relaxation training and 
 
                 stress management techniques I have instructed him 
 
                 in.  I have not scheduled him to return to my 
 
                 office and will wait until I have an opportunity 
 
                 to discuss this with you on the telephone before I 
 
                 do such.
 
            
 
            (Ex. p. 49)
 
            
 
                 Claimant was also evaluated by Thomas Bower, L.P.T., 
 
            for the purposes of determining whether work hardening was 
 
            appropriate.  Mr. Bower noted the following in his report of 
 
            January 14, 1991:
 
            
 
                    The findings today, specifically of the West 
 
                 Tool Sort, shows clear-cut evidence of symptom 
 
                 magnification present.  This patient is going to 
 
                 be a very difficult patient to manage through the 
 
                 work hardening program without the implementation 
 
                 of outside pain management.  We have discussed 
 
                 this with the insurance company today and they 
 
                 have given us the okay to involve our psychologist 
 
                 who is on staff to proceed with this patient as 
 
                 well.  We will set that appointment up and we will 
 
                 be beginning the work hardening program on January 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 15, 1991.  The prognosis of this patient is 
 
                 extremely guarded at this point based on the 
 
                 studies performed today.
 
            
 
            (Ex. p. 52)
 
            
 
                 Claimant went to the Spine Diagnostic and Treatment 
 
            Center at the University of Iowa Hospitals and Clinics for 
 
            an evaluation to determine at what level he could 
 
            participate in a rehabilitation program.  He was seen by a 
 
            variety of specialists.  A report was written by Tom Lanes, 
 
            M.S., C.R.C., and James Weinstein, M.D.  In the report the 
 
            members of the team determined that:
 
            
 
                    In our medical evaluation we feel that we have 
 
                 very good news for you.  Following a thorough 
 
                 evaluation of all information and physical 
 
                 examination, our medical staff is convinced that 
 
                 you are absolutely solid, stable and healed from 
 
                 all previous injuries and surgical procedures.  We 
 
                 certainly realize that you have a significant 
 
                 amount of back pain and that this pain is very 
 
                 real.  However, we do not feel that the pain is 
 
                 doing any harm or damage whatsoever at this time 
 
                 and that it is very important for you to begin to 
 
                 significantly increase function, trust your back, 
 
                 and begin to recondition yourself.  The concept of 
 
                 hurt is not harm is a difficult concept to 
 
                 understand, but in our experience, it is 
 
                 absolutely critical in being able to significantly 
 
                 increase your activities and get back to the goals 
 
                 you have set for yourself.  
 
            
 
                    Therefore, based on your input and our 
 
                 evaluation, we have the following recommendations:
 
            
 
                 1) At the present time, we do not feel the Low 
 
                    Back Pain Rehabilitation Program is appropriate 
 
                    for you.  This decision was based on a 
 
                    consensus of the entire spine team that met 
 
                    with you.  The spine team all felt that you did 
 
                    not feel the rehabilitation program would 
 
                    benefit you, due to the fact that you had 
 
                    engaged in similar activities or programs in 
 
                    the past which had been unable to assist you in 
 
                    improving your physical functioning.  Because 
 
                    of these reasons, you stated that you did not 
 
                    wish to be involved in the rehabilitation 
 
                    program at this time.
 
            
 
                 2) We do recommend that you begin immediately with 
 
                    a home exercise program which has been 
 
                    discussed with you here.  This program is 
 
                    designed specifically to help increase 
 
                    strength, flexion and endurance, and to help 
 
                    you to get back to the goals that you have set 
 
                    for yourself.
 
            
 
                 3) For workers' compensation purposes, we feel 
 
                    that you have reached maximum healing as of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                    5/29/91.  Your impairment rating for worker's 
 
                    compensation purposes is 5% body as a whole, 
 
                    based on the work-related injury sustained 
 
                    8/14/90.
 
            
 
            (Ex. pp. 57-58)
 
            
 
                 Debra S. Parrott, L.P.T., made certain recommendations 
 
            relative to claimant's rehabilitation.  She opined:
 
            
 
                 RECOMMENDATIONS:
 
            
 
                 1. His average energy cost for employment should 
 
                    be less than 2.0 METs for an eight hour day.  
 
                    This range is suitable for sedentary light 
 
                    tasks.  This is based on his present endurance 
 
                    level.
 
            
 
                 2. He was encouraged to begin a walking program.  
 
                    The following program was given:
 
                 
 
                    MODE:  walk or any other low-impact aerobic activity 
 
                    INTENSITY:  as fast a pace as can be tolerated 
 
                    FREQUENCY:  daily
 
            
 
                    DURATION:  begin with 5 to 6 minutes of 
 
                    continuous walking, resting 1 to 5 minutes and 
 
                    repeating the sequence 2 times.  Progress to 20 
 
                    minutes without stopping.
 
            
 
            (Ex. p. 60)
 
            
 
                 A clinical psychologist at the Spine Diagnostic and 
 
            Treatment Center, Eugene F. Gauron, Ph.D., opined the 
 
            subsequent opinion relative to claimant's physical condition 
 
            and mental psyche:
 
            
 
                    Mario Rodriguez started our interview with 
 
                 quite a display of pain behavior.  He let it be 
 
                 known that he was hurting from the day's 
 
                 activities.  Mario evidently is pretty well 
 
                 convinced about several matters.  He knows for 
 
                 sure that he has a serious injury (which is 
 
                 permanent).  He gave quite a knowledgeable 
 
                 presentation, showing me his injury on the x-rays.  
 
                 He knows for sure that all the standard treatments 
 
                 he has received so far have not helped him.  This 
 
                 is leading him to conclude that, like his injury, 
 
                 his pain too may be permanent.  A further 
 
                 conviction he has is that nothing, short of 
 
                 possible unusual treatments, can be done to 
 
                 relieve his pain.  His tried and true method for 
 
                 relief is a Philipine back massage procedure that 
 
                 was taught to his wife.  He does have some hope 
 
                 that Chinese acupuncture might do him some good.
 
            
 
                    One statement he made, which I believe, adds to 
 
                 the pathos of his situation, "I will do everything 
 
                 I can to get better."  How can he reconcile this 
 
                 willingness with his pessimism derived from 
 
                 nothing having worked?  He cannot even consider 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 the Rehabilitation Program because he knows for a 
 
                 fact that he has tried something like it and it 
 
                 doesn't work.  That conclusion, as are all others, 
 
                 is unshakable.  Meanwhile, he describes his life 
 
                 as a question mark, his future as uncertain.  He 
 
                 sees himself as totally unable to work as he is.  
 
                 I'm not sure I like where he appears to be headed.
 
            
 
            (Ex. p. 68)
 
            
 
                 Claimant's physical condition and his motivation to 
 
            improve his condition is also addressed by Mr. Lanes in his 
 
            report of May 29, 1991:
 
            
 
                    VOCATIONAL IMPRESSION:  Mr. Rodriguez would not 
 
                 be a good candidate for our 2-week, out-patient 
 
                 Rehabilitation Program at the University of Iowa.  
 
                 He indicates that he feels he was forced to attend 
 
                 today's evaluation inappropriately by his worker's 
 
                 compensation insurance company, as a result of 
 
                 their inability to settle his worker's 
 
                 compensation claim.  He states he has absolutely 
 
                 no interest in attending the rehabilitation 
 
                 program for several reasons.  He states he is not 
 
                 able to engage in the physical activities involved 
 
                 and that this has been demonstrated by past lack 
 
                 of benefit while in a work-hardening program.  He 
 
                 also indicates that he has had past coping skills 
 
                 training in relaxation, concentration, 
 
                 biofeedback, etc., and that these activities did 
 
                 not assist him in managing his pain.  Mr. 
 
                 Rodriguez appears to feel that he is managing his 
 
                 pain to the best possible degree on his own, that 
 
                 only he is truly able to understand his pain 
 
                 situation, and that involvement in the 
 
                 rehabilitation program would not be likely to 
 
                 assist him in reaching his goals.  Because this 
 
                 gentleman does not appear to believe that any 
 
                 vocational option would be appropriate for him at 
 
                 present, I have no vocational recommendations for 
 
                 this gentleman.
 
            
 
            (Ex. p. 70)
 
            
 
                 Philip L. Ascheman, Ph.D., performed a psychological 
 
            evaluation after having met claimant on January 27, 1992 and 
 
            January 28, 1992.  The evaluation was made pursuant to a 
 
            request from a member of the Disability Determination 
 
            Services Bureau.  In his report, Dr. Ascheman wrote in 
 
            relevant portion:
 
            
 
                    In my opinion based on the clinical interview 
 
                 and objective testing, particularly the MMPI, it 
 
                 is my opinion that this individual meets the 
 
                 criteria for somatoform pain disorder as described 
 
                 in the DSM-III-R.  Specifically, he has shown a 
 
                 preoccupation with pain for at least six months 
 
                 and in the presence of a related organic 
 
                 pathology, the complaint of pain and resulting 
 
                 social and occupational impairment is presumed to 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 be in excess of what might be expected from the 
 
                 physical findings.  Thus, this individual is 
 
                 likely to hyper-focus on his pain causing him to 
 
                 be further impaired.  Focusing on his pain appears 
 
                 to have caused a marked restriction of activities 
 
                 of daily living and in maintaining social 
 
                 functioning in that this individual has reported 
 
                 near isolation from people other than his 
 
                 immediate family as a result of his pain.  He has 
 
                 indicated that he has given up a number of social 
 
                 activities because he feels that it would be 
 
                 socially inappropriate to be continually moving 
 
                 around from chair to chair, etc.  Although he has 
 
                 not attempted to return to work since the reported 
 
                 accident, given his current presentation of pain, 
 
                 it would appear to be quite unlikely that he would 
 
                 continue to remain in the work place.  In 
 
                 addition, it would appear that his hyper-focusing 
 
                 on his pain has a direct effect on his ability to 
 
                 maintain attention and concentration.  While his 
 
                 difficulty with attention and concentration does 
 
                 not specifically cause him to commit errors, it 
 
                 clearly affects his mental pace.  Thus, he is 
 
                 persistent enough in order to know when he is 
 
                 making an error but he becomes easily distracted 
 
                 and agitated resulting in a slower than average 
 
                 performance.
 
            
 
                    Therefore, it is my opinion that this 
 
                 individual will show considerable difficulty in 
 
                 returning to work as long as he continues to 
 
                 experience his current level of pain.  Clearly, 
 
                 his focusing on his pain causes his condition to 
 
                 be exacerbated.  This patient is able to handle 
 
                 his own funds as indicated by his WAIS-R scores in 
 
                 Arithmetic, his description of use of financial 
 
                 instruments, and his report of currently managing 
 
                 the family funds.
 
            
 
            (Ex. pp. 76-77)
 
            
 
                 Dr. Ascheman summarized his conclusions in his report 
 
            of June 23, 1992.  He wrote:
 
            
 
                 In summary, I would conclude the following:
 
            
 
                 1) This patient meets the DSM-III-R criteria for a 
 
                    diagnosis of somatoform pain disorder.
 
            
 
                 2) His expression of the disorder appears to be 
 
                    both temporally and psychologically related to 
 
                    his physical injury.
 
            
 
                 3) There is no evidence from my evaluation of him 
 
                    to suggest malingering.  This includes my 
 
                    personal perception of him as being credible, 
 
                    his presentation of pain behavior, his lack of 
 
                    drug seeking behaviors, and the inability of 
 
                    the MMPI to detect malingering on any of its 
 
                    three validity scales.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 4) His personality profile as shown on the MMPI is 
 
                    consistent with the diagnosis of somatoform 
 
                    disorder.
 
            
 
                 5) His long term prognosis is poor.  This 
 
                    prognosis is consistent with suggestions made 
 
                    throughout his medical and psychological 
 
                    evaluations.
 
            
 
                 6) His apparent lack of motivation is a feature of 
 
                    his somatoform disorder, not a conscious effort 
 
                    to resist an intervention.
 
            
 
                 7) His ability to return to any type of 
 
                    competitive employment is limited by his 
 
                    perception of pain which affects his ability to 
 
                    maintain attention and concentration.
 
            
 
            (Ex. p. 81)
 
            
 
                 Claimant was evaluated by Sinesio Misol, M.D.  The 
 
            orthopedic physician opined that:
 
            
 
                    X-rays and MRI performed at Mercy Hospital were 
 
                 reviewed by me.  Without any question, this man 
 
                 has narrowing of the L5-S1 disc with posterior 
 
                 protrusion of disc material.  Because he has a 
 
                 wide canal, the disc appears to be touching the 
 
                 dural sac without producing any constriction.
 
            
 
                    My impression is a young man with L5-S1 disc 
 
                 protrusion or degeneration with persisting severe 
 
                 low back and left leg pain without neurological 
 
                 deficit.
 
            
 
                    It is my opinion that as proven by available 
 
                 records, all attempts at conservative treatment 
 
                 have pretty much failed.  I do not believe that I 
 
                 would recommend surgery either in view of the lack 
 
                 of neurological deficit.  It is my opinion that he 
 
                 has reached a plateau at least as of last year.  
 
                 It is also my belief that he has a degree of 
 
                 permanent/partial physical impairment that 
 
                 certainly seems to be in the area of about 7 to 8 
 
                 percent of the body.  The amount of disability, 
 
                 however, may be greater as he will be unable to do 
 
                 work similar to the one that he was doing prior to 
 
                 the injury, that is physical work that involves 
 
                 bending, lifting, etc.
 
