BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         THOMAS ROBERTS,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 958248
 
         JOHN MORRELL & COMPANY,         :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         NATIONAL UNION FIRE INSURANCE   :
 
         COMPANY,                        :
 
                                         :
 
              Insurance Carrier,         :
 
                                         :
 
         and                             :
 
                                         :
 
         SECOND INJURY FUND OF IOWA,     :
 
                                         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
              A.  The deputy commissioner erred in finding that            
 
              claimant suffered a permanent disability regarding      
 
              his first injury.
 
         
 
              B.  The deputy commissioner erred in finding that            
 
              claimant's industrial disability was 20 percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed April 2, 1993 are adopted as final agency action.
 
         
 
                       
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed April 2, 1993 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              The first issue to be determined is the onset date of 
 
         claimant's two injuries.  
 
         
 
              The record clearly indicates that claimant first experienced 
 
         left wrist pain on August 16, 1985.  He was diagnosed by Dr. 
 
         Redline and treated conservatively.  His symptoms persisted and a 
 
         diagnosis of left carpal tunnel syndrome was made.  Dr. Leonine 
 
         performed surgery on February 27, 1986.  Clearly, the onset date 
 
         of claimant's left extremity impairment was August 16, 1985 
 
         (exhibit 3, page 29).  
 
         
 
              As to claimant's right hand and wrist problems, the record 
 
         clearly demonstrates that these surfaced on June 20, 1990 (ex. 3, 
 
         p. 80).  Claimant continued to work and was treated 
 
         conservatively until August 13, 1990, when Dr. Beefcake took him 
 
         off work in order to get him ready for surgery on August 22, 
 
         1990.  The record clearly demonstrates that the onset of 
 
         claimant's injury occurred on June 20, 1990, when he first 
 
         reported his symptoms to the company physician and conservative 
 
         treatment commenced.  
 
         
 
              *****
 
         
 
              Since claimant has suffered an injury, the next question to 
 
         be resolved is whether the injury has caused a permanent 
 
         disability.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injuries of August 16, 
 
         1985 and June 20, 1990, are causally related to the disability on 
 
         which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
         N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 N.W.2d 
 
         607, 613-14 (Iowa 1945).  A possibility is insufficient; a 
 
         probability is necessary.  Burt v. John Deere Waterloo Tractor 
 
         Works, 73 N.W.2d 732, 738 (Iowa 1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 
 
         1960).  Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 73 
 
         N.W.2d at 738.  The opinion of the experts need not be couched in 
 
         definite, positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  Moreover, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Sondag, 220 N.W.2d at 907.  Finally, the weight 
 
         to be given to such an opinion is for the finder of fact, and 
 
         that may be affected by the completeness of the premise given the 
 
         expert and other material circumstances.  Bodish, 133 N.W.2d at 
 
         870; Musselman, 154 N.W.2d at 133.  The supreme court has also 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         observed that greater deference is ordinarily accorded expert 
 
         testimony where the opinion necessarily rests on medical 
 
         expertise.  Sondag, 220 N.W.2d at 907.
 
         
 
              The uncontroverted medical opinion indicates that claimant's 
 
         bilateral carpal tunnel syndrome has caused permanent disability.  
 
         Dr. Sprague gave claimant a 10 percent left upper extremity 
 
         impairment rating and Dr. Kuhnlein gave claimant a 10 percent 
 
         right upper impairment rating.  These ratings were based on 
 
         residuals from carpal tunnel syndrome.
 
         
 
              Claimant alleges that the combined disability caused by his 
 
         injuries have caused industrial disability which should be 
 
         compensated by the Second Injury Fund.
 
         
 
              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 
 

 
         
 
         Page   4
 
         
 
         
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              At the time of his second injury in 1990, claimant was 46 
 
         years old.  He is a high school graduate and has worked in the 
 
         past as a baker, assistant manager of data processing, office 
 
         manager, sales representative, and marina manager.  Claimant has 
 
         worked as a line butcher for employer since 1982.  At the time of 
 
         his injury in June 1990 he was earning $8.40 per hour.  He 
 
         currently earns $8.85 per hour.  Claimant does not have a loss of 
 
         earnings.  However, he does have a minimal loss of earning 
 
         capacity.  He has minimal physical limitations and is not 
 
         restricted from performing his usual job with employer.  His 
 
         complaints of pain, numbness and weak grip strength are not 
 
         supported by the medical evidence.  Claimant has not needed 
 
         medical care or treatment since he was released to return to work 
 
         in October 1990.
 
         
 
              *****
 
         
 
              The next issue to be determined is whether claimant is 
 
         entitled to Second Injury Fund benefits.  
 
         
 
              Section 85.64 governs Second Injury Fund liability.  Before 
 
         liability of the Fund is triggered, three requirements must be 
 
         met.  First, the employee must have lost or lost the use of a 
 
         hand, arm, foot, leg or eye.  Second, the employee must sustain a 
 
         loss or loss of use of another specified member or organ through 
 
         a compensable injury.  Third, permanent disability must exist as 
 
         to both the initial injury and the second injury.  
 
         
 
              The Second Injury Fund Act exists to encourage the hiring of 
 
         handicapped persons by making a current employer responsible only 
 
         for the amount of disability related to an injury occurring while 
 
         that employer employed the handicapped individual as if the 
 
         individual had had no preexisting disability.  See Anderson v. 
 
         Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, 
 
         Iowa Workers' 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 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         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).
 
         
 
              In this instance, there is sufficient evidence to show that 
 
         claimant sustained a first permanent injury to his left 
 
         wrist/hand in 1985.  Claimant sustained a second injury to his 
 
         right wrist/hand in 1990.  The medical evidence that is most 
 
         persuasive indicates that claimant has a 10 percent functional 
 
         impairment to his left upper extremity and a 10 percent 
 
         impairment to his right upper extremity.  According to the Guides 
 
         to the Evaluation of Permanent Impairment, third ed. (revised), 
 
         10 percent of the upper extremity is an 11 percent impairment of 
 
         the hand (table 2, p. 16).
 
         
 
              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 he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).  
 
         
 
              *****
 
         
 
              [In light of the fact that claimant is still working, has no 
 
         restrictions, and has not lost earnings as a result of his work 
 
         injury, his disability is minimal.  The testimony of the 
 
         vocational rehabilitation worker that claimant would suffer a 
 
         loss of earnings in the future if he were to lose his job 
 
         constitutes speculation.  An award of benefits must be based on 
 
         claimant's present circumstances.
 
         
 
              It does not appear that claimant's loss of earning capacity 
 
         exceeds the disability he is entitled to for the injury to his 
 
         right hand.  Claimant is entitled to receive 20.9 weeks of 
 
         benefits for an 11 percent impairment of his right hand.  The 
 
         Second Injury Fund of Iowa is liable only for any disability 
 
         caused by the combined effect of claimant's prior loss and 
 
         current injury.  Claimant's current disability does not exceed 
 
         the 20.9 weeks for los of his right hand.
 
         
 
              If claimant's circumstances change in the future, claimant 
 
         is entitled to seek review-reopening at that time.]
 
         
 
              The next issue to be determined is the commencement date of 
 
         permanent partial disability benefits.
 
         
 
              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 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         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).
 
         
 
              Healing period benefits may be characterized as that period 
 
         during which there is a reasonable expectation of improvement of 
 
         a disabling condition and ends when maximum medical improvement 
 
         is reached.  Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 
 
         N.W.2d 60, 65 (1981).  In discussing the concept of healing 
 
         period as contemplated by Iowa Code section 85.34(1) (1991), the 
 
         Kubli court observed that recuperation refers to that condition 
 
         in which healing is complete and the extent of the disability can 
 
         be determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 
         generally terminates at the time the attending physician 
 
         determines that the employee has recovered as far as possible 
 
         from the effects of the injury.  Kubli, 312 N.W.2d at 65.  When a 
 
         permanent rating is given, it indicates that the physician does 
 
         not expect the claimant to improve and this conclusion meets the 
 
         criteria of Iowa Code section 85.34(1) and Thomas v. William 
 
         Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Ia. Ct. App. 1984).  
 
         The finding of a termination of healing period necessarily 
 
         precludes the discussion of the running award.  Hoskins v. Quaker 
 
         Oats, Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181, 
 
         185 (App. 1985).  Since the healing period contemplates an 
 
         inability to work, a healing period cannot start until claimant 
 
         leaves work.  This is true even if claimant is experiencing 
 
         symptoms on the job but does not leave work for a variety of 
 
         reasons.  Boyd v. Western Home, file number 890207 (Iowa 
 
         Industrial Commissioner App. June 26, 1991).
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              The greater weight of the evidence supports the finding that 
 
         claimant was taken off work on August 13, 1990, by Dr. Beefcake 
 
         and released to return to work on October 31, 1990.  Therefore, 
 
         claimant's healing period ended on October 31, 1990, and payment 
 
         of permanent partial disability benefits by employer commences on 
 
         November 1, 1990.  The Second Injury Fund liability begins at the 
 
         end of the employer's liability for weekly benefits.  Finneman v. 
 
         Wilson Foods Corp., file numbers 834479 & 913590 (App. Dec. March 
 
         17, 1993).
 
         
 
              According to the July 1, 1989, Guide to Iowa Workers' 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         Compensation Claim Handling, claimant's proper rate of 
 
         compensation is $250.68 per week ($373.28 gross weekly wage, 
 
         married with five exemptions).  
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants employer/insurance carrier shall pay 
 
         claimant twenty point nine (20.9) weeks of permanent partial 
 
         disability benefits at the rate of two hundred fifty and 68/100 
 
         dollars ($250.68) per week commencing November 1, 1990.
 
         
 
              That defendants employer/insurance carrier pay the costs of 
 
         these proceedings pursuant to rule 343 IAC 4.33.
 
         
 
              That defendants employer/insurance carrier receive credit 
 
         for benefits previously paid.
 
         
 
              That defendant employer and claimant shall determine the 
 
         proper amount of credit for benefits previously paid by defendant 
 
         employer.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue on benefits paid by employer 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              That defendants file claim activity reports as required by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              
 
              Signed and filed this ____ day of January, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Paul Deck
 
         Attorney at Law
 
         635 Frances Bldg
 
         Sioux City, Iowa  51101
 
         
 
         Mr. Bryan J. Arneson
 
         Attorney at Law
 
         STE 340 Insurance Center
 
         507 7th St
 
         Sioux City, Iowa  51101
 
         
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. James F. Christenson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa  50319
 
         
 
 
         
 
 
 
 
 
 
 
                                            5-1402.40; 5-3202; 5-1802
 
                                            Filed January 31, 1994
 
                                            BYRON K. ORTON
 
                   
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         THOMAS ROBERTS,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 958248
 
         JOHN MORRELL & COMPANY,         :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         NATIONAL UNION FIRE INSURANCE   :
 
         COMPANY,                        :
 
                                         :
 
              Insurance Carrier,         :
 
                                         :
 
         and                             :
 
                                         :
 
         SECOND INJURY FUND OF IOWA,     :
 
                                         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         
 
         5-1402.40
 
         Found that claimant had a 1985 first injury to his left 
 
         wrist/hand (not upper extremity) and a second injury in 1990 to 
 
         his right hand/wrist (not upper extremity).  
 
         
 
         
 
         5-3202
 
         
 
              Second Injury Fund benefits were not granted.  Claimant 
 
         proved a first loss of use of his right hand and a second loss of 
 
         use to his left hand.  The Second Injury Fund is responsible for 
 
         the excess industrial disability over the combined scheduled loss 
 
         of the first and second injuries.  Claimant's disability did not 
 
         exceed the scheduled amounts.
 
         
 
         5-1802
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         Claimant was taken off work by his treating surgeon on August 13, 
 
         1990, and released to return to work on October 31, 1990.  
 
         Claimant's healing period ended when he was released to return to 
 
         work.  The commencement date for permanent partial disability 
 
         benefits is November 1, 1990.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            THOMAS ROBERTS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 958248
 
            JOHN MORELL & CO.,            :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS.,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Thomas 
 
            Roberts, claimant, against John Morrell and Company, 
 
            employer, and National Union Fire Insurance, insurance 
 
            carrier, as well as against the Second Injury Fund of Iowa, 
 
            defendants, to recover benefits as the result of an alleged 
 
            injury to the left upper extremity and an alleged injury to 
 
            the right upper extremity.  This matter came on for hearing 
 
            in Sioux City, Iowa, on March 25, 1993.  The record was 
 
            considered fully submitted at the close of the hearing.  The 
 
            claimant was present and testified.  Also present and 
 
            testifying was Dale Stark.  The documentary evidence 
 
            identified in the record consists of claimant's exhibits 1 
 
            through 3 and defendants' exhibit A.  
 
            
 
                                      ISSUES
 
            
 
                 1.  The appropriate dates of claimant's injuries;
 
            
 
                 2.  The appropriate rate of claimant's second injury;
 
            
 
                 3.  The extent of permanent partial disability benefits 
 
            for which employer is liable;
 
            
 
                 4.  The commencement date of permanent partial 
 
            disability benefits; and
 
            
 
                 5.  The extent of claimant's entitlement to Second 
 
            Injury Fund benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on May 10, 1944, and graduated from 
 
            high school in 1963.  Claimant served in the United States 
 
            Army from 1966 through 1968.  He received training as a cook 
 
            and baker.  Claimant attended the Electronic Computer 
 
            Programming Institute from 1968 through 1969 and received an 
 
            associate degree in computer programming.  His work activity 
 
            includes cook, baker, data processor, sales representative 
 
            and office manager (exhibit 1).  Claimant has worked for 
 
            both John Morrell and Company and its predecessor, Iowa Meat 
 
            Processing, since 1982.  In 1985, he worked on the belly 
 
            line pulling ribs.  He injured his left upper extremity and 
 
            underwent surgery in February 1986.  He returned to work in 
 
            April 1986 on the belly line.  He then injured his right 
 
            upper extremity and underwent surgery in August 1990.  He 
 
            returned to work with employer three months later strapping 
 
            boxes.  In February 1992, he started aligning bellies.  
 