            
 
                 He, as above stated, has been given social 
 
                 security disability.  He will probably go back to 
 
                 school and try to get a degree as a computer 
 
                 operator, that he will be seeking a more sedentary 
 
                 job in the future as soon as he can.
 
            
 
            (Ex. pp. 84-85)
 
            
 
                 Defendants referred claimant to Management Consulting & 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Rehabilitation Services, Inc.  Patricia McCollom, RN, MS, 
 
            CRRN, CIRS, interviewed and evaluated claimant.  After an 
 
            initial interview with claimant, Ms. McCollom devised a 
 
            rehabilitation plan for claimant.  She summarized the plan 
 
            in her report of February 3, 1992.  The plan consisted of 
 
            the following conclusions and recommendations:
 
            
 
                 1. Refer for current medical evaluation to 
 
                    determine any changes in status.
 
            
 
                    Rationale:  An extended period has elapsed 
 
                    since the last evaluation, with a fall in the 
 
                    interim.  Note:  A psychological evaluation is 
 
                    pending at the request of Social Security.
 
            
 
                 2. Refer to the State Division of Vocational 
 
                    Rehabilitation for full functional evaluation.
 
            
 
                    Rationale:  No evaluation has been completed to 
 
                    determine skills, abilities.  Transferable 
 
                    skills are numerous (including bilingual, 
 
                    ability to read, write, see, mobility within 
 
                    the community) to consider appropriate work 
 
                    options, further knowledge regarding his stated 
 
                    educational background is necessary.
 
            
 
                    An alternative for work includes coordination 
 
                    with such programs as PROTEUS and the 
 
                    Commission on Latino affairs, to provide work 
 
                    options for Mr. Rodriguez utilizing his Spanish 
 
                    speaking skills and prior training.
 
            
 
            (Ex. pp. 95-95)
 
            
 
                 As of April 1, 1992, Ms. McCollom terminated her 
 
            vocational rehabilitation services per the request of 
 
            claimant.  The evidence indicated:
 
            
 
                 Mr. Rodriguez informed me that Saturday, March 28, 
 
                 he was notified of approval for social security 
 
                 disability; that he has thought about his 
 
                 vocational future, but has not made decisions; 
 
                 that he wishes to take some time to evaluate his 
 
                 situation and proceed then to look at options.  
 
                 This consultant commented on the need for 
 
                 evaluation, to obtain information to base 
 
                 decisions upon such as the need to evaluate 
 
                 English reading levels.  Mr. Rodriguez responded 
 
                 listing courses he has completed in English.  He 
 
                 indicated he will contact me, for vocational 
 
                 assistance, when/if needed.
 
            
 
            (Ex. p. 96)
 
            
 
                 Claimant's attorney referred his client to Gaylord 
 
            Nordine, M.D., a psychiatrist.  The physician authored a 
 
            report dated June 11, 1993.  He opined:
 
            
 
                 Based on my review of the records and clinical 
 
                 findings, it is my opinion, to a reasonable degree 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 of medical certainty, that this gentleman fully 
 
                 meets criteria for the diagnosis of somatoform 
 
                 disorder.  Also, based on my review of the records 
 
                 and my clinical evaluation of Mr. 
 
                 Rodriguez-Carballo, it is my opinion, to a 
 
                 reasonable degree of medical certainty, that the 
 
                 lifting incident that occurred in August of 1990 
 
                 was a significant causal factor in the development 
 
                 and subsequent manifestation of Mr. 
 
                 Rodriguez-Carballo's somatoform disorder.
 
            
 
                 Historical factors identified by clinical 
 
                 evaluation predisposed Mr. Rodriguez-Carballo to 
 
                 development of somatoform disorder.  The primary 
 
                 clinical consideration regarding predisposition is 
 
                 that this individual experienced extreme 
 
                 disruption of family structure, school and peer 
 
                 relationships, and virtually all elements of 
 
                 cultural interaction at age seventeen when he was 
 
                 violently displaced due to political changes in 
 
                 central Cuba where he grew up.
 
            
 
                 Clinical interview reveals that Mr. 
 
                 Rodriguez-Carballo suffers not only from 
 
                 somatoform disorder, but from severe dysthymia due 
 
                 to psychological trauma sustained at age 
 
                 seventeen.  Located in an alien culture at this 
 
                 time, his depression is continuing.  In my 
 
                 opinion, he needs interactive therapy provided by 
 
                 an expert in the treatment of cross-cultural 
 
                 displaced person problems as soon as possible.
 
            
 
            (Ex. p. 87)
 
            
 
                 In his deposition, Dr. Nordine testified that 
 
            individuals with somatoform disorder are individuals who:
 
            
 
                      In this population individuals who are under 
 
                 stress distinctly lack the ability to convert that 
 
                 distress into verbal symbolic representations and 
 
                 lacking that ability for whatever reason they do 
 
                 lack that ability they are predisposed to 
 
                 developing somatic derivatives of emotional or 
 
                 affective distress.  That is the foundation for 
 
                 our current understanding of somatoform disorder 
 
                 in the United States.
 
            
 
                   Q.  Now where does the displacement from one's 
 
                 fatherland or the ex-patriotation process, how 
 
                 does that fit in?  Is that one of the groups, 
 
                 then, that has this dysfunction that you've been 
 
                 talking about?
 
            
 
                   A.  Well, first of all, in his clinical 
 
                 presentations to the extent we have studied him so 
 
                 far there are other studies we can do that we have 
 
                 not done to differentiate alexithymia or what I 
 
                 call dysalexithymia and the predisposition to 
 
                 somatozation or somatoform disorder, but given 
 
                 what we know of him so far he clearly is an 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 individual who converts distress into physical 
 
                 awareness vis-a-vis ideational representations.  
 
                 He is more likely to relate a stress to physical 
 
                 discomfort than to some idea or concept is what 
 
                 I'm saying.  That's how he presents clinically.
 
            
 
                      Whenever someone presents that way clinically 
 
                 then we look for predisposing stress, is there 
 
                 something in the experience of this individual 
 
                 which might have disrupted his ability to convert 
 
                 into ideas as opposed to just developing physical 
 
                 discomfort.  
 
            
 
                      In my opinion such predisposing factors are 
 
                 powerfully present in the history of Rodriguez 
 
                 Carballo.  The significance of such predisposing 
 
                 factors is best discussed in the various papers by 
 
                 Robert Post at the NIMH.
 
            
 
                   Q.  Now when a person that is predisposed as 
 
                 you've just described it, Doctor, to emanate, if 
 
                 you will, or when that person's placed under 
 
                 stress to emanate or to channel that in physical 
 
                 ways, what happens in that person's life when he 
 
                 or she might be injured or subjected to pain?
 
            
 
                   A.  Such individuals are more likely than 
 
                 average individuals to develop a prolonged pain 
 
                 response, particularly if they continue to be 
 
                 under stress.  Rodriguez Carballo is in my opinion 
 
                 chronically under stress because he is living in 
 
                 an alien culture which is extremely difficult for 
 
                 him to comprehend.
 
            
 
                   Q.  Now prior to his work-related injury that's 
 
                 really the subject of this particular lawsuit it's 
 
                 your feeling that he was under stress as you've 
 
                 just testified?
 
            
 
                   A.  Yes.
 
            
 
                   Q.  What was the role, then, of the work injury 
 
                 in your estimation?
 
            
 
                   A.  The work injury triggered or precipitated an 
 
                 imbalance in the dynamic relationship between his 
 
                 personality organization and his ability to cope 
 
                 successfully with the experiences of daily living, 
 
                 work, family, family life and so on.  In my 
 
                 opinion he was in a marginal balance prior to 
 
                 injury and the injury tipped the balance into the 
 
                 area of dysfunction.
 
            
 
                   Q.  And that's why in your report of June 11, 
 
                 1993, you view that work-related injury that 
 
                 occurred in August of 1990 as a significant causal 
 
                 factor?
 
            
 
                   A.  Yes.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                   Q.  And that would still be your opinion today?
 
            
 
                   A.  Yes.
 
            
 
            (Ex. 61, pp. 32-35)
 
            
 
                 Dr. Nordine testified that with treatment claimant 
 
            could have a 50 percent chance to improve.  The physician 
 
            opined:
 
            
 
                   Q.  But now for prognosis what would your 
 
                 prognosis be of Mr. Carballo's case?
 
            
 
                   A.  My prognosis would be that if he can engage 
 
                 in therapy using some interactive therapy format 
 
                 which succeeds in resonating with his abilities to 
 
                 interact that he would have at least a 50 percent 
 
                 chance of making a substantial recovery, 
 
                 substantial marked by his reachieving [sic] the 
 
                 ability to do productive work.
 
            
 
            (Ex. 61, pp. 51-52)
 
            
 
                 In his deposition, Dr. Nordine further testified under 
 
            cross-examination:
 
            
 
                 Q.  I'm trying to distinguish between what I think 
 
                 I just heard you say which is there is absolutely 
 
                 no medical basis in the records for his pain at 
 
     
 
            
 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 any level versus is there medical evidence to 
 
                 support a report of pain but not as significant a 
 
                 report as Mr. Rodriguez gives?
 
            
 
                 A.  To the best of my recollection it's the 
 
                 latter.  I can't tell you from recent review what 
 
                 is in that record.  It's a distant review type of 
 
                 thing, but I believe I recall that there was some 
 
                 hard physical evidence at least at one point in 
 
                 this case.
 
            
 
                 So my response would be that this is in the 
 
                 category of disproportionate response.
 
            
 
            (Ex. 61 page 68)
 
            
 
                 Under cross-examination, Dr. Nordine also testified:
 
            
 
                 Q.  Do you view Mr. Rodriguez as having suffered 
 
                 from dysthymia for a period of time prior to his 
 
                 work injury in August of 1990?
 
            
 
                 A.  Yes.
 
            
 
                    ....
 
            
 
                 Q.  So had he not carried the dysthymia with him 
 
                 percolating below the surface or wherever it was 
 
                 manifesting itself all these years had he not 
 
                 carried that with him are you suggesting that the 
 
                 likelihood of his developing a somatoform disorder 
 
                 subsequent to the work injury would be reduced or 
 
                 set aside altogether?
 
            
 
                 A.  What I am saying is that his prior problem 
 
                 increased the likelihood of a somatoform result.
 
            
 
                 Q.  And is it related to the injury having created 
 
                 a stress or increased stress--
 
            
 
                 A.  Yes.
 
            
 
                 Q.  --precipitated the somatoform?
 
            
 
                 A.  It was a stress which demanded an adaptive 
 
                 response and he's not been able to generate the 
 
                 more typical adaptive response to the injury.
 
            
 
                 Q.  Which is?
 
            
 
                 A.  Recovery.
 
            
 
            (Ex. 61 pages 84-85)
 
            
 
                 After the opinion of Dr. Nordine was provided to the 
 
            parties, defendants referred claimant to Michael J. Taylor, 
 
            M.D.  He conducted a psychiatric interview and evaluation of 
 
            claimant.  The results were summarized in his report of July 
 
            23, 1993.  He wrote:
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
                 During the course of my interview with Mr. 
 
                 Rodriguez, I elicited from him a general past 
 
                 psychiatric history including a discussion of his 
 
                 childhood and the circumstances under which he 
 
                 eventually left Cuba; I discussed with him the 
 
                 current difficulties that he is experiencing with 
 
                 pain and the limitations that the pain causes him 
 
                 in his day-to-day life; I questioned him very 
 
                 specifically about various signs and symptoms 
 
                 which might be indicative of mental disorder; and 
 
                 throughout the course of my interview with Mr. 
 
                 Rodriguez, I assessed his mental status 
 
                 examination.
 
            
 
                 Based upon all the information currently available 
 
                 to me, I can offer the following opinions and 
 
                 recommendations, all within a reasonable degree of 
 
                 medical certainty.
 
            
 
                 I find no evidence that, at the present time, Mr. 
 
                 Rodriguez suffers from an diagnosable psychiatric 
 
                 disorder which would in any way cause any work 
 
                 restrictions.  I find no evidence of any type if 
 
                 permanent (or even temporary) psychiatric 
 
                 impairment.  The only limitations to Mr. 
 
                 Rodriguez's activities would be those limitations 
 
                 described by the several very competent 
 
                 orthopedists who have evaluated him.
 
            
 
            (Ex.,page 86.)
 
            
 
                 Dr. Taylor also testified by way of deposition.  He 
 
            testified that:
 
            
 
                 Q.  What conclusions did you reach after your 
 
                 review of the records and your interview with Mr. 
 
                 Rodriguez?
 
            
 
                 A.  Before viewing the videotape?
 
            
 
                 Q.  Right.
 
            
 
                 A.  That he suffered from no diagnosis of 
 
                 psychiatric disorder.
 
            
 
            (Ex.,58  p. 11)
 
            
 
                 In his deposition, Dr. Taylor later modified his 
 
            diagnosis.  He testified that:
 
            
 
                 Q.  Are there particular factors among others that 
 
                 stand out from your interview and examination 
 
                 which lead you to form the conclusion?
 
            
 
                 A.  No.  The whole general picture.
 
            
 
                 Q.  As to that conclusion that you just stated, 
 
                 how does that relate to the previous diagnosis 
 
                 perhaps supported, as you just said, by the MMPI 
 
                 scoring that the claimant here had a somatoform 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
                 pain disorder?
 
            
 
                 A.  I think it's really a stretch to call 
 
                 somatoform pain disorder a psychiatric illness.  
 
                 Somatoform pain disorder only says that somebody 
 
                 has pain and nobody can find a reason for it.  The 
 
                 diagnosis, if you want to give it the credit of 
 
                 the diagnosis as described in the Diagnostic and 
 
                 Statistical Manual, Edition III, Revised, 
 
                 describes somatoform pain disorder as basically 
 
                 what I have said, somebody has pain and nobody can 
 
                 find an explanation for the pain but doesn't apply 
 
                 any psychiatric restrictions.
 
            
 
                 Q.  Is the conclusion that Mr. Rodriguez had pain 
 
                 without any real identifying source of the pain 
 
                 consistent with the orthopedic records that you 
 
                 reviewed?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  Do you hold the opinion that Mr. Rodriguez has 
 
                 no diagnosable psychiatric disorder to a 
 
                 reasonable degree of medical certainty?
 
            
 
                 A.  I did on July 23, 1993 when I issued this 
 
                 report and I do today.
 
            
 
                 Q.  Do you have any particular points of 
 
                 disagreement with the conclusions of Doctor 
 
                 Nordine or Doctor Ascheman?
 
            
 
                 A.  Today or before I viewed the videotape?
 
            
 
                 Q.  Well, let's first talk about before you viewed 
 
                 the tape.
 
            
 
                 A.  Before I viewed the tape again I don't have 
 
                 any disagreement with the statement that this man 
 
                 has pain that nobody can find a cause for.  I 
 
                 disagree with Doctor Nordine's contention that 
 
                 this man was experiencing some psychiatric 
 
                 difficulties related to his situation in Cuba 
 
                 before he came to the United States.  I don't 
 
                 recall off the top if my head--yes, I do now.  I 
 
                 was starting to say I didn't recall what 
 
                 statements Doctor Ascheman might have made 
 
                 regarding permanency or state of disability, but 
 
                 Doctor Ascheman's report seems to have been 
 
                 pivotal in this man's receiving social security 
 
                 disability benefits.  And it's my recollection 
 
                 that Doctor Ascheman estimated that this man was 
 
                 totally and permanently disabled by his current 
 
                 condition, and I strongly disagree with that even 
 
                 as of July 23, 1993.
 
            
 
                 Q.  In what respect or what causes the basis of 
 
                 your disagreement with his conclusion in that 
 
                 regard?
 
            
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
                 A.  I found no evidence of any psychiatric 
 
                 disability.  He had no symptoms of psychiatric 
 
                 disorder other than this unexplained alleged pain.
 
            
 
                 Q.  Did your opinions or conclusions change in any 
 
                 record after viewing the videotape?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  In what respect did they change?
 
            
 
                 A.  I believe him to be a malingerer.
 
            
 
            (Ex.,58 pages 11-14)
 
            
 
                 Since the date of the work injury, claimant has not 
 
            been employed in any meaningful capacity.  He has not sought 
 
            employment.  He has not engaged in any type of retraining; 
 
            he has not pursued any educational courses.  Claimant has 
 
            not engaged in any volunteer work, despite the fact that 
 
            volunteer work has been recommended to claimant.
 
            
 
                 Claimant testified at the hearing that he could do 
 
            almost nothing.  He testified he could drive a pick up truck 
 
            with standard transmission to the grocery store or transport 
 
            his child to school.  Claimant testified he could carry 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            sacks of garbage from the home to the front curb.  He 
 
            indicated he would not try to engage in lifting.  He also 
 
            testified he could sit for 30 to 60 minutes at a time, but 
 
            then he needed to stand and move around.  Claimant indicated 
 
            he could walk about four blocks before he tired.
 
            
 
                 Defendants retained the service of a private 
 
            investigator to conduct surveillance of claimant at his 
 
            home.  Defendants retained the services of Byron F. Robison, 
 
            d/b/a as American Central Investigation Firm.  The videotape 
 
            was admitted as an exhibit.  It depicted claimant performing 
 
            some household chores such as carrying bags of garbage or 
 
            bags of groceries.  Claimant was also depicted scraping 
 
            paint from his home, and assisting another male with 
 
            dragging a live goat from the back of the truck.  Mr. 
 
            Robinson indicated, in his report of June 27, 1991, that the 
 
            tape depicted claimant and another female walking from 
 
            across the street and both were carrying a large plastic 
 
            playhouse.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 There is no question that claimant has sustained a work 
 
            related injury to his low back.  There is some objective 
 
            evidence to support claimant's claim of a permanent injury.  
 
            Numerous functional impairment ratings have been given by 
 
            recognized experts in the field of orthopedics.  The ratings 
 
            have all been in the area of 5% to 8%.  The ratings are 
 
            consistent with one another.  No rating has exceeded the 8% 
 
            level.  No physician has recommended surgery.  All 
 
            orthopedic experts have prescribed conservative therapy and 
 
            some type of work hardening program.  Many experts have 
 
            noted that claimant has not given maximum effort to 
 
            recovering.
 
            
 
                 Claimant has consistently maintained he is incapable of 
 
            even engaging in a rehabilitation program.  Claimant has 
 
            described intense pain in the low back area as well as into 
 
            the lower extremities.  He has not cooperated with many of 
 
            the recommendations of the rehabilitation specialists.  
 
            While claimant has indicated to various health care 
 
            professionals that he is willing, "To do anything to help 
 
            his condition", claimant has not lived up to his promise to 
 
            cooperate in a rehabilitation program.
 
            
 
                 Dr. Ascheman is not a medical doctor.  He is not 
 
            licensed to practice medicine.  He holds a doctorate degree 
 
            in psychology.  He opines that claimant is incapable of 
 
            engaging in meaningful employment.  His opinion was rendered 
 
            pursuant to a request from the Social Security 
 
            Administration.  Dr. Aschman conducted testing and held an 
 
            interview with claimant.  The psychologist did not treat 
 
            claimant in a clinical setting.
 
            
 
                 Dr. Nordine is of the opinion that claimant is 
 
            incapable of engaging in any type of rehabilitation because 
 
            claimant suffers from a somataform disorder which is 
 
            precipitated by his work injury.  Dr. Nordine opines that 
 
            claimant has suffered from dysthemia since he was a 
 
            17-year-old student and a political prisoner in Cuba, but 
 
            that the work injury brought the somatoform disorder to 
 
            light.  According to Dr. Nordine, the somatoform disorder 
 
            manifested itself only after the work injury took place.  It 
 
            is Dr. Nordine's, opinion that claimant cannot handle a 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            recovery from his work injury.  In Dr. Nordine's opinion, 
 
            claimant is incapable of adjusting his life so that he can 
 
            effectuate change.  Dr. Nordine maintains that only with 
 
            therapy, can claimant improve his condition.
 
            
 
                 Dr. Taylor, on the other hand, takes a contrary 
 
            position.  He opines that claimant is not suffering from any 
 
            psychiatric disorder.  It is Dr. Taylor's opinion there is 
 
            no physical explanation for claimant's pain.  Dr. Taylor 
 
            even goes so far as to amend his opinion to include 
 
            malingering on the part of claimant.  He amended his opinion 
 
            after he had viewed the surveillance video which was made of 
 
            claimant in June of 1991.
 
            
 
                 Both psychiatrists are recognized experts in the field 
 
            of psychiatry.  Neither physician has been treating 
 
            claimant.  Claimant has not even requested psychiatric care 
 
            or therapy from any mental health professional.  Both 
 
            physicians saw claimant for purposes of rendering an 
 
            evaluation in anticipation of litigation.  The amount of 
 
            contact each physician has had with claimant is only 
 
            minimal.  The greater weight of the evidence does not 
 
            support a finding of any permanent psychological injury.
 
            
 
                 This deputy has viewed the surveillance video which 
 
            defendants authorized.  The tape covers three separate days 
 
            in June of 1991.  It is nearly three hours in length.  In 
 
            the tape, claimant is seen scraping and painting a portion 
 
            of his house.  The movements he exhibited involved bending, 
 
            squatting, sitting, reaching overhead, stretching to the 
 
            side, and some twisting.  This deputy witnessed no 
 
            observable pain in any of claimant's movements.  At all 
 
            times claimant was capable of performing the tasks which he 
 
            had attempted.
 
            
 
                 Claimant, and another male, are seen unloading and 
 
            carrying a goat from the back of his truck to the back yard.  
 
            Claimant is seen carrying various grocery and garbage bags.  
 
            On one occasion, claimant and another woman are carrying a 
 
            large plastic playhouse from the neighbor's home, across the 
 
            street, and to his own yard.  Numerous times claimant is 
 
            captured on the tape as he is getting in and out of his 
 
            Toyota pick-up truck.  It does not appear to this deputy 
 
            that claimant is having any difficulties entering and 
 
            exiting his vehicle.  Throughout the duration of the tape, 
 
            claimant walks without any apparent difficulties.  It is 
 
            acknowledged that claimant kicks out his foot when he walks.  
 
            However, this deputy is unable to determine whether this is 
 
            claimant's "natural walk", or whether this is the result of 
 
            claimant's back injury.  At any rate, claimant shows no 
 
            difficulties when he is walking either on pavement or on 
 
            ground.  Claimant is also seen standing for periods of time 
 
            of at least 15 to 20 minutes.  While viewing the videotape, 
 
            this deputy never witnessed any manifestations of pain or 
 
            discomfort when claimant was standing. 
 
            
 
                 It is the determination of the undersigned that 
 
            claimant demonstrated no physical manifestations of low back 
 
            pain during the course of the videotape.  The tape has 
 

 
            
 
            Page  24
 
            
 
            
 
            
 
            
 
            satisfactorily demonstrated to this deputy, that claimant is 
 
            capable of engaging in some employment opportunities.  
 
            Despite claimant's belief that "he cannot do anything", 
 
            claimant is quite capable of engaging in physical tasks such 
 
            as tasks involving some bending, some squatting, some 
 
            walking, standing, and driving a stand transmission vehicle.
 
            
 
                 It is also the determination of the undersigned that 
 
            even if claimant had been deemed to suffer some 
 
            psychological overlay as a portion of his claim, claimant 
 
            would still be capable of engaging in active employment.
 
            
 
                 Claimant has little motivation to return to active 
 
            employment of any kind.  Despite claimant's declaration, "He 
 
            would do anything to improve his condition", claimant's 
 
            behavior has not convinced this deputy that claimant is 
 
            ready and willing to engage in even the smallest efforts 
 
            toward rehabilitating himself.  Claimant has refused every 
 
            attempt at rehabilitation, despite defendants' numerous 
 
            offers of physical therapy, work hardening, pain management 
 
            techniques, pain clinics, and job placement.  Claimant has 
 
            not requested psychological counseling, despite his 
 
            psychiatrist's opinion that claimant will not improve unless 
 
            he is given intense therapy.  Dr. Nordine opines claimant is 
 
            incapable of helping himself because of claimant's long term 
 
            condition of dysthemia.  Dr. Nordine also opines that 
 
            claimant's somatoform condition is the result of claimant's 
 
            work injury.  However, after reviewing all of the evidence, 
 
            and after having viewed the three hour video tape, the 
 
            deputy is overwhelmingly convinced that claimant's pain 
 
            complaints are grossly exaggerated.  This deputy is not 
 
            persuaded that claimant suffers from a somatoform condition.  
 
            There were no observations of intense pain during the 
 
            playing of the tape.  This deputy is overwhelmingly 
 
            convinced that while claimant has sustained a permanent 
 
            partial impairment to his back, the industrial disability 
 
            which he has sustained, is much less than the disability 
 
            which is claimed by claimant.  
 
            
 
                 Claimant, it appears, can engage in at least sedentary 
 
            and medium categories of work.  The videotape demonstrates 
 
            the types of work which claimant can handle.  Claimant is of 
 
            average intelligence.  It is acknowledged that claimant's 
 
            entire education took place in Cuba, under the Castro 
 
            regime.  However, given Cuba's standards, claimant is well 
 
            educated.  He speaks both English and Spanish.  He has 
 
            experience in the hospital setting, given the fact he was an 
 
            x-ray technician in Cuba.  He has managed his own business.  
 
            After having run his own business, there are transferable 
 
            skills available to claimant.  He is pleasant and 
 
            personable.  He has some sales knowledge.  Claimant is 
 
            employable.
 
            
 
                 Therefore, after having reviewed the evidence, after 
 
            having observed claimant during the hearing, and given 
 
            agency expertise, it is this deputy industrial 
 
            commissioner's determination that claimant is entitled to a 
 
            twenty-five percent permanent partial disability.  He is 
 

 
            
 
            Page  25
 
            
 
            
 
            
 
            
 
            entitled to benefits for 125 weeks at the stipulated benefit 
 
            rate of $208.37 per week.
 
            
 
                 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.
 
            
 
                 The next issue to address is the issue dealing with 
 
            healing period benefits.  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. 
 
            Kubil, 312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period 
 
            benefits can be interrupted or intermittent.  Teel v. 
 
            McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 Defendants previously paid benefits from the date of 
 
            injury on August 21, 1990 through January 29, 1991, the 
 
            date, Dr. Boulden determined claimant had reached maximum 
 
            medical improvement.  However, after reviewing the evidence, 
 
            it is this deputy's determination that claimant 's healing 
 
            period ended as of May 29, 1991.  That is the date upon 
 
            which members of the Spine and Diagnostic Clinic at the 
 
            University of Iowa determined claimant had reached maximum 
 
            healing.  (Ex., p. 58.).  It is the determination of this 
 
            deputy that while Dr. Boulden held claimant had reached 
 
            maximum medical improvement in January, Dr. Boulden in the 
 
            same report also opined that claimant Nd was still in need 
 
            of some pain management.  Therefore, it is the determination 
 
            of the undersigned that claimant is entitled to healing 
 
            period benefits from August 21, 1990 through May 29, 1991.  
 
            This represents a period of 40.286 weeks at the stipulated 
 
            rate of $208.37 per week.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered that:
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred eight and 
 
            37/l00 dollars ($208.37) per week and commencing on May 30, 
 
            1991.
 
            
 
                 Defendants shall pay unto claimant forty point 
 
            two-eight-six (40.286) weeks of healing period benefits from 
 
            August 21, 1990 through May 29, 1991 and at the stipulated 
 
            rate of two hundred eight and 37/l00 dollars ($208.37) per 
 
            week.
 
            
 
                 Defendants shall take credit for all benefits 
 
            previously paid.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 

 
            
 
            Page  26
 
            
 
            
 
            
 
            
 
            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 January, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. David L. Jenkins
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1800; 2204
 
                                              Filed January 18, 1994
 
                                              MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIO H. RODRIGUEZ-CARBALLO,  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 957279
 
            QUALITY WINE COMPANY, INC.,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1800; 2204
 
            Claimant was awarded a 25 percent permanent partial 
 
            disability for an injury which he sustained to his low back.  
 
            Claimant also claimed that he had sustained a psychological 
 
            injury as a result of his back injury.  The evidence 
 
            presented did not support claimant's alleged psychological 
 
            injury.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MARIO H. RODRIGUEZ-CARBALLO,  
 
                                              File No. 957279
 
                 Claimant, 
 
                                              R U L I N G  O N
 
            vs.       
 
                                             M O T I O N  F O R
 
            QUALITY WINE COMPANY, INC.,   
 
                                                O R D E R 
 
                 Employer, 
 
                                                 N U N C
 
            and       
 
                                                   P R O
 
            WAUSAU INSURANCE COMPANY,     
 
                                                  T U N C
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            An arbitration decision was filed in the above captioned 
 
            matter on January 18, 1994.  In the arbitration decision, 
 
            this deputy industrial commissioner awarded:
 
            
 
               Defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred eight and 
 
            37/100 dollars ($208.37) per week and commencing on May 30, 
 
            1991.
 
               Defendants shall pay unto claimant forty point 
 
            two-eight-six (40.286) weeks of healing period benefits from 
 
            August 21, 1990 through May 29, 1991 and at the stipulated 
 
            rate of two hundred eight and 37/100 dollars ($208.37) per 
 
            week.
 
              Defendants shall take credit for all benefits previously 
 
            paid.
 
              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.
 
            No appeal was taken by any party.
 
            On March 14, 1994, a motion for order nunc pro tunc was 
 
            filed by the defendants.  In their motion, defendants 
 
            objected to various costs which claimant was requesting in 
 
            exhibit 1.  Specifically, defendants were objecting to:
 
            1.  Costs for reports or deposition testimony related to a 
 
            claim involving an alleged psychological injury;
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            2.  Costs for certain items which defendants claimed did not 
 
            fall under rule 343 IAC 4.33 such as the cost to duplicate a 
 
            transcript.
 
            On March 21, 1994, claimant filed his response to 
 
            defendants' motion for order nunc pro tunc.  In his 
 
            response, the claimant stated:  
 
            3.  Thus Claimant believes he is a "successful" claimant 
 
            within the general contemplation of Iowa Code section 625.1:  
 
            "Costs shall be recovered by the successful against the 
 
            losing party."  See, also, rule 343 IAC 4.35.
 
            ....
 
            6.  Moreover, there is a considerable question as to whether 
 
            Defendants' present Motion can be held to be timely inasmuch 
 
            as the period for appealing the Deputy's decision is past.  
 
            In Wenstrad v. Kiddoo (Wenstrad) -- an analogous case in 
 
            which an unsuccessful defendant attempted to challenge a 
 
            court's allowance of excessive attorney fees by filing a 
 
            motion to retax costs after the time for an appeal had run 
 
            -- the Supreme Court stated:
 
            In this case the motion to retax costs called for a 
 
            reconsideration by the court of the question on which it had 
 
            ruled in entering the judgment for the excessive attorney 
 
            fees.  The error of the court inhered in the judgment and 
 
            the remedy is by appeal, and [Defendant] was not entitled to 
 
            the relief granted him on his motion to retax costs.
 
            See, 222 Iowa at 297, 268 N.W. at 581 (emphasis added).  In 
 
            reaching this conclusion, the Wenstrad Court cited as 
 
            authority a number of its earlier holdings including Young 
 
            v. Rutherford:
 
            The motion called for a reconsideration by the court of the 
 
            questions on which it had ruled in entering the judgment, 
 
            and this is not the function of a motion to retax costs.  We 
 
            think such a remedy was not available to the movant.  To 
 
            correct the allowances made in the judgment entry, the 
 
            defendant should have appealed.
 
            See 222 Iowa at 294, 268 N.W. at 579 (emphasis added) 
 
            (quoting Young v. Rutherford, 190 Iowa 414, 418, 176 N.W. 
 
            241, 242 (Iowa 1920)).
 
               ....
 
               8.  Further support for Claimant's position is found in 
 
            the statutory authority for nunc pro tunc orders:  "Entries 
 
            made and signed*** may be altered only to correct an evident 
 
            mistake."  See Iowa Code section 602.6203(4).  Of the 
 
            limitations of such orders, our court has written:
 
               The distinction, then as now, is this:  The power of the 
 
            court to cause the record to conform to the judicial 
 
            pronouncement is inherent, and is not affected by the mere 
 
            lapse of time; before entry and signing, the power is 
 
            exercisable as the judge may direct; thereafter, the power 
 
            is limited to correction of "evident mistakes."
 
               See, Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969) 
 
            (emphasis added).  Given the foregoing discussion, Claimant 
 
            does not believe Deputy McGovern's assignement of the costs 
 
            to Defendants can be said to be an "evident mistake" within 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the contemplation of Iowa Code section 602.6203(4).
 
            A reply to claimant's response to motion for order nunc pro 
 
            tunc was filed by defendants on March 24, 1994.  In its 
 
            reply, defendants requested this deputy to enter an Order 
 
            Nunc Pro Tunc.
 
            Section 602.6204 (3) and (4) of the Iowa Code provides in 
 
            relevant portion:
 
               3.  A record shall not be amended or impaired by the 
 
            clerk of the district court, or by any other officer of the 
 
            court, or by any other person, except pursuant to the order 
 
            of the district court or some other court of competent 
 
            authority.
 
               4.  Entries made and signed, unless amended or expunged 
 
            as provided in subsection 3, may be altered only to correct 
 
            an evident mistake.
 
            Defendants have requested an Order for Nunc Pro Tunc.
 
            Black's Law Dictionary, Fourth Edition, (revised) defines 
 
            nunc pro tunc at page 1218.  The entry reads:
 
            Lat. Now for then.  A phrase applied to acts allowed to be 
 
            done after the time when they should have been done with a 
 
            retroactive effect, i.e., with the same effect as if 
 
            regularly done.
 
            Nunc Pro Tunc" entry is an entry made now of something 
 
            previously done to have the effect of former date; office 
 
            being not to supply omitted action, but to supply omission 
 
            in record of action really had but omitted through 
 
            inadvertence or mistake.  (Citations omitted).
 
            In the present case, this deputy industrial commissioner is 
 
            asked to to issue an order of nunc pro tunc for the  
 
            arbitration decision in this matter.  Under section 
 
            602.6203(4) the decision may only be changed to correct an 
 
            evident mistake. There is no evident mistake in the taxation 
 
            of costs in the present case.  The costs are taxed pursuant 
 
            to section 86.40 and to Rule 343 IAC 4.33.  Costs may be 
 
            taxed in the discretion of the deputy commissioner or by the 
 
            industrial commissioner.
 
            It is clear that section 86.40 governs the assessment of 
 
            costs.  The section provides:
 
               All costs incurred in the hearing before the commissioner 
 
            shall be taxed in the discretion of the commissioner.
 
            It is also clear that costs are governed by the 
 
            administrative rules of the Division of Industrial Services.
 
            Rule 343 IAC 4.33 governs costs which may be taxed by the 
 
            industrial commissioner or a deputy commissioner.  The rule 
 
            expressly provides:
 
               Costs taxed by the industrial commissioner or a deputy 
 
            commissioner shall be (1) attendance of a certified 
 
            shorthand reporter or presence of mechanical means at 
 
            hearings and evidential depositions, (2) transcription costs 
 
            when appropriate, (3) costs of service of the original 
 
            notice and subpoenas, (4) witness fees and expenses as 
 
            provided by Iowa Code sections 622.69 and 622.72,  (5) the 
 
            costs of doctors' and practitioners'' deposition testimony 
 
            provided that said costs do not exceed the amounts provided 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            by Iowa Code sections 6.22.69 and 622.72, (6) the reasonable 
 
            costs of obtaining no more than two doctors' or 
 
            practitioners' reports, (7) filing fees when appropriate, 
 
            (8) costs of persons reviewing health service disputes.  
 
            Costs of service of notice and subpoenas shall be paid 
 
            initially to the witnesses, doctors or practitioners by the 
 
            party on whose behalf the witness is called or by whom the 
 
            report is requested.  Witness fees shall be paid in 
 
            accordance with Iowa Code section 622.74.  Proof of payment 
 
            of any cost shall be filed with the industrial commissioner 
 
            before it is taxed.  The party initially paying the expense 
 
            shall be reimbursed by the party taxed with the cost.  If 
 
            the expense is unpaid, it shall be paid by the party taxed 
 
            with the cost.  Costs are to be assessed at the discretion 
 
            of the deputy industrial commissioner or industrial 
 
            commissioner hearing the case unless otherwise required by 
 
            the rules of civil procedure governing discovery.
 
            In the present case, no evident mistake has been made by 
 
            this deputy industrial commissioner in assessing costs to 
 
            defendants.   The determination to assess costs is 
 
            discretionary.  Since there is no evident mistake, the 
 
            motion for an order of nunc pro tunc is inappropriate.  
 
            Defendants' motion for an order of nunc pro tunc is denied.
 
            The parties are reminded that costs are often assessed to 
 
            the defendants.   That determination is customary in cases 
 
            where claimant is able to recover an award.  See, Iowa 
 
            Workers' Compensation Law and Practice, Second Edition, 
 
            Lawyer and Higgs at section 22-8, p. 244-245. The authors 
 
            elaborate the following relative to costs:
 
               In the majority of cases, costs will be taxed to the 
 
            defendant under a theory that defense of workers' 
 
            compensation cases is a part of doing business.  However, 
 
            costs may be charged to the claimant, particularly in an 
 
            arbitration case where the suit is spurious or obviously 
 
            frivolous....
 
               The order of the deputy industrial commissioner in all 
 
            probability will be a general one directing, for example, 
 
            that defendants pay costs.  In most instances, the parties 
 
            work out the costs between or among themselves.  A party, 
 
            however, can make specific requests for items which the 
 
            deputy usually will order with specificity.  For instances, 
 
            the claimant might submit the costs of two doctors' or 
 
            practitioners' reports or request mileage or witness fees 
 
            for those persons appearing.  (Footnotes omitted).
 
            The parties are also advised that even though the assessment 
 
            of costs is discretionary, the costs must be allowable under 
 
            the Iowa Code or under the Iowa Administrative Code.  In the 
 
            instant case, claimant's costs which are assessed to 
 
            defendants include:
 
            
 
                 Shorthand reporter at deposition of
 
                   Dr. Nordine                      $291.00
 
                 Cost of service                       4.58
 
                 Dr. Nordine's deposition            150.00
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Two doctors' reports                 200.00
 
                                                      100.00
 
                 Filing fees                           65.00
 
                 Testimony                      
 
                          Total                      $810.58
 
            
 
            THEREFORE, in light of all of the above, defendants' motion 
 
            for an order nunc pro tunc is denied.
 
                          
 
                                         ORDER
 
                
 
                THEREFORE, it is ordered:
 
            Defendants' motion for a nunc pro tunc is denied.
 
            Costs of the filing of this motion is assessed to 
 
            defendants,
 
            Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                   MICHELLE A McGOVERN
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311-1540
 
            
 
            Mr Dvid L Jenkins
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            SANDRA VIERS,  :
 
                      :      File No. 957476
 
                 Claimant, :
 
                      :
 
            vs.       :       MEMORANDOM OF
 
                      :
 
            HY-VEE FOOD STORES, :        DECISION ON
 
                      :
 
                 Employer, :         ALTERNATE
 
                      :
 
            and       :        MEDICAL CARE
 
                      :
 
            EMPLOYERS MUTUAL,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            An original notice and petition was filed on December 23, 
 
            1992 under rule 343 IAC 4.48.  January 6, 1993 was the date 
 
            set for a telephonic hearing.  All parties were given proper 
 
            notice.
 