            Claimant continues to work for employer in this capacity.  
 
            He earns $8.85 per hour.  When he returned to work after 
 
            surgery in August 1990 he earned $8.35 per hour.  
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            on August 16, 1985, claimant was seen at Morningside Family 
 
            Practice with left wrist pain after pushing down with a 
 
            knife while working on the belly line.  John N. Redwine, 
 
            D.O., diagnosed left wrist strain and prescribed a splint.  
 
            Claimant was seen for follow-up evaluation on October 21, 
 
            1985, and at this time Dr. Redwine prescribed Motrin.  
 
            Follow-up examinations in October and November 1985 revealed 
 
            a diagnosis of carpal tunnel syndrome in the left hand with 
 
            positive Tinel's and Phalen's signs.  Claimant's symptoms 
 
            persisted and Dr. Redwine referred claimant to N.R. Lentini, 
 
            M.D., for further evaluation on February 24, 1986 (ex. 3, 
 
            pages 29-56).
 
            
 
                 On June 13, 1986, Dr. Lentini reported that he 
 
            performed release of claimant's left median nerve on 
 
            February 27, 1986.  By April 17, 1986, it was determined 
 
            that claimant had healed and was experiencing no pain.  He 
 
            was released to return to work on the following Monday.  Dr. 
 
            Lentini was not aware of any disability sustained as a 
 
            result of this condition (ex. A).
 
            
 
                 On May 19, 1988, the parties submitted to the 
 
            industrial commissioner an application for compromise 
 
            special case settlement.  The agreement was approved by a 
 
            deputy industrial commissioner on June 2, 1988, and ordered 
 
            defendants to pay claimant the sum of $6557 (ex. A).
 
            
 
                 Claimant testified that he returned to work on April 
 
            21, 1986, on the belly line grading ribs.  He was paid $8.20 
 
            per hour.  On February 13, 1990, claimant sought medical 
 
            attention for left shoulder pain and trembling and tingling 
 
            of the left hand.  He was diagnosed with left shoulder 
 
            tendonitis and light duty was recommended.  At this time, 
 
            claimant was running a wizard knife.  Because of his 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            symptoms, claimant was put on a straight knife cutting ribs.  
 
            On May 9, 1990, claimant was released from all restrictions 
 
            (ex. 3, pp. 64-79).
 
            
 
                 On June 20, 1990, claimant reported to employer's 
 
            physician right hand shoulder pain.  Physical findings 
 
            revealed a positive Phalen's and Tinel's sign and a 
 
            diagnosis of carpal tunnel syndrome.  Claimant's symptoms 
 
            persisted and on July 27, 1990, a referral was made to Allan 
 
            Pechacek, M.D.  On August 13, 1990, Dr. Pechacek indicated 
 
            that EMG and nerve conduction studies confirmed right carpal 
 
            tunnel syndrome.  He took claimant off work and performed 
 
            surgery on August 22, 1990.  Dr. Pechacek released claimant 
 
            to return to work on October 31, 1990.  He imposed no 
 
            restrictions at this time (ex. 3, pp. 80-94).
 
            
 
                 Claimant returned to Dr. Pechacek on November 29, 1990, 
 
            with complaints of soreness and pain across the base of the 
 
            palm.  Dr. Pechacek felt that claimant could return to his 
 
            regular job using the wizard knife in his left hand and 
 
            manipulating the meat with his right hand.  Claimant was 
 
            rechecked by Dr. Pechacek on December 27, 1990.  Claimant 
 
            made no complaints of numbness or tingling in his wrist, 
 
            hand or fingers either with use or at rest.  An examination 
 
            revealed that his wound was well healed and non-tender.  His 
 
            wrist range of motion was essentially normal in flexion, 
 
            extension, radial and ulnar deviation.  His thumb and finger 
 
            motion was normal.  Sensation to light touch and pin prick 
 
            seemed essentially normal in the median and ulnar and radial 
 
            nerve distribution.  He had no definable weakness or 
 
            abduction of the fingers against resistance or with 
 
            abduction and opposition of the thumb with pinch.  Dr. 
 
            Pechacek stated, "Overall he seems to be doing well and has 
 
            made a good recovery.  In view of the fact that he has 
 
            nearly normal sensation and good strength and motion would 
 
            really have little or no residual permanent impairment."  
 
            (ex. 3, p. 99).
 
            
 
                 Claimant was referred by employer to John Kuhnlein, 
 
            D.O., medical director of the Occupational Health Network 
 
            for an impairment rating evaluation on April 11, 1991.  Dr. 
 
            Kuhnlein reported on physical examination as follows:  
 
            
 
                 ...There is 5/5 intrinsic hand muscle strength.  
 
                 No atrophy or wasting is noted in either thenar 
 
                 eminence.  There is full range of motion of all 
 
                 the digits.  No pain is noted with resistance.  
 
                 Phalen's test is negative.  Tinel's test is 
 
                 negative.  Finkelstein's and Allen's tests are 
 
                 negative.  Grip strength on the left was 140 
 
                 pounds; on the right it was 100 pounds.  He is 
 
                 left-hand dominant....
 
            
 
                 Sensory exam shows a mild sensory loss in the 
 
                 distal fingertips of the second, third and fourth 
 
                 fingers.  Other sensory exam is unremarkable.  
 
                 Vascular status is intact.
 
            
 
            (exhibit 3, page 106)
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 On the basis of the examination, Dr. Kuhnlein assigned 
 
            claimant a 10 percent impairment rating to the right upper 
 
            extremity as a result of the injury sustained on or about 
 
            June 1990.  
 
            
 
                 On August 2, 1991, claimant was referred by his 
 
            attorney to R.I. Sprague, D.C., for a possible impairment 
 
            rating to the left wrist and hand.  On examination, Dr. 
 
            Sprague reported as follows:
 
            
 
                  Examination of the left hand reveals a 
 
                 well-healed surgical scar on the palmer surface of 
 
                 the wrist approximately one to two inches in 
 
                 length.  There are no signs of redness or 
 
                 inflammation or any sort of residuals from poor 
 
                 wound healing.  The wrist is normal in all ranges 
 
                 of motion accept that it is limited to 35o flexion.  
 
                 Sensory examination of the hand is normal to 
 
                 two-part discrimination and heat and cold with 
 
                 particular emphasis of the examination on the 
 
                 median distribution.  Negative Tinels, negative 
 
                 Tinel press, and negative Philen's [sic] press all 
 
                 indicated no current median nerve compression at 
 
                 the wrist.  Grip strength compared between the 
 
                 right and left hands showed a possible slight 
 
                 diminution of grip in the left dominant hand in 
 
                 comparison with the right.
 
            
 
            (exhibit 3, pages 120-121)
 
            
 
                 Based upon the physical examination, Dr. Sprague 
 
            indicated that claimant has a 10 percent impairment of the 
 
            left upper extremity due to limited motion of the wrist and 
 
            slight loss of grip strength.  
 
            
 
                 Claimant was referred by his attorney to William V. 
 
            Tucker, Ed.D., vocational evaluator, for an evaluation on 
 
            February 15, 1993.  Claimant related to Mr. Tucker that he 
 
            is currently working and earning $8.50 per hour.  He 
 
            indicated that he is able to do his work with no particular 
 
            problems because it does not involve repetitive use of the 
 
            wrists.  Mr. Tucker stated that "As long as Mr. Roberts is 
 
            able to continue with the kind of work that he is doing, 
 
            vocational transfer questions appear to not be relevant."  
 
            Mr. Tucker speculated that if claimant were to leave his 
 
            present employment and be unable to perform production or 
 
            industrial work involving repetitive use of the arms and 
 
            wrists then he would have transferable skills to sales work 
 
            as a result of his past employment.  He identified jobs in 
 
            this category as paying $6.63 per hour.  If this scenario 
 
            would occur, claimant would suffer $1.62 per hour or 
 
            approximately a 20 percent loss in earnings (ex. 2).  
 
            
 
                 Claimant visited with Mr. Tucker on March 9, 1993.  At 
 
            this time, he stated his present salary is $8.85 per hour.  
 
            Again speculating that should claimant lose his current job 
 
            and forced into the competitive job market at $6.63 per 
 
            hour, he would lose $2.22 per hour or 25 percent loss of 
 
            earnings.   (ex. 2).  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is the onset date of 
 
            claimant's two injuries.  
 
            
 
                 The record clearly indicates that claimant first 
 
            experienced left wrist pain on August 16, 1985.  He was 
 
            diagnosed by Dr. Redwine and treated conservatively.  His 
 
            symptoms persisted and a diagnosis of left carpal tunnel 
 
            syndrome was made.  Dr. Lentini performed surgery on 
 
            February 27, 1986.  Clearly, the onset date of claimant's 
 
            left extremity impairment was August 16, 1985 (ex. 3, p. 
 
            29).  
 
            
 
                 As to claimant's right hand and wrist problems, the 
 
            record clearly demonstrates that these surfaced on June 20, 
 
            1990 (ex. 3, p. 80).  Claimant continued to work and was 
 
            treated conservatively until August 13, 1990, when Dr. 
 
            Pechacek took him off work in order to get him ready for 
 
            surgery on August 22, 1990.  The record clearly demonstrates 
 
            that the onset of claimant's injury occurred on June 20, 
 
            1990, when he first reported his symptoms to the company 
 
            physician and conservative treatment commenced.  
 
            
 
                 The next issue to be decided is whether claimant's 
 
            injuries caused permanent disability.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injuries 
 
            of August 16, 1985 and June 20, 1990, are causally related 
 
            to the disability on which he now bases his claim.  Bodish 
 
            v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  Lindahl 
 
            v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  Burt, 
 
            73 N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The uncontroverted, uncontradicted, unrebutted, and 
 
            unrefuted medical opinion indicates that claimant's 
 
            bilateral carpal tunnel syndrome has caused permanent 
 
            disability.  Dr. Sprague gave claimant a 10 percent left 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            upper extremity impairment rating and Dr. Kuhnlein gave 
 
            claimant a 10 percent right upper impairment rating.  These 
 
            ratings were based on residuals from carpal tunnel syndrome.
 
            
 
                 Claimant alleges that the combined disability caused by 
 
            his injuries have caused industrial disability which should 
 
            be compensated by the Second Injury Fund.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 At the time of his second injury in 1990, claimant was 
 
            46 years old.  He is a high school graduate and has worked 
 
            in the past as a baker, assistant manager of data 
 
            processing, office manager, sales representative, and marina 
 
            manager.  Claimant has worked as a line butcher for employer 
 
            since 1982.  At the time of his injury in June 1990 he was 
 
            earning $8.40 per hour.  He currently earns $8.85 per hour.  
 
            Claimant does not have a loss of earnings.  However, he does 
 
            have a minimal loss of earning capacity.  He has minimal 
 
            physical limitations and is not restricted from performing 
 
            his usual job with employer.  His complaints of pain, 
 
            numbness and weak grip strength are not supported by the 
 
            medical evidence.  Claimant has not needed medical care or 
 
            treatment since he was released to return to work in October 
 
            1990.
 
            
 
                 Based upon the foregoing factors, all of the factors 
 
            used to determine industrial disability, and employing 
 
            agency expertise, it is determined that claimant sustained a 
 
            20 percent industrial disability.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to Second Injury Fund benefits.  
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 In this instance, there is sufficient evidence to show 
 
            that claimant sustained a first permanent injury to his left 
 
            wrist/hand in 1985.  Claimant sustained a second injury to 
 
            his right wrist/hand in 1990.  The medical evidence that is 
 
            most persuasive indicates that claimant has a 10 percent 
 
            functional impairment to his left upper extremity and a 10 
 
            percent impairment to his right upper extremity.  According 
 
            to the Guides to the Evaluation of Permanent Impairment, 
 
            third ed. (revised), 10 percent of the upper extremity is an 
 
            11 percent impairment of the hand (table 2, page 16).
 
            
 
                 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 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            
 
                 Thus, the calculation of the Fund's liability in this 
 
            case is as follows:
 
            
 
                 20% x 500 weeks=100 weeks
 
            minus ---------20.9 weeks (1985 impairment to left                                                                                                                                                                                                  
 
                           wrist/hand, 11% x 190 weeks)
 
            minus ---------20.9 weeks (1990 impairment to right            
 
                           wrist/hand, 11% x 190 weeks)
 
            Total ---------58.2 weeks of liability for Second 
 
            Injury Fund
 
            
 
                 The next issue to be determined is the commencement 
 
            date of permanent partial disability benefits.
 
            
 
                 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).
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached.  Armstrong Tire & Rubber Co. 
 
            v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code section 85.34(1) (1991), the Kubli court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, 312 N.W.2d 
 
            at 65.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Ia. Ct. App. 1984).  The finding of a 
 
            termination of healing period necessarily precludes the 
 
            discussion of the running award.  Hoskins v. Quaker Oats, 
 
            Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181, 
 
            185 (App. 1985).  Since the healing period contemplates an 
 
            inability to work, a healing period cannot start until 
 
            claimant leaves work.  This is true even if claimant is 
 
            experiencing symptoms on the job but does not leave work for 
 
            a variety of reasons.  Boyd v. Western Home, file number 
 
            890207 (Iowa Industrial Commissioner App. June 26, 1991).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 The greater weight of the evidence supports the finding 
 
            that claimant was taken off work on August 13, 1990, by Dr. 
 