            This alternate medical care petition was filed because of 
 
            the claimant's dispute with medical care she was being given 
 
            which arose out of a work injury on May 13, 1990.  The 
 
            entire hearing was recorded via an audio tape.  The detailed 
 
            decision was dictated into the record on the day of the 
 
            hearing and will not be reproduced in typewritten form 
 
            unless there is an appeal by the parties at which time the 
 
            procedures under the administrative code are to be followed.  
 
            Any rights of appeal will run from the date of the decision 
 
            dictated into the record, namely, January 6, 1993, and this 
 
            memorandum is solely for the purpose of the agency file
 
            The deputy ordered that claimant's petition for alternate 
 
            medical care is denied.  The decision was rendered on 
 
            January 6, 1993.
 
            This memo signed this ______ day of January, 1993.
 
            
 
                      _____________________________
 
                      LARRY P. WALSHIRE
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. David P. Kozlowski
 
            Attorney at Law
 
            1025 Ashworth Rd. #329
 
            West Des Moines, Iowa  50265
 
            
 
            Hy-Vee Food Stores
 
            1111 Army Post Road
 
            Des Moines, Iowa  50315
 
            
 
            Ms. Trish McElderry
 
            Employers Mutual Companies
 
            P O Box 884
 
            Des Moines, Iowa  50304-0884
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
DAVID J. BENDICKSON,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 957612
 
DOUBLE F. FRAMING, 
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
GENERAL CASUALTY,  
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Defendants.    
 
___________________________________________________________
 
                 STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration upon the petition of claimant, 
 
David Bendickson, against his employer, Double F. Framing, and its 
 
insurance carrier, General Casualty Insurance Company, defendants.  
 
Claimant is also alleging that he is entitled to benefits from the 
 
Second Injury Fund of Iowa.  The Fund has also been named as a 
 
defendant.
 
 
 
The case was heard on February 9, 1994 in Des Moines.  The record 
 
consists of the testimony of claimant.  The record also consists of 
 
exhibits 1-5 and exhibit A.
 
 
 
                    STATEMENT OF THE ISSUES
 
 
 
The issues to be determined are:  1) whether claimant is entitled to 
 
permanent partial disability benefits; and 2) whether claimant is 
 
entitled to benefits pursuant to the Second Injury Fund of Iowa.
 
 
 
                    STATEMENT OF THE FACTS
 
 
 
The deputy, having heard the testimony and considered all of the 
 
evidence, finds:
 
 
 
Claimant is 50 years old.  He is single with no minor children.  
 
Claimant has obtained his GED.
 
 
 
On May 11, 1987 claimant was involved in a motor vehicle accident.  The 
 
accident was unrelated to any employment.  As a result of that 
 
accident, claimant sustained a comminuted fracture of the midshaft of 
 
the femur (Exhibit A).  His injury necessitated a two month stay in 
 
Broadlawns Hospital.  Claimant progressed very slowly.
 
 
 
A referral was made to the University of Iowa Hospitals and Clinics for 
 
an evaluation in the orthopedics department.  Initially, Dr. Neopala 
 
(first name unknown) examined and evaluated claimant on March 9, 1988.  
 
The orthopedic surgeon wrote the following in his clinical notes:
 
Assessment:  Healing femur fracture with exuberant bone formation and 
 
possibly not requiring any surgical intervention at this time.
 
Plan:  We have instructed the patient to continue with his current 
 
regimen of light weight-bearing as pain will tolerate.  Should he have 
 

 
 
 
 
 
 
 
 
 
any further problems, he should come back to us as soon as possible, 
 
otherwise we will simply see him in six weeks for REPEAT AP AND LATERAL 
 
OF HIS ENTIRE FEMUR WHILE STANDING.  (Ex. 4c-1)
 
 
 
Claimant was off work for approximately three years.  On February 20, 
 
1990, claimant was released to return to construction work.
 
 
 
On August 1, 1990, claimant commenced his employment with the present 
 
defendant.  Foster Felton hired claimant to perform certain laboring 
 
and carpentry tasks on residential building sites.  For his services 
 
claimant was paid $12.00 per hour.
 
 
 
On day two of his employment with the present defendant- employer, 
 
claimant fell eight feet from a basement wall.  He landed on his feet 
 
with most of his weight placed on his right lower extremity.  A 
 
co-worker called for emergency assistance.  Claimant was transported by 
 
ambulance to Broadlawns Hospital. 
 
 
 
Claimant underwent a limited internal fixation/external fixation (Ex. 
 
4c-10).  Again, he progressed in a very slow fashion.
 
 
 
Claimant was referred to the University of Iowa Hospitals and Clinics.  
 
J. L. Marsh, M.D., Associate Professor of the Department of 
 
Orthopedics, treated claimant.  Dr. Marsh assessed claimant's condition 
 
as "[h]ealing tibial plateau and proximal metaphyseal tibia fx. 
 
(comminuted), progressing well" (Ex. 4c_7).
 
 
 
Claimant continued with follow-up treatment through the University of 
 
Iowa Hospitals and Clinics.  Dr. Marsh prescribed a custom brace.  
 
Physical therapy and work hardening were prescribed for claimant.
 
In August of 1992, Dr. Marsh indicated the following relative to 
 
claimant's condition:
 
 
 
X-rays:  No evidence of atrophy or fusion of the joint.
 
 
 
Impression:  The knee looks great with no evidence of arthritis.  There 
 
is good motion.  Instability is small.  Muscle strength and control of 
 
the joint has improved since the last clinic visit.  The patient may 
 
still continue to improve, but it is hard to predict the likelihood of 
 
improvement.
 
 
 
Plan:  Mr. Bendickson is advised to continue activities as tolerated.  
 
He should continue strength exercises.  If possible, he was advised to 
 
pursue less strenuous work.  RTC in one year, AT WHICH TIME REPEAT AP 
 
AND LATERAL VIEWS SHOULD BE DONE.  (Ex. 4c-10)
 
 
 
A work hardening program was offered to claimant in October of 1991.  
 
Thomas W. Bower, L.P.T., managed a 14 day program for claimant.
 
At the conclusion of the program, Mr. Bower issued his report of 
 
November 20, 1991.  He determined the following:
 
   
 
Mr. Bendickson continues to demonstrate some mild flexion loss of 
 
his right knee with measurements taken from 0 to 130o.  He is wearing 
 
an Omni brace throughout the majority of the time that he is up for 
 
stability purposes.  I continue to demonstrate a mild to moderate 
 
anterior instability noted on exam, but I can find nothing in the 
 
record that would indicate the anterior cruciate was disrupted nor have 
 
I received any further information to confirm that from Iowa City.  
 
There does not appear to be a great deal of medial lateral instability.
 
   
 
Based on our assessment today, we feel the patient has sustained an 
 
overall 7% impairment to the right lower extremity, in accordance with 
 
the range of motion loss.  The instability that I'm noting I feel 
 
accounts for an additional 15%.  We cannot account for any further 
 
impairment based on the orthosis that he is required to wear, since the 
 
guides specifically state that it must be a groin to ankle orthosis and 
 
no other bracing is considered.  Therefore, on the basis of our exam 
 
today, we feel the patient has sustained an overall 21% impairment, 
 
using the combined values charts of the 3rd Edition Revised AMA 
 
[G]uides. (Ex. 4b-5 - 4b-6)
 
 
 
The treating physician at the University of Iowa, Dr. Marsh, issued a 
 
report detailing claimant's condition as of June 25, 1993.  Dr. Marsh 
 

 
 
 
 
 
 
 
opined in the same report:
 
   
 
With respect to the right knee injury for David Bendickson, it is my 
 
determination that he functions approximately at the level of a patient 
 
with a knee fusion.  However, since he does have some of the function 
 
of his knee, I have chosen to rate his impairment of the right lower 
 
extremity at 40%, which is 10% lower than the optimal knee fusion.  
 
With respect to his opposite leg, he has an impairment of 5% for loss 
 
of full knee flexion.
 
 
 
With respect to restrictions, I put no definite restrictions on 
 
David.  He is free to function at the level that he is able to achieve. 
 
 
 
 However, I think it is reasonable to expect that he would not be able 
 
to do the heaviest type of work because of his knee.  Therefore, we 
 
would not expect that he could do heavy lifting greater than 20 lbs., 
 
climbing, running, or jumping.  He would also have difficulty with 
 
activities requiring vigorous use of the knee, such as driving a heavy 
 
clutch, etc.  With respect to recreational activities, I think it is 
 
unlikely that he could run, jump, or play sports that required this.
 
(Ex. 4d-1)
 
 
 
Claimant desired an independent medical examination from a physician of 
 
his own selection.  Claimant was then examined and evaluated by Keith 
 
W. Riggins, M.D., on October 6, 1993.  Dr. Riggins issued his report 
 
which is exhibit 4a-1.  In the report, Dr. Riggins opined:
 
 
 
Examination of the left knee demonstrates moderate crepitance 
 
throughout range of motion.  There is a well-healed anteromedial 
 
incision at the knee.  Range of motion is zero to one-hundred five 
 
degrees.  Circumference is measured at sixteen and one-half inches five 
 
inches above the inferior pole of the patella.  Strength is Grade 5 in 
 
both flexion and extension.
 
 
 
Examination of the right knee demonstrates no effusion.  There is no 
 
inappropriate angulation through the knee joint.  Range of motion is 
 
from full extension to one-hundred ten degrees of flexion.  Marked 
 
crepitance is present throughout range of motion of the knee including 
 
a very prominent snap as Mr. Bendickson attains ten degrees of flexion 
 
proceeding from full flexion.  There are well-healed punctate incisions 
 
on the anterior aspect of the tibia and a well-healed longitudinal 
 
incision approximately three inches in length at the mid-portion of the 
 
thigh on the right from external fixators.  There are three well-healed 
 
one-inch incisions on the medial aspect of the knee and one well-healed 
 
one-inch incision on the anterolateral aspect from placement of 
 
interosseous screws.  There is a well-healed five inch posteromedial 
 
incision at the knee.  The right thigh measures sixteen inches at five 
 
inches above the inferior pole of the patella.  There is noted to be 
 
Grade l posteromedial laxity of the joint.
 
 
 
X-ray examination of the right tibia and standing AP x_ray examination 
 
of the right knee are obtained on October 6, 1993.  These studies 
 
demonstrate considerable disruption of articular surface of the tibia 
 
with good maintenance of the joint space.  Four metallic fixation 
 
screws are in place and there is no inappropriate angulation through 
 
the knee joint.
 
 
 
Records consisting of a statement of David Bendickson; University of 
 
Iowa Hospital and Clinics (J.L. Marsh, M.D.); Broadlawns Medical 
 
Center; General Rehabilitation Services, Inc.; and Mr. Tom Bower, LPT 
 
are reviewed in the course of preparation of this report.
 
 
 
DIAGNOSIS:  Severely comminuted plateau fracture right knee, healed.
 
 
 
IMPAIRMENT is rated utilizing the Fourth Edition of the AMA Guides to 
 
Evaluation of Permanent Impairment.  The condition of restriction of 
 
range of motion of the knee to one-hundred ten degrees yields a ten 
 
percent (10%) impairment.  The condition of mild collateral laxity 
 
yields a seven percent (7%) impairment.  Impairment due to crepitance 
 
is rated utilizing Table 19 at thirty percent (30%) of the knee joint 
 
value.  Knee joint value is sixty-seven (67%) impairment of the lower 
 
extremity; therefore, the number sixty-seven percent (67%) is 
 
multiplied by thirty percent (30%) yielding an impairment of twenty 
 
percent (20%) of the lower extremity due to crepitance.  Strength is 
 
rated at Grade 4, both in flexion and in extension, and utilizing Table 
 

 
 
 
 
 
 
 
 
 
39 yields impairment of twelve percent (12%) of lower extremity due to 
 
weakness of flexion and twelve percent (12%) of lower extremity due to 
 
weakness of extension.
 
 
 
Final Impairment is calculated in the following manner:
 
     
 
The value twenty percent is combined with ten percent yielding 
 
twenty-eight percent (28%).
 
     
 
The value twenty-eight percent is combined with twelve percent yielding 
 
thirty-seven percent (37%).
 
     
 
The value thirty-seven percent is combined with twelve percent yielding 
 
the value forty-five percent (45%).
 
     
 
The value forty-five percent is combined with the value seven percent 
 
yielding forty-nine percent (49%).
 
 
 
The final impairment rating is therefore, considered to be forty-nine 
 
percent (49%) of the lower extremity.
 
 
 
DISCUSSION:  Mr. Bendickson's injury of severely comminuted fracture of 
 
the proximal tibia is felt to be causely [sic] related to his episode 
 
of fall occurring on August 2, 1990 while in the employ of Double F 
 
Framing Company.  (Ex. 4a-2 - 4a-4)
 
 
 
Dr. Riggins later modified his opinion.  His original evaluation was 
 
based upon the Fourth Edition of the AMA Guides, but the Third Edition 
 
of the AMA Guides was in existence at the time of claimant's injury.  
 
Furthermore, the Third Edition of the AMA Guides was the volume used by 
 
Mr. Bower in the rendering of his evaluation.
 