            Pechacek and released to return to work on October 31, 1990.  
 
            Therefore, claimant's healing period ended on October 31, 
 
            1990, and payment of permanent partial disability benefits 
 
            by employer commences on November 1, 1990.  The Second 
 
            Injury Fund liability begins at the end of the employer's 
 
            liability for weekly benefits.  Finneman v. Wilson Foods 
 
            Corp., file numbers 834479 & 913590 (App. Dec. March 17, 
 
            1993).
 
            
 
                 According to the July 1, 1989, Guide to Iowa Workers' 
 
            Compensation Claim Handling, claimant's proper rate of 
 
            compensation is $250.68 per week ($373.28 gross weekly wage, 
 
            married with five exemptions).  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant twenty point nine 
 
            (20.9) weeks of permanent partial disability benefits at the 
 
            rate of two hundred fifty and 68/100 dollars ($250.68) per 
 
            week commencing November 1, 1990.
 
            
 
                 That the Second Injury Fund shall pay claimant 
 
            fifty-eight point two (58.2) weeks of permanent partial 
 
            disability benefits at the rate of two hundred fifty and 
 
            68/100 dollars ($250.68) per week commencing at the end of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            the employer's liability for weekly benefits.
 
            
 
                 That employer/insurance carrier and the Second Injury 
 
            Fund each pay one-half of all costs of these proceedings 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant employer/insurance carrier receive 
 
            credit for benefits previously paid.  
 
            
 
                 That defendant employer and claimant shall determine 
 
            the proper amount of credit for benefits previously paid by 
 
            defendant employer.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue on benefits paid by employer 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 Interest accrues on unpaid Second Injury Fund benefits 
 
            from the date of the decision.  Second Injury Fund of Iowa 
 
            v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Paul Deck
 
            Attorney at Law
 
            635 Frances Bldg
 
            Sioux City, Iowa  51101
 
            
 
            Mr. Bryan J. Arneson
 
            Attorney at Law
 
            STE 340 Insurance Center
 
            507 7th St
 
            Sioux City, Iowa  51101
 
            
 
            Mr. James F. Christenson
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                               51402.40 53202 51802
 
                                               Filed April 2, 1993
 
                                               Jean M. Ingrassia
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THOMAS ROBERTS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 958248
 
            JOHN MORELL & CO.,  
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE INS.,     
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51402.40
 
            Found that claimant had a 1985 first injury to his left 
 
            wrist/hand (not upper extremity) and a second injury in 1990 
 
            to his right hand/wrist (not upper extremity).  
 
            
 
            53202
 
            
 
                 Second Injury Fund benefits were granted.  Claimant 
 
            proved a first loss of use of his right hand and a second 
 
            loss of use to his left hand.  The Second Injury Fund is 
 
            responsible for the excess industrial disability over the 
 
            combined schedule loss of the first and second injuries.  
 
            Their liability in this case is 58.2 weeks.  
 
            
 
            51802
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            Claimant was taken off work by his treating surgeon on 
 
            August 13, 1990, and released to return to work on October 
 
            31, 1990.  Claimant's healing period ended when he was 
 
            released to return to work.  The commencement date for 
 
            permanent partial disability benefits is November 1, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         HELEN I. CLAY,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 958460
 
         DEPARTMENT OF EDUCATION,   
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         STATE OF IOWA,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 3, 1994 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of June, 1994.
 
         
 
         
 
                                     ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Ms. Mary S. Bernabe
 
         Attorney at Law
 
         1150 Polk Blvd
 
         Des Moines, Iowa 50311
 
         
 
         Mr. Stephen Moline
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1108; 5-1803; 5-2206
 
                                            5-2503; 5-2500; 5-2701
 
                                            Filed June 23, 1994
 
                                            Bernard J. O'Malley
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HELEN I. CLAY,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 958460
 
            DEPARTMENT OF EDUCATION,   
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1108; 5-1803
 
            Found claimant's work injury caused claimant to incur a 25 
 
            percent industrial disability.
 
            
 
            5-2206
 
            Found claimant's preexisting degenerative disease was 
 
            substantially and materially heightened, lighted up and 
 
            exacerbated by her August 21, 1990 work injury.
 
            
 
            5-2503; 5-2500
 
            Claimant was awarded medical miles and medical bills to be 
 
            paid by defendants.
 
            
 
            5-2701
 
            Claimant granted alternate care.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            HELEN I. CLAY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 958460
 
            DEPARTMENT OF EDUCATION,      :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on December 13, 1993, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on August 21, 1990.  The record in the proceeding 
 
            consists of the testimony of the claimant, Margaret Hope 
 
            Edwards, Dr. Raymond Morley, and Sandra Schmitz; and, 
 
            claimant's exhibit 1 through 17 and defendants' exhibit A.
 
            
 
                                     ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether there is a causal connection as to 
 
            claimant's alleged permanent disability and her alleged 
 
            August 21, 1990 injury;
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits; and,
 
            
 
                 3.  Whether claimant is entitled to 85.27 medical 
 
            benefits, the issues being that treatment wasn't necessary 
 
            or reasonable and no authorization, and alternate care.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a high school graduate and is almost 43 
 
            years of age and furthered her education at a business 
 
            college and obtained an executive secretary diploma in 1969.  
 
            She also took some classes at DMACC and obtained a 
 
            certificate.
 
            
 
                 Claimant testified as to her work history before she 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            began working for the State of Iowa in the Iowa Department 
 
            of Education in January of 1981 or 1982.  Claimant related 
 
            she has a hearing defect and is 75 to 90 percent deaf in the 
 
            left ear and 5 to 10 percent in the right ear.
 
            
 
                 Claimant said that over the last 20 years she has had 
 
            approximately 38 foster children living with her and also 
 
            currently has the care of a senior citizen residing at her 
 
            home.  Claimant is very active in her church and received 
 
            these foster children and a senior citizen by an assignment 
 
            through her church.  Claimant is a lead minister in her 
 
            church and teaches bible class and leads the minister class 
 
            and membership class.
 
            
 
                 Claimant stated that she used to travel around the 
 
            state, sometimes three times a week, but doesn't travel now 
 
            because of her injury.
 
            
 
                 Claimant related her positions while working for 
 
            defendant employer and her various promotions and jobs 
 
            within the department.  She was making $398 per week at the 
 
            time of her alleged injury.
 
            
 
                 Claimant said that prior to her August 21, 1990 injury, 
 
            she was in good health except she had hearing difficulties 
 
            all her life and has arthritis in her hands, knees and 
 
            ankles and has high blood pressure and is borderline 
 
            diabetic.  Claimant has had no back problems.
 
            
 
                 Claimant acknowledged that in 1983 she had a back 
 
            problem resulting from her slipping and she had gone to a 
 
            chiropractor six times in an approximate three month period 
 
            and had also gone to Ronald K. Bunten, M.D..  She related 
 
            that in February 1983, the doctor indicated that if she 
 
            needed to come back to let him know.  She indicated she 
 
            never saw the doctor again for that back problem and has 
 
            seen no doctor from 1983 up to her 1990 injury.
 
            
 
                 Claimant described her slip and fall on the wet floor 
 
            on August 21, 1990.  She testified that from approximately 
 
            20 minutes to one-half hour earlier, she saw a janitor 
 
            mopping the floor.  She said when she fell her clothes were 
 
            all wet as a result of the water on the floor.
 
            
 
                 Claimant said she had excruciating pain in her low back 
 
            and tailbone area.  Claimant indicated how long she was off 
 
            work for which there was no dispute as to that period of 
 
            time.  She also indicated the medical attention she sought 
 
            including going to a back institute, having physical 
 
            therapy, etc.  Claimant described the extreme pain she was 
 
            in and she had a hard time getting out of bed and doing her 
 
            housework.  She testified how she cut back on her church 
 
            work and traveling.  Claimant was taken off work a second 
 
            time.  There is no dispute as to the periods of time 
 
            claimant was off work.  Defendants contend that it wasn't as 
 
            a result of a work injury but agreed that claimant was off 
 
            those periods of time.
 
            
 
                 Claimant testified as to the medical treatment she 
 
            continued to receive which involved several doctors, a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            neurologist and a chiropractor.
 
            
 
                 She described her visit with Ronald K. Bunten, M.D., as 
 
            lasting five minutes and with Thomas A. Carlstrom, M.D., 
 
            lasting two minutes.  She indicated he had her walk around 
 
            the room and said he could not operate.  She said he then 
 
            walked out of the room and she had to ask if he was through 
 
            seeing her.
 
            
 
                 Claimant said that Michael J. Makowsky, M.D., 
 
            discharged her in July of 1992 even though her pain never 
 
            had gone away.  She said he told her to go ahead and see her 
 
            family doctor, Sally M. Pinnick, M.D.  He said Dr. Pinnick 
 
            saw her through April 1993.  She then went to a Dr. Niehaus 
 
            (a chiropractor) because she wanted to try someone who she 
 
            thought could help her.  This chiropractor then suggested 
 
            she see a neurologist and claimant then went to Marc E. 
 
            Hines, M.D., in Ottumwa, in August of 1993.
 
            
 
                 Claimant said that Dr. Hines' treatment has helped her 
 
            and she wants to continue with him.  She indicated she had 
 
            another appointment with him on December 15, 1993.
 
            
 
                 Claimant said that defendant employer's has not paid 
 
            Dr. Pinnick's bill or any prescriptions since July 1992, nor 
 
            have they paid Dr. Hines' bill.
 
            
 
                 Claimant stated that she has been overweight her entire 
 
            life both before and after her injury.  Although she has 
 
            been told she has preexisting degenerative problems, she 
 
            said she has never had any pain because of it.  Claimant 
 
            said she has been limited in her work.  She stated how the 
 
            employer has tried to accommodate her working condition by 
 
            rearranging the file and having a secretary help her as far 
 
            as filing and reaching and carrying files or boxes of 
 
            materials.  She said she does not lift any materials that 
 
            she takes to conferences and doesn't do much filing now.  
 
            She indicated she also has a different chair.  Claimant said 
 
            she does not believe her back has improved over the last 
 
            three years and that she is 50 percent less active now than 
 
            she was before her accident.
 
            
 
                 She acknowledged that she has received a raise since 
 
            her injury and is now making $520.10 per week versus $398 
 
            before the injury.
 
            
 
                 She indicated that her personnel record qualifies her 
 
            as a supervisor but stated she is not qualified to be a 
 
            supervisor because of her back, but if she was okay she 
 
            could be one.  She indicated that she felt she couldn't be a 
 
            supervisor but one must apply and that there has not been an 
 
            opening.  She acknowledged that the doctors have suggested 
 
            she lose weight.  She acknowledged that Beverly R. 
 
            Rosenfeld, D.O., said that the weight contributes to her 
 
            ankle problems, etc.  Claimant acknowledged that in 1991, 
 
            she was involved in an automobile accident and sprained her 
 
            ankle.
 
            
 
                 Claimant presumed that Dr. Makowsky knew she was 
 
            overweight before her injury.  She emphasized that she 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            wasn't having any problems at work before her injury and 
 
            that she was overweight then.  She said she saw no doctor 
 
            between 1983 up to her injury in 1990 for her back.
 
            
 
                 Margaret Hope Edwards testified she worked for the 
 
            Department of Education and has worked as a secretary for 20 
 
            years and worked with claimant since 1989.  She said she did 
 
            not know the claimant before she began working for her.  She 
 
            emphasized she works very closely with the claimant.  She 
 
            said she began working in the claimant's department in June 
 
            of 1989 and recalled the day claimant fell.  She said 
 
            claimant was able to do more than she is able to do now.  
 
            She indicated claimant cannot get into the bottom drawer or 
 
            carry a lot of heavy boxes or supplies outside the office.  
 
            She said claimant could do everything anyone else could do 
 
            and never complained of any problems prior to her 1990 
 
            injury.
 
            
 
                 She emphasized claimant is a very thorough, precise and 
 
            dedicated worker.  She is on time and if she has a question 
 
            she goes to the claimant and claimant helps her.  She said 
 
            claimant speaks her mind and is very friendly and is well 
 
            respected in and out of the office.  She is a compassionate 
 
            and caring individual.  Claimant is the type of person you 
 
            can discuss problems with, talk to and she will listen.  
 
            Claimant will give ideas on how to do the work. She said 
 
            claimant is not a complainer and had no problems before her 
 
            injury in August 1990.
 
            
 
                 She recalled the day claimant fell and was injured.  
 
            She indicated the floor was wet and had just recently been 
 
            mopped.
 
            
 
                 Ms. Edwards said that while claimant was recuperating 
 
            at home she took work home and when claimant was done, she 
 
            would call her to pick it up.  She said that claimant now 
 
            does not appear to be the same person as before her injury.  
 
            She indicated claimant cannot do what she used to do and 
 
            described what those particular things were.  She has 
 
            observed claimant being in pain and it continues to the 
 
            present.
 
            
 
                 Ms. Edwards said claimant is motivated and did 
 
            everything.  She loves to cook.  She was active in church 
 
            affairs and has now cut back.  She believes claimant is in 
 
            pain and emphasized that claimant is a very honest person.  
 
            She stated the claimant is gradually getting worse in her 
 
            opinion and that if she was going through what the claimant 
 
            is going through she would have given up.
 