 
 
Therefore, in Dr. Riggins' modified evaluation, he opined:
 
   
 
The difference between the impairment rating provided by Dr. Marsh 
 
and the impairment which I provided is felt to be primarily secondary 
 
to the differences of technique of rating impairment of the knee 
 
between the Third Edition, Revised and the Fourth Editions of the AMA 
 
Guides to Evaluation of Permanent Impairment.  The primary differences 
 
are:
 
 
 
l.  Range of motion of the knee joint is valued at fifty percent of 
 
the lower extremity in the Third Edition of the Guides whereas it is 
 
valued at sixty-seven percent impairment of the lower extremity in the 
 
Fourth Edition.  The impairments due to crepitation and strength loss 
 
are dependent upon multiplication of the value for range of motion of 
 
the knee by a converting factor.  The increase in impairment due to 
 
crepitation and impairment due to loss of strength is therefore 
 
increased when rated in the Fourth as compared to the Third Editions.
 
 
 
2.  The Third Edition provides no mechanism for rating impairment due 
 
to mild medial collateral ligament laxity whereas the Fourth Edition 
 
does provide such a mechanism.
 
   
 
The following impairment rating utilizing the Third Edition is 
 
provided in order to allow comparison of my rating to that of Dr. 
 
Marsh.
 
   
 
Instructions regarding impairment regarding crepitation are on Page 
 
44 of the Third Edition and indicate a converting factor of .30.  The 
 
value from Table 35 for range of motion of the knee is fifty percent 
 
impairment.  Fifty percent is therefore multiplied by .30 yielding an 
 
impairment of the lower extremity of fifteen percent (15%).  Range of 
 
motion is rated utilizing my obtained measurement of one-hundred ten 
 
degrees in accordance with Table 35 of the Third Edition yielding an 
 
impairment of fourteen percent (14%) of the lower extremity.  Strength 
 
deficit in flexion and extension is rated utilizing Table 47 and Table 
 
11 with deficit being placed at ten percent.  The hamstring impairment 
 
is produced by multiplying seventy percent maximum impairment due to 
 
loss of strength of hamstring by the converting factor of ten percent 
 
yielding an impairment due to hamstring weakness of seven point five 
 
percent (7.5%).  The weakness of extension is calculated by utilizing 
 
the figure thirty-five percent of the lower extremity secondary to loss 
 
of power of femoral nerve innervative musculature by a converting 
 
factor of ten percent yielding an impairment due to loss of strength in 
 
extension of eleven percent (11%).  The values fifteen percent and 
 
fourteen percent are combined yielding an impairment of twenty-seven 
 
percent which is then combined with eleven percent yielding an 
 

 
 
 
 
 
 
 
impairment of thirty-five percent.  The lower extremity is therefore 
 
considered thirty-five percent impaired when rated in accordance with 
 
the AMA Guides to Evaluation of Permanent Impairment, Third Edition.
 
   
 
It is noted that the Fourth Edition Guides to Evaluation of 
 
Permanent Impairment did not become available until August of 1993.  
 
Copies of the appropriate sections of the Fourth Edition Guides to 
 
Evaluation of Permanent Impairment are included for your information.
 
(Ex. 4a-5 - 4a-6)
 
 
 
Various medical providers suggested claimant find another line of work 
 
which would not be as strenuous as the construction industry had been.  
 
As a result, claimant, on his own initiative, presented himself for 
 
testing, evaluation, and rehabilitation at the Iowa Department of 
 
Vocational Rehabilitation.  Barb Smalley, counselor at The Polk County 
 
Area Office for the Iowa Department of Vocational Rehabilitation, 
 
issued a report on January 27, 1994.  In the report Ms. Smalley 
 
addressed issues surrounding claimant's employability.  In her report 
 
she wrote:
 
   
 
Finally, in December of 1993 David determined that the physical 
 
requirements of carpentry work were just too strenuous with his 
 
limitations.  He again started exploring what type of work he could do. 
 
 
 
We have started to review his limited options.
 
   
 
In 1992 he went through the Iowa State Vocational Rehabilitation 
 
facility's evaluation program with following conclusions:Updating 
 
academic skills for college work was not recommended.  Math score at 
 
the 10th grade level, able to complete whole numbers, but lacked skills 
 
in fractions and decimals.  Reading level is at grade 8.7.  He has good 
 
skills in mechanical reasoning and very good basic shop skills which 
 
are supportive of work in maintenance, wood or mechanical tasks.
 
   
 
David has excellent mechanical skills, an established profession in 
 
carpentry and potential for other positions using these basic shop 
 
skills.  However, his extensive limitations and the requirement to sit 
 
and stand in various positions would require onsite modifications and 
 
extensive work in uncovering a position in such a limited job market.
 
   
 
David has proven that he is able to find a job and that he is highly 
 
motivated and very sincere in wanting employment to support himself.  
 
His overall demeanor is that he is a person that likes to work with his 
 
hands preferably in an outdoor environment.  His strongest skills seem 
 
to be in the industrial skill area, not general business or office.  
 
For David the type of work environment is equally important to match 
 
since he has already had the experience of working indoors in a 
 
sedentary, routine assembly line type position prior to the disability 
 
and it just did not match his work aptitude.
 
   
 
Conclusion:  David has a barrier to the labor market and it is very 
 
difficult to match his current transferable skills to the job market at 
 
an income level anywhere near his previous level.  He has experienced a 
 
very limited job market even when he has been willing to take a lower 
 
salary because he could only bid on the portions of the job that he 
 
physically could perform.  David and I are continuing to work on his 
 
rehabilitation plan, however what he would like to do the most is 
 
carpentry and he physically is not able to perform the climbing, 
 
carrying, stooping, bending, kneeling tasks that are required in this 
 
profession.  This causes him to be severely disabled and seeking 
 
services from our agency.   (Ex. 3-1 - 3-2)
 
 
 
Claimant testified that he attempted a return to work with 
 
defendant-employer.  However, he was only able to complete three or 
 
four months of employment with him, as claimant sustained a right 
 
sprained ankle while he was climbing on a ladder at work.  Claimant 
 
testified that his employer believed claimant was "clumsy."  
 
Ultimately, claimant was laid off from his position with the present 
 
defendant-employer.
 
 
 
Claimant also performed some contract work for Steven Grubb.  The 
 
contract called for "punch list work."  After a period of time, the 
 
business slowed and claimant's services were no longer requested.
 

 
 
 
 
 
 
 
 
 
Additionally, claimant testified he performed other contract work in 
 
the area of remodeling and performing odd jobs.  Claimant's earnings 
 
were sporadic.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
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).
 
 
 
Three eminently qualified medical witnesses have provided four 
 
impairment ratings for claimant's right lower extremity.  Dr. Marsh, 
 
the treating orthopedic surgeon, has determined there is a 40 percent 
 
impairment to the right lower extremity.  Mr. Bower, an attending 
 
physical therapist and not a physician, has evaluated claimant as 
 
having a 21 percent impairment to the right lower extremity based upon 
 
his interpretation of the AMA Guides to the Evaluation of Permanent 
 
Impairment, Third Edition, Revised.  Finally, there are two ratings 
 
from the evaluating physician, Dr. Riggins.  He has used the AMA Guides 
 
to the Evaluation of Permanent Impairment, Fourth Edition.  Then upon a 
 
request from claimant's attorney, he has evaluated claimant using the 
 
AMA Guides to the Evaluation of Permanent Impairment, Third Edition, 
 
Revised.
 
 
 
Defendants argue that the Fourth Edition of the AMA Guides cannot be 
 
used to evaluate claimant because the Fourth Edition was not in 
 
existence at the time of claimant's injury.  Defendants' argument is 
 
without merit.
 
 
 
Rule 343-2.4 of the Iowa Administrative Code discusses the use of the 
 
Guides in workers' compensation proceedings.  The rule provides in 
 
relevant portion:
 
   
 
   The Guides to the Evaluation of Permanent Impairment published by 
 
the American Medical Association are adopted as a guide for determining 
 
permanent partial disabilities under Iowa Code section 85.34(2) 
 
"a"-"r."...Nothing in this rule shall be construed to prevent the 
 
presentations of other medical opinion or guides for the purpose of 
 
establishing that the degree of permanent impairment to which the 
 
claimant would be entitled would be more or less than the entitlement 
 
indicated in the AMA guide.
 
 
 
In this case there is a medical opinion which is based on the Fourth 
 
Edition of the Guides.  The undersigned is able to consider and weigh 
 
the medical opinion.
 
 
 
Both employer and insurance carrier argue that Dr. Riggins' evaluation 
 
using the Fourth Edition is inappropriate because the Fourth Edition 
 
was not in existence on the date of the work injury.  Defendants 
 
maintain Dr. Riggins is bound to use the Third Edition.  Such an 
 
argument is without merit.  The AMA Guides are just guides.  They are 
 
not absolute determinates of a claimant's impairment.  It is perfectly 
 
permissible to use the Fourth Edition to assess the degree of 
 
impairment, so long as the medical witness bases the medical opinion on 
 
the AMA Guides.
 
 
 
Moreover, in the present instance, there is good reason to consider 
 
using the AMA Guides, Fourth Edition.  In the foreword to the Fourth 
 
Edition, the editors explain:
 
   
 
   The Fourth Edition of the Guides to the Evaluation of Permanent 
 
Impairment (Guides) continues an activity begun by the American Medical 
 
Association (AMA) almost four decades ago, the purpose of which was to 
 
bring greater objectivity to estimating the degree of long-standing or 
 
"permanent" impairments.  The rationale for this new edition is that 
 
the pace of progress and advance in medicine continues to be rapid, and 
 

 
 
 
 
 
 
 
 
 
that a new look at the impairment criteria for all organ systems is 
 
advisable.  This edition has been prepared under the auspices of the 
 
AMA's Council on Scientific Affairs.
 
    ...
 
The Fourth Edition continues to convey several basic principles.  A 
 
key tenet is that the book applies only to permanent impairments, which 
 
are defined as adverse conditions that are stable and unlikely to 
 
change.  Evaluating the magnitude of these impairments is in the 
 
purview of the physician, while determining disability is usually not 
 
the physician's responsibility.  This edition emphasizes that 
 
impairment percentages derived by using Guides criteria represent 
 
estimates rather than precise determinations.  Permanent impairments 
 
are evaluated in terms of how they affect the patient's daily 
 
activities, and this edition recognizes that one's occupation 
 
constitutes part of his or her daily activities.
 
 
 
(AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, 
 
pages v-vi)
 
 
 
A deputy industrial commissioner is free to consult the Guides and to 
 
treat them as part of the record in the case, whenever a medical 
 
witness relies on the Guides in expressing a conclusion or an opinion.  
 
Shank v. Mercy Hospital Medical Center and the Second Injury Fund of 
 
Iowa, File No. 719627 (Appeal Decision September 27, 1991).  The 
 
opinion of Dr. Riggins, which is based on the Fourth Edition, is 
 
appropriate to consider in the present case.  Dr. Riggins has 
 
expressed, to the satisfaction of this deputy, how he arrived at his 
 
impairment rating.  His opinion is detailed.  It is valid and it is 
 
entitled to consideration.  This deputy relies on the opinion of Dr. 
 
Riggins.
 
 
 
Dr. Riggins' opinion is consistent with the opinion of Dr. Marsh.  Both 
 
opinions were rendered by medical doctors.  Mr. Bowers' opinion is 
 
inconsistent with the opinions of the other two medical providers.  
 
However, Mr. Bowers is not a medical doctor.  He is a physical 
 
therapist.  It is the determination of the undersigned that more weight 
 
is accorded to the opinions of the two physicians.  In light of their 
 
opinions, it is the decision of the undersigned that claimant has 
 
sustained a 45 percent permanent partial disability to the loss of a 
 
leg.  Under section 85.34(2)(o), claimant is entitled to weekly 
 
benefits for 99 weeks at the stipulated weekly benefit rate of $263.46 
 
per week.  (220 weeks x 45% = 99 weeks)
 
 
 
The next issue to address is the issue dealing with claimant's 
 
entitlement to benefits from the Second Injury Fund of Iowa.  
 
Claimant's arguments are duly considered.
 
 
 
Section 85.64 governs Second Injury Fund liability.  Before liability 
 
of the Fund is triggered, three requirements must be met.  First, the 
 
employee must have lost or lost the use of a hand, arm, foot, leg or 
 
eye.  Second, the employee must sustain a loss or loss of use of 
 
another specified member or organ through a compensable injury.  Third, 
 
permanent disability must exist as to both the initial injury and the 
 
second injury.
 
 
 
The Second Injury Fund Act exists to encourage the hiring of 
 
handicapped persons by making a current employer responsible only for 
 
the amount of disability related to an injury occurring while that 
 
employer employed the handicapped individual as if the individual had 
 
had no preexisting disability.  See Anderson v. Second Injury Fund, 262 
 
N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation - 
 
Law and Practice, section 17-1.
 
 
 
The Fund is responsible for the industrial disability present after the 
 
second injury that exceeds the disability attributable to the first and 
 
second injuries.  (Section 85.64)  Second Injury Fund of Iowa v. 
 
Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 
 
N.W.2d 355 (Iowa 1989); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 
 
300 (Iowa 1979).
 
 
 
Interest accrues on benefits the Fund pays commencing on the date of 
 
the decision.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
(Iowa 1990).
 

 
 
 
 
 
 
 
 
 
A deputy is entitled to determine the nature of claimant's injury and 
 
entitlement to compensation from the evidence presented, regardless of 
 
particular theories pled.  Shank v. Mercy Hospital Medical Center, File 
 
No. 719627 (Appeal Decision Filed August 28, 1989).
 