            
 
                 Raymond E. Morley, has a Ph.D in education and has 
 
            worked in the Department of Education since 1971.  He has 
 
            worked with claimant and has known claimant since 1980.  He 
 
            said claimant was his secretary from 1982 until the present 
 
            and he is one of her supervisors.  He said claimant has very 
 
            good work habits.  He said she is very competent, diligent 
 
            and gets the job done and puts in extra time.  He said she 
 
            is personally committed to her work and does an excellent 
 
            job and emphasized that at times she actually does better 
 
            work than the professional staff.  He has worked very 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            closely with the claimant daily and now works with her on a 
 
            part-time job and also works with Mary Edwards.  He said 
 
            that claimant oversees Ms. Edwards.
 
            
 
                 He said claimant appeared to have no back problems 
 
            before her 1990 injury and that she never complained of any 
 
            back problems nor had he observed any physical limitations 
 
            except for her hearing.  He was aware of claimant's 1990 
 
            work injury and was aware claimant was off work.  He 
 
            indicated claimant did work at home and that she is a person 
 
            who likes to get work done and took work home with her.  He 
 
            has observed claimant after her injury and noticed the 
 
            problems she is having and testified in detail as to this.  
 
            He said claimant isn't back to her old self since her fall 
 
            in 1990.  This witness went on to testify considerably more 
 
            as to claimant and he had nothing but praise for this 
 
            claimant and supported the fact that claimant is injured and 
 
            has been suffering from this 1990 injury.  The undersigned 
 
            sees no reason to set out in any more detail his testimony.
 
            
 
                 Sandra Schmitz testified that she works for the 
 
            Department of Education as a special education consultant 
 
            since July 1987 and has worked for the claimant.  She was 
 
            her secretary and has known claimant since 1987.  This 
 
            witness, like the previous two witnesses, had nothing but 
 
            good remarks and high praise for the claimant.  Her 
 
            testimony was basically the same as the prior two witnesses, 
 
            Dr. Morley and Ms. Edwards.  The undersigned sees no reason 
 
            to set out in detail her testimony.  Like the testimony of 
 
            Dr. Morley and Ms. Edwards, there was no cross-examination 
 
            of Ms. Schmitz's testimony either.
 
            
 
                 The undersigned can see why defendants did not further 
 
            question them as these three witnesses could not have been 
 
            more praiseworthy of this claimant who is obviously a very 
 
            dedicated state employee, an employee of which the state 
 
            should be proud and should do everything to try to keep her 
 
            employment with the state.
 
            
 
                 Marc E. Hines, M.D., testified through his deposition 
 
            (Claimant's Exhibit 9) on December 7, 1993.  He is a 
 
            neurologist and first saw claimant on August 5, 1993 for 
 
            referral from her doctor, Gary Niehaus.  He related the 
 
            history claimant gave him and also his understanding of 
 
            various medical treatments she has had.  He indicated 
 
            claimant also had a long history of degenerative disease.  
 
            He indicated she had a little back trouble pursuant to an 
 
            injury in 1983 and then the accident she had in 1990 which 
 
            seemed to have light up or worsen the degenerative problem 
 
            through the mechanism of the lumbosacral strain, muscle 
 
            spasm and joint pain.  He understood she was asymptomatic 
 
            prior to her 1990 injury and her medical records supported 
 
            this.  He indicated claimant seems very motivated and wanted 
 
            to try anything that would give her a likelihood of 
 
            improvement.
 
            
 
                 The doctor referred to his report of October 20, 1993, 
 
            in which he sets out his opinion and he opined in his 
 
            deposition that claimant's fall on August 21, 1990 has 
 
            resulted in a permanent injury to claimant.  He further 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            opined that claimant's injury is primarily an exacerbation 
 
            of degenerative disease of the back such as she has muscle 
 
            spasms and lumbosacral strain with chronic low back pain and 
 
            difficulties with some exacerbation and neck pain as well 
 
            (Cl. Ex. 9, p. 23).  He further opined that claimant had an 
 
            overall impairment of 25 percent of the body as a whole 
 
            under the AMA Guides to the Evaluation of Permanent 
 
            Impairment, revised third edition.   He also opined that 
 
            claimant would not be able to participate in repetitive 
 
            bending, repetitive stooping, squatting, crawling, climbing 
 
            or other activities that would put a constant repeat of 
 
            strain on her back.  He did not feel she could sit in the 
 
            same position without moving for more than 30 minutes 
 
            without rest or ability to get up and move around.  He 
 
            indicated she should not lift more than 40 pounds in any 
 
            position at any time and no more than 20 pounds repeatedly.  
 
            She should not lift more than one or two hours out of any 
 
            work day even with those restrictions.  He related the cause 
 
            of all these restrictions is the result of her accident in 
 
            1990. (Cl. Ex. 9, pp. 25-28)
 
            
 
                 Dr. Hines disagreed with Dr. Makowsky's opinion that 
 
            claimant's residual problems are simply related to her 
 
            degenerative disease and that the doctor feels claimant has 
 
            gotten better.  He agreed with the doctor that claimant was 
 
            injured.  Dr. Hines also disagreed with Dr. Makowsky's 
 
            opinion that claimant's overweight and preexisting 
 
            degenerative problem is causing her pain and not the fall at 
 
            work in August 1990. (Cl Ex. 9, p. 32)
 
            
 
                 The doctor continued to explain not only the 
 
            disagreement with Dr. Makowsky but elaborated on the fact 
 
            that it is undisputed that medically claimant had an 
 
            exacerbation of a preexisting degenerative condition and 
 
            that she was overweight before the injury and after the 
 
            injury.  He emphasized that there was nothing that 
 
            intervened other than her injury that caused the 
 
            exacerbation and the continuation of the same.  He 
 
            emphasized that for logical reasons as well as common sense 
 
            he sees it as not logical to ascribe the obesity and 
 
            degenerative changes as a sole source of the causes of 
 
            claimant's current problems when originally the problem was 
 
            due to the accident and exacerbation and that there is no 
 
            alternative discussion or explanation of why claimant's 
 
            problems should change since her 1990 injury.  Claimant was 
 
            not having any prior problems and that the only cause of the 
 
            lighting up of the degenerative disease is her injury.  
 
            There is no dispute that degenerative disease is not caused 
 
            by an injury as that develops over a course of one's life 
 
            but it is also common knowledge that one can have 
 
            degenerative disease and has had no effects of it until an 
 
            injury occurs.  It is obvious from Dr. Hines' testimony that 
 
            this is the situation with claimant. (Cl. Ex. 9, pp. 33-37)
 
            
 
                 Michael J. Makowsky, M.D., testified through his 
 
            deposition on December 7, 1993. (Cl. Ex. 7)
 
            
 
                 The undersigned sees no reason to go into detail on Dr. 
 
            Makowsky's deposition as it is basically summed up in his 
 
            comment in his August 30, 1993 letter (Def. Ex. A) in which 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            he indicates that it was his medical opinion that these 
 
            severe degenerative changes of claimant's back did not occur 
 
            as a result of a work-related injury.  He conceded that 
 
            claimant's fall would result in some temporary aggravation 
 
            but not a permanent aggravation.  He mentioned that claimant 
 
            has obesity as a risk factor.
 