 
 
Claimant has met the statutory requirements for triggering the Second 
 
Injury Fund benefits.  He has sustained two permanent losses of the use 
 
of a hand, an arm, a foot, a leg or an eye.  The losses are permanent 
 
in nature.  The Second Injury Fund maintains it is not liable for 
 
benefits owed due to public policy reasons.  The Fund argues that:
 
 
 
I. CLAIMANT HAS FAILED TO PROVE ENTITLEMENT TO SECOND INJURY FUND 
 
BENEFITS.
 
     
 
     A.  Public Policy Dictates Claimant's Alleged             
 
     First Loss Cannot Be A Qualifying Loss                  
 
     for Purposes of  85.64.
 
   
 
Claimant relies on an injury producing event on May 11, 1987, as an 
 
event which caused a loss to his left lower extremity.  On that date, 
 
claimant was involved in a motorcycle accident.  According to claimant 
 
he was hospitalized for two months, wore a hip spica cast for eight 
 
months and convalesced at home about three years.  According to 
 
documentary evidence claimant had been drinking and drinking enough to 
 
record an alcohol level of 185 at a time near or after his admission to 
 
the hospital.  Second Injury Fund Exhibit A.  Alcohol related 
 
accidents, injuries and deaths are serious and present to society 
 
innumerable problems and financial strains on services such as private 
 
and public health services.  To allow anyone to seek benefits under 
 
_85.64 based upon an accident where alcohol was clearly involved is 
 
clearly contrary to public policy.  To allow anyone to seek benefits 
 
under  85.64 based upon an accident where alcohol was clearly involved 
 
is tantamount to placing a stamp of approval on drinking alcohol and 
 
driving.  To allow anyone to seek benefits under  85.64 based upon an 
 
accident where alcohol was clearly involved is tantamount to rewarding 
 
such conduct.  Such a position cannot be tolerated.  And, such a 
 
position is contrary to  85.16(2).
 
 
 
It is the determination of the undersigned deputy industrial 
 
commissioner that claimant has a 60 percent industrial disability.  He 
 
is unable to return to work in the construction industry.  He is 
 
precluded from walking on uneven ground.  Physical restrictions have 
 
been imposed on claimant.  Claimant has worked in the construction 
 
industry for most of his work life.  He has some transferable skills.  
 
He has a superior knowledge of tools.  He is mechanically inclined.  
 
 
 
However, his math and reading skills are substandard.  Academic 
 
retraining is improbable, given the test scores he had obtained through 
 
the Iowa Department of Vocational Rehabilitation.  His age is working 
 
against him.  Claimant is motivated to find meaningful work.  He has 
 
sought vocational counseling upon his own initiative.  Defendants have 
 
provided a rehabilitation specialist, but the specialist had not been 
 
allowed to engage in job seeking tasks.  Rather, she was retained 
 
merely for medical management.  This is an unfortunate situation as it 
 
is highly likely claimant would have benefited from vocational 
 
counseling.
 
 
 
In order to determine the amount due from the Second Injury Fund, the 
 
following formula is applicable:
 
 
 
   300 weeks - disability from all impairments - 10 weeks - 200 weeks 
 
x .06 weeks preexisting                                               
 
disabilities  -  99 weeks - amount of disability for which 
 
defendant employer is responsible (200 weeks x .45)      
 
   ________
 
   191 weeks - amount of weeks for which the fund is liable
 
 
 
                            ORDER
 
 
 
THEREFORE, IT IS ORDERED:
 
 
 
Defendants, employer and insurance carrier, are liable for ninety-nine 
 
(99) weeks of permanent partial disability benefits at the stipulated 
 
rate of two hundred sixty-three and 46/l00 dollars ($263.46) per week 
 
and commencing on November 20, 1991.
 
 
 
Accrued benefits are to be paid in a lump sum together with statutory 
 
interest at the rate of ten percent (10%) per year pursuant to section 
 

 
 
 
 
 
 
 
85.30, Iowa Code, as amended.
 
 
 
Defendant, Second Injury Fund of Iowa, is liable for one hundred 
 
ninety-one (191) weeks of Fund benefits commencing ninety-nine (99) 
 
weeks after the above has been paid, and it is payable at the 
 
stipulated rate of two hundred sixty-three and 46/l00 dollars 
 
($263.46).
 
 
 
Accrued benefits are to be paid in a lump sum together with statutory 
 
interest at the rate of ten percent (10%) per year pursuant to section 
 
85.30, Iowa Code, as amended and commencing on the date of the filing 
 
of the decision.
 
 
 
Costs are taxed to the defendants with the Second Injury Fund only 
 
responsible for its own costs.
 
Defendants shall file a claim activity report as requested by this 
 
decision and pursuant to rule 343 IAC 3.1.
 
 
 
     Signed and filed this ____ day of December, 1994.      
 
 
 
                                ______________________________               
 
                                MICHELLE A. McGOVERN          
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Stephen D. Lombardi
 
Attorney at Law
 
10101 University  STE 202
 
Des Moines  IA  50325
 
 
 
Mr. Robert C. Landess
 
Attorney at Law
 
Terrace Center  STE 111
 
2700 Grand Ave
 
Des Moines  IA  50312
 
 
 
Ms. Shirley A. Steffe
 
Assistant Attorney General
 
Tort Claims Division
 
Hoover State Office Bldg
 
Des Moines  IA  50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               5-1803; 3200
 
                               Filed December 7, 1994
 
                               MICHELLE A. McGOVERN
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
DAVID J. BENDICKSON,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                   File No. 957612
 
DOUBLE F. FRAMING, 
 
                                 A R B I T R A T I O N
 
     Employer, 
 
                                   D E C I S I O N
 
and       
 
          
 
GENERAL CASUALTY,  
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Defendants.    
 
___________________________________________________________
 
5-1803; 3200
 
Claimant is entitled to both permanent partial disability benefits 
 
and also benefits from the Second Injury Fund of Iowa.
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JUNE KEPLEY,                  :
 
                                          :
 
                 Claimant,                :       File No. 957705
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            SECOND INJURY FUND OF IOWA,   :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by June 
 
            Kepley against Second Injury Fund of Iowa based upon an 
 
            injury of July 24, 1990 to her left hand.  She alleges a 
 
            right hand injury of November 7, 1989 as the first loss.  
 
            Claimant seeks compensation in accordance with the Second 
 
            Injury Fund of Iowa.  The Fund contends that this is one 
 
            bilateral injury, rather than a series of two injuries.
 
            
 
                 The case heard at Des Moines, Iowa on February 24, 
 
            1994.  The record consists of testimony from June Kepley, 
 
            Sherri Barnhart and Carma Mitchell.  The record also 
 
            contains claimant's exhibits 1 through 6 and defendant's 
 
            exhibits A through E.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 June Kepley is a 48-year-old woman who developed 
 
            ganglion cysts on both wrists as a result of repetitive work 
 
            she performed for Nestaway Division at Chariton, Iowa.  
 
            (exhibit 2, page 6).  On January 29 she underwent surgical 
 
            excision of the ganglion on her right wrist.  (ex. 2, p. 8).  
 
            On February 27, 1990, she was released to resume restricted 
 
            work.  On May 29, 1990, she was released for full duty.  
 
            (ex. 2, p. 9).  The record in this case does not contain any 
 
            evidence that claimant has any permanent restrictions or 
 
            permanent impairment of any type as a result of the right 
 
            wrist ganglion.
 
            
 
                 When claimant was seen by Arnis B. Grundberg, M.D., for 
 
            her ganglion, he also diagnosed mild right carpal tunnel 
 
            syndrome.  (ex. 2, p. 8).  He found no evidence of left 
 
            carpal tunnel syndrome at that time.  (ex. 6, p. 9).
 
            
 
                 After resuming work, claimant again sought care from 
 
            the plant physician on July 30, 1990.  The plant physician 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            noted that claimant appeared to have a problem with right 
 
            carpal tunnel syndrome which was aggravated by her work.  It 
 
            was recommended that claimant return to Dr. Grundberg.  On 
 
            August 2, 1990, the plant physician released claimant from 
 
            work until she was to be seen by Dr. Grundberg.  (ex. 2, p. 
 
            7).  It appears as though August 2, 1990 was the first day 
 
            that claimant was actually taken off work or prevented from 
 
            working on account of her carpal tunnel syndrome.  
 
            
 
                 Claimant was seen by Dr. Grundberg on August 14, 1990, 
 
            at which time he diagnosed right carpal tunnel syndrome and 
 
            arranged an EMG evaluation.  That EMG evaluation revealed 
 
            bilateral carpal tunnel syndrome with the right hand being 
 
            worse than the left.  (exs. 2, p. 10; 6, p. 8).  On 
 
            September 10, 1990, surgery decompressing the right carpal 
 
            tunnel syndrome was performed by Dr. Grundberg.  On October 
 
            1, 1990, decompression of the left carpal tunnel was 
 
            performed by Dr. Grundberg.  (exs. 2, p. 11; 6, pp. 8 & 9).  
 
            Claimant did not return to work between the two surgeries.  
 
            
 
                 Following initial healing from the surgery claimant 
 
            continued to have problems.  She experienced a return of 
 
            numbness in her right ring and long fingers.  (ex. 2, p. 
 
            12).  Claimant was released to return to light duty work 
 
            effective October 12, 1990 and again December 10, 1990.  The 
 
            employer made no conforming work available.  Dr. Grundberg 
 
            advised that if she worked in violation the restrictions she 
 
            would have an increased risk of developing a recurrence of 
 
            the carpal tunnel syndrome.  He gave her the option of 
 
            resuming full work or quitting and finding other employment.  
 
            (exs. 2, p. 12; 6, p. 15).   Claimant chose to resume full 
 
            duty work.  (ex. 2, p. 13).
 
            
 
                 Dr. Grundberg has evaluated claimant and determined 
 
            that she has a 5 percent permanent impairment of each hand 
 
            as a result of residuals of carpal tunnel syndrome.  (exs. 
 
            2, p. 14; 6, p. 16).
 
            
 
                 Dr. Grundberg explained that the problems with 
 
            ganglions are separate injuries which are distinct from the 
 
            carpal tunnel syndrome.  (ex. 6, p. 19).  There is nothing 
 
            in the record of this case to indicate that claimant has any 
 
            permanent disability as a result of the ganglions.  All the 
 
            disability appears to be the result of her carpal tunnel 
 
            syndrome.  
 
            
 
                 Though the record is far from overwhelming, the greater 
 
            weight of the evidence seems to indicate that claimant's 
 
            carpal tunnel complaints had an earlier onset in her right 
 
            hand than they did in her left.  Nevertheless, the record 
 
            shows August 2, 1990 to be the first day claimant was 
 
            actually prevented from working as a result of carpal tunnel 
 
            syndrome complaints effecting either hand.  Once she was 
 
            taken off work, she remained off work until recuperation 
 
            from both carpal tunnel surgeries (except for a brief return 
 
            from August 14, 1990 until approximately the date of her 
 
            right hand carpal tunnel surgery on September 10, 1990).  
 
            There was no return to work between the two carpal tunnel 
 
            surgeries.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 The date of injury is not the date that an ailment is 
 
            diagnosed.  The date of injury is the last date of work 
 
            before the disability has its onset.  Oscar Mayer Foods 
 
            Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992).
 
            
 
                 In this case, June Kepley's right carpal tunnel 
 
            syndrome was diagnosed and present long before she began 
 
            missing work in accordance with the plant physician's 
 
            recommendation on or about August 2, 1990.  The parties seem 
 
            to have settled upon a date of injury of July 24, 1990 for 
 
            the left carpal tunnel syndrome.  Interestingly, the left 
 
            carpal tunnel syndrome was not diagnosed until the EMG tests 
 
            were conducted in mid or late August 1990.  Perhaps claimant 
 
            was off work as a result of disability commencing on July 
 
            24, 1990, but the plant physician did not actually take her 
 
            off work until August 2, 1990.  Despite this discrepancy in 
 
            dates, the undersigned takes no issue with the date of July 
 
            24, 1990, as being the date of injury since it is supported 
 
            by the filing of a first report of injury and it is the date 
 
            alleged by the claimant in her petition.  Changing the date 
 
            to August 2, 1990 does not alter the outcome of this case.
 
            
 
                 Carpal tunnel syndrome in this case resulted from 
 
            cumulative trauma as indicated by Dr. Grundberg and the 
 
            plant physician.  It is well established by the record that 
 
            claimant's condition is work related.  
 
            
 
                 The principal point of dispute in this case is 
 
            determining whether there are two injuries or only one.  
 
            From the record made it is determined that this case 
 
            involves one bilateral carpal tunnel syndrome injury.  That 
 
            injury produced a 5 percent permanent impairment of each of 
 
            claimant's hands.  The earlier right ganglion injury is not 
 
            shown to have produced any permanent disability of any 
 
            degree.  
 
            
 
                 The benefit for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 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.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 It is determined that the Second Injury Fund of Iowa 
 
            has no liability in this case since the disability results 
 
            from the bilateral carpal tunnel syndrome injury of on or 
 
            about July 24, 1990.  
 
            
 
                 The employer did not participate in this hearing and no 
 
            determination is made with regard to the scheduled injury 
 
            benefit to be paid to the claimant in accordance with 
 
            section 85.34(2)(s).  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            the Second Injury Fund of Iowa in this proceeding.
 
            
 
                 It is further ordered that the costs of this action 
 
            against the Second Injury Fund of Iowa are assessed against 
 
            the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this __________ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Christopher Spaulding
 
            Attorney at Law
 
            840 5th Ave
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Stephen Moline
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
            
 
            
 
            
 
                                              1808 2209 3202
 
                                              Filed May 31, 1994
 
                                              Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JUNE KEPLEY,   
 
                      
 
                 Claimant,                      File No. 957705
 
                      
 
            vs.                              A R B I T R A T I O N
 
                            
 
            SECOND INJURY FUND OF IOWA,         D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ------------------------------------------------------------
 
            1808 2209 3202
 
            
 
            A ganglion cyst and carpal tunnel syndrome were held to be 
 
            separate, distinct injuries though they both resulted from 
 
            repetitive employment with the same employer over much of 
 
            the same period of time.  The carpal tunnel syndrome left a 
 
            5 percent permanent impairment of each hand but the record 
 
            failed to show any permanent impairment from the ganglions.  
 
            Claimant was diagnosed with right carpal tunnel syndrome in 
 
            late 1989, had surgery for a right ganglion in January 1990, 
 
            returned to work and then developed right carpal tunnel 
 
            complaints.  EMG tests showed carpal tunnel syndrome 
 
            bilaterally.  
 
            
 
            The date of injury was held to be the first day disability 
 
            from working on account of the carpal tunnel syndrome.  
 
            There was a brief return to work while diagnostic testing 
 
            was underway.  When testing was completed, surgery on the 
 
            right was performed followed a few weeks later by surgery on 
 
            the left.  It was held that the carpal tunnel syndrome was 
 
            but one injury to be compensated under section 85.34(2)(s).  
 
            The claim against the Second Injury Fund of Iowa was denied.  
 
            The date of injury was held to be determined under the 
 
            cumulative trauma rule.  The fact of an earlier diagnosis 
 
            did not change the date of injury from the date of 
 
            disability to the date of diagnosis.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            ROBERT ACHENBACH,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 958083
 
            CITY OF COUNCIL BLUFFS,         :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            ARGONAUT INSURANCE,             :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                 The record has been reviewed de novo on appeal.
 
            
 
                                      ISSUE
 
            
 
                 The issue on appeal is:
 
            
 
                 Whether the defendants' motion for summary judgment was 
 
            properly granted.  This issue involves the issue of whether 
 
            claimant's claim is barred by the statute of limitations.  
 
            In resolving this matter the issue of whether payments made 
 
            under Iowa Code chapters 410 and 411 would extend the 
 
            statute of limitations to three years pursuant to Iowa Code 
 
            section 85.26(2) must also be decided.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant filed an original notice and petition seeking 
 
            weekly and medical benefits on April 8, 1993.  The alleged 
 
            injury date as amended July 16, 1993 was November 19, 1989.  
 
            Defendants' filed a motion for summary judgment.  Defendants 
 
            state and claimant does not dispute that the claimant was 
 
            paid full pay from the city's general fund during the time 
 
            off work pursuant to Iowa Code section 411.6(5).  Claimant 
 
            was not paid weekly benefits under Iowa Code Chapter 85.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 Rule 343 IAC 4.35 makes Iowa Rules of Civil Procedure 
 
            237 through 240 applicable to motions of summary judgment 
 
            before this agency.
 
            
 
                 The standards applicable to a motion for summary 
 
            judgment are well settled in Iowa.  Summary judgement should 
 
            be rendered when the record before the court shows that no 
 
            genuine issue exists as to any material fact and that the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            moving party is entitled to judgment as a matter of law.  
 
            Iowa R.Civ.P. 237(c); Suss v. Schammel, 375 N.W.2d 252, 254 
 
            (Iowa 1985); Brown v. Monticello State Bank, 360 N.W.2d 81, 
 
            83-84 (Iowa 1984).
 
            
 
                 The burden of showing that there is no genuine issue of 
 
            material fact is upon the party moving for summary judgment.  
 
            Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 350 (Iowa 
 
            1987); Northrup v. Farmland Industries, Inc., 372 N.W.2d 
 
            193, 195 (Iowa 1985); Matherly v. Hanson, 359 N.W.2d 450, 
 
            453 (Iowa 1984).  The resisting party, however, must set 
 
            forth specific facts showing there is a genuine issue for 
 
            trial.  Iowa R.Civ.P. 237(e); Iowa Civil Rights Commissioner 
 
            v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973); 
 
            McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 812, 
 
            813 (Iowa app. 1987), Pappas v. Hughes, 406 N.W.2d 459, 460 
 
            (Iowa app. 1987).  The resisting party may not rely solely 
 
            on legal conclusions to show there is a genuine issue of 
 
            material fact justifying denial of summary judgment.  Id. at 
 
            460; Byker v. Rice, 360 N.W.2d 572, 575 (Iowa App. 1984).
 
            
 
                 When confronted with a motion for summary judgment, the 
 
            undersigned or agency is required to examine; in light most 
 
            favorable to the party opposing the motion, the entire 
 
            record before it, including the pleadings, admissions; 
 
            depositions; answers to interrogatories; and affidavits, if 
 
            any; to determine whether any genuine issue of material fact 
 
            is generated thereby.  Sparks, 408 N.W.2d 347, 350; Drainage 
 
            District No. 119, Clay County v. Incorporated City of 
 
            Spencer, 268 N.W.2d 493, 499-500 (Iowa 1978).  A fact 
 
            question is generated if reasonable minds can differ on how 
 
            the issue should be resolved.  Northrup, 372 N.W.2d 193, 
 
            195; Henkel v. R. & S. Bottling Co., 323 N.W.2d 185, 197-88 
 
            (Iowa 1982).  If upon examination of the entire record the 
 
            undersigned determines no such issue is present, and the 
 
            movant is entitled to judgment as a matter of law, entry of 
 
            summary judgment is proper.  Sparks, 408 N.W.2d 347, 350.
 
            
 
                 Summary judgment is a proper remedy in cases where its 
 
            application advances its salutary objective of avoiding 
 
            useless, expensive and time-consuming trials where there 
 
            exists no genuine, factual issue to be tried.  Diamond 
 
            Products v. Skipton Painting and Insulation, Inc., 392 
 
            N.W.2d 137, 138 (Iowa 1986); Neoco, Inc. v. Christenson, 312 
 
            N.W.2d 559, 560 (Iowa 1981).
 
            
 
                 Pursuant to rule 237(e), "When a motion for summary 
 
            judgment is made and supported..., an adverse party may not 
 
            rest upon the mere allegations...of his pleading, but his 
 
            response, by affidavits or as otherwise provided in this 
 
            rule, must set forth specific facts showing that there is a 
 
            genuine issue for trial.  If he does not so respond, summary 
 
            judgment, if appropriate, shall be entered against him."
 
            
 
                 [Iowa Code sections 85.26(l) and (2) provide:
 
            
 
                   1.  An original proceeding for benefits under 
 
                 this chapter or chapter 85A, 85B, or 86, shall not 
 
                 be maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                   2.  An award for payments or an agreement for 
 
                 settlement provided by section 86.13 for benefits 
 
                 under this chapter or chapter 85A or 85B, where 
 
                 the amount has not been commuted, may be reviewed 
 
                 upon commencement of reopening proceedings by the 
 
                 employer or the employee within three years from 
 
                 the date of the last payment of weekly benefits 
 
                 made under the award or agreement.  If an award 
 
                 for payments or agreement for settlement as 
 
                 provided by section 86.13 for benefits under this 
 
                 chapter or chapter 85A or 85B has been made and 
 
                 the amount has not been commuted, or if a denial 
 
                 of liability is not filed with the industrial 
 
                 commissioner and notice of the denial is not 
 
                 mailed to the employee, on forms prescribed by the 
 
                 commissioner, within six months of the 
 
                 commencement of weekly compensation benefits, the 
 
                 commissioner may at any time upon proper 
 
                 application make a determination and appropriate 
 
                 order concerning the entitlement of an employee to 
 
                 benefits provided for in section 85.27.  The 
 
                 failure to file a denial of liability does not 
 
                 constitute an admission of liability under this 
 
                 chapter or chapter 85A, 85B, or 86.
 
            
 
                 Weekly benefits paid to a claimant in lieu of workers' 
 
            compensation benefits are considered workers' compensation 
 
            benefits for purposes of determining the appropriate statute 
 
            of limitations.  The nature of the payments determines 
 
            whether the payments are workers' compensation benefits or 
 
            benefits in lieu thereof.  See e.g. McDaniel v. Chemplex 
 
            Company, File No. 698042 (Appeal Decision December 22, 
 
            1987).
 
            
 
                 In the instant case claimant was paid benefits pursuant 
 
            to Iowa Code section 411.6(5).  Iowa Code section 85.1 
 
            provides in relevant part:
 
            
 
                   Except as provided in subsection 6 of this 
 
                 section, this chapter does not apply to:
 
            
 
                     ....
 
            
 
                   4.  Persons entitled to benefits pursuant to 
 
                 chapter 410 and 411.
 
            
 
                     ....
 
            
 
                   6.  Employers may with respect to an employee or 
 
                 a classification of employees exempt from coverage 
 
                 provided by this chapter pursuant to subsection 1, 
 
                 2, 3, 4, or 5, other than the employee or 
 
                 classification of employees with respect to whom a 
 
                 rule of liability or a method of compensation is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 established by the Congress of the United States, 
 
                 assume a liability for compensation imposed upon 
 
                 employers by this chapter, for the benefit of 
 
                 employees within the coverage of this chapter, by 
 
                 the purchase of valid workers' compensation 
 
                 insurance specifically including the employee or 
 
                 classification of employees.  The purchase of and 
 
                 acceptance by an employer of valid workers' 
 
                 compensation insurance applicable to the employee 
 
                 or classification of employees constitutes an 
 
                 assumption by the employer of liability without 
 
                 any further act on the part of the employer, but 
 
                 only with respect to the employee or 
 
                 classification of employees as are within the 
 
                 coverage of the workers' compensation insurance 
 
                 contract and only for the time period in which the 
 
                 insurance contract is in force.  Upon an election 
 
                 of such coverage, the employee or classification 
 
                 of employees shall accept compensation in the 
 
                 manner provided by this chapter and the employer 
 
                 shall be relieved from any other liability for 
 
                 recovery of damage, or other compensation for 
 
                 injury.
 
            
 
                 The Iowa Supreme Court has recognized that these 
 
            sections prohibit claimants who are entitled to benefits 
 
            under chapter 411 from receiving additional benefits under 
 
            chapter 85.  Johnson v. City of Red Oak, 197 N.W.2d 548, 549 
 
            (Iowa 1972).  In Goebel v. City of Cedar Rapids, 267 N.W.2d 
 
            388, 390 (Iowa 1978) the court stated:  "We think it is fair 
 
            to conclude from this history that workers' compensation and 
 
            chapter 411 benefits serve equivalent purposes and are 
 
            mutually exclusive."
 
            
 
                 Claimant received benefits under Iowa Code section 
 
            411.6(5).  The nature of the payments claimant received was 
 
            not workers' compensation benefits nor benefits in lieu of 
 
            workers' compensation benefits.  Claimant has not been paid 
 
            benefits under Iowa Code Chapter 85.  The three year statute 
 
            of limitations found in Iowa Code section 85.26(2) is not 
 
            applicable.  Sawyer v. National Transp. Co., 448 N.W.2d 306 
 
            (Iowa 1989).
 
            
 
                 The alleged injury date is November 19, 1989.  
 
            Claimant's original proceeding was commenced on April 8, 
 
            1993.  Claimant's petition was filed more than two years 
 
            after the alleged injury.  Claimant's action is barred by 
 
            Iowa Code section 85.26(1).  There is no issue of material 
 
            fact in this case.  As a matter of law, the employer and 
 
            insurance carrier are entitled to have summary judgment in 
 
            their favor against the claimant.]
 
            
 
                 The supreme court has long recognized that the summary 
 
            judgment procedure is properly invoked to avoid trial where 
 
            no factual issues exist.  See e.g. Neoco, Inc. v. 
 
            Christenson, 312 N.W.2d 559 (Iowa 1981).
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      
 

 
            
 
            Page   5
 
            
 
 
 
            
 
                                      ORDER 
 
            
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants' motion for summary judgment is 
 
            granted.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Avenue
 
            P O Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Gregory G. Barntsen
 
            Attorney at Law
 
            35 Main Place
 
            P O Box 249
 
            Council Bluffs, Iowa  51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             2402; 2901; 2906
 
                                             Filed January 18, 1994
 
                                             BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
                                            
 
            ROBERT ACHENBACH,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 958083
 
            CITY OF COUNCIL BLUFFS,         :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            ARGONAUT INSURANCE,             :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            2402; 2901; 2906
 
            
 
            Claimant, police officer, received benefits pursuant to Iowa 
 
            Code Chapter 411.  These benefits were found not to be 
 
            workers' compensation benefits nor benefits in lieu of 
 
            workers' compensation benefits.  Three year statute of 
 
            limitations was not applicable.  Claimant's action was 
 
            barred by two year statute of limitations in Iowa Code 
 
            section 85.26(1).