            
 
                 The undersigned finds that Dr. Hines is the more 
 
            credible doctor and based on agency experience and common 
 
            sense, the one facing the reality of the facts of this case.  
 
            It appears Dr. Makowsky adheres to the theory that if one 
 
            has degenerative disc disease, even if it wasn't affecting 
 
            the person, the mere fact they have it, even if it is 
 
            exacerbated, cannot result in a permanent work injury 
 
            impairment or disability because of the fact that it 
 
            preexisted even though it was latent.  It appears he also 
 
            adheres to the theory that one's overweight condition 
 
            materially or solely contributed to degenerative disease or 
 
            one's impairment or disability resulting therefrom.  Even 
 
            though the person was as heavy before the injury as after 
 
            the injury and she was having undisputed no prior problems, 
 
            the undersigned believes the doctor's conclusions are 
 
            contrary to what this agency's experience is.  This agency 
 
            has seen time and time again that you can have an individual 
 
            with degenerative disc disease who has had no problems and 
 
            an injury materially and substantially exacerbated and 
 
            heightens and light up said disease and that in fact this 
 
            can be caused by a work injury and result in a permanent 
 
            impairment.  Claimant's exhibit 2 is Dr. Makowsky's medical 
 
            records on the claimant.
 
            
 
                 Dr. Makowsky referred claimant to Dr. Carlstrom who saw 
 
            claimant on September 27, 1990, at which time he thought 
 
            claimant would have a long-term problem and suspected there 
 
            would be some permanency.  He suggested claimant should 
 
            continue her therapy which she did for several weeks. (Cl. 
 
            Ex. 3, pp. 1-7)
 
            
 
                 Claimant's exhibit 6 contains as part of said exhibit 
 
            eight pages in which there is reference time and time again 
 
            that there is a work-related injury and these documents 
 
            cover several months into 1992.  These appear to be all 
 
            signed by Dr. Makowsky.  These documents were covering a 
 
            period of a year and one-half to two years after claimant's 
 
            injury.  The undersigned is curious as to why in 1993 in Dr. 
 
            Makowsky's letter and deposition he now takes the position 
 
            that claimant's problems are not work related.  It seems 
 
            totally inconsistent to the undersigned as well as 
 
            illogical.
 
            
 
                 Claimant's exhibit 8, pages 1 through 3, is Dr. Hines' 
 
            report.  This supports his testimony and deposition plus it 
 
            shows that claimant's injury was in 1990 even though in the 
 
            doctor's deposition, at least as transcribed, he was 
 
            referring to an August 1992 injury when obviously he was 
 
            meaning August 1990.  Pages 8 and 9 of claimant's exhibit 8 
 
            is Dr. Hines' letter in which he sets out claimant's 25 
 
            percent permanent impairment and also her restrictions.
 
            
 
                 Claimant's exhibit 16 is entitled "Resume" and contains 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            a lot of claimant's personnel records, etc.  Without going 
 
            into detail, it is obvious claimant is highly thought of by 
 
            people with whom she has been employed and is looked upon as 
 
            an excellent employee wherever she has been.  Claimant's 
 
            exhibit 17 is claimant's employment history and education 
 
            summary, etc.
 
            
 
                 There is no dispute that claimant was injured in the 
 
            course of her employment on August 21, 1990.  The 
 
            undersigned finds that claimant was off work August 19, 1991 
 
            through August 26, 1991, and January 8, 1992 through January 
 
            13, 1992, which totals two weeks.
 
            
 
                 The major dispute in this matter is whether claimant's 
 
            permanent disability and impairment is causally connected to 
 
            her August 21, 1990 injury.  The doctors disagree as to the 
 
            permanency issue.  As indicated earlier, the undersigned 
 
            believes Dr. Makowsky's conclusions and opinions are 
 
            unacceptable and are not in the mainstream of medical 
 
            thought in this agency's experience and that Dr. Hines' 
 
            medical opinion is the most credible and acceptable.  The 
 
            undersigned therefore finds that claimant did incur a 
 
            permanent impairment which Dr. Hines opined was a 25 percent 
 
            body as a whole and that this impairment was the result of 
 
            claimant's August 21, 1990 work injury.
 
            
 
                 The undersigned finds that claimant has a considerable 
 
            amount of restrictions.  Claimant had glowing reports on her 
 
            testimony as to her work ethics, motivation, willingness to 
 
            work and ability to work.  Prior to this injury, claimant 
 
            was thought of as an ideal employee with no evidence of any 
 
            injuries, back problems, impairments except for her hearing 
 
            deficiency.  The evidence is undisputed that since 
 
            claimant's injury, she has noticeably needed to cut back on 
 
            her activities at work and otherwise and has been unable to 
 
            do the work to the extent she originally did it.  She has 
 
            trouble bending, sitting and doing her work.  The 
 
            undersigned believes claimant is very credible as well as 
 
            the witnesses who testified for her.
 
            
 
                 As indicated earlier, this claimant appeared to have 
 
            been the ideal state employee prior to her August 21, 1990 
 
            injury, as well as an outstanding citizen both civilly and 
 
            religiously and has been touted as being a very honest, 
 
            helpful, compassionate individual.
 
            
 
                 The records clearly show that claimant is overweight, 
 
            both before and after the injury, but there is no evidence 
 
            that this weight situation changed.  There is also evidence 
 
            that claimant had a preexisting degenerative condition 
 
            before and after her injury and that it was inactive prior 
 
            to her injury and became materially and substantially 
 
            exacerbated, lighted up, heightened and aggravated as a 
 
            result of her August 21, 1990 injury and the undersigned so 
 
            finds.
 
            
 
                 The claimant has not lost any income comparing what she 
 
            is currently making and what she was making at the time of 
 
            her injury, but claimant is fortunate to be such a welcomed 
 
            state employee that she continues to maintain her job 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            position and has many others helping her to get along due to 
 
            her deficiencies caused by her August 21, 1990 injury.  If 
 
            it weren't for the employee record she has made and those 
 
            who know her on the job, there is not the likelihood 
 
            claimant would be hired or her condition would be put up 
 
            with by any new employer knowing claimant's limitations and 
 
            restrictions resulting from her August 21, 1990 injury.  The 
 
            claimant is not the same person as she was before and 
 
            therefore has a loss of earning capacity.
 
            
 
                 Taking into consideration claimant's medical and work 
 
            history prior to her injury and after her injury; her 
 
            education; age; motivation; location and severity of her 
 
            injury; the fact that the defendant employer is 
 
            accommodating her; and all of those other items that are 
 
            considered in determining one's industrial disability, the 
 
            undersigned finds that claimant has a 25 percent industrial 
 
            disability which was caused by her August 21, 1990 work 
 
            injury.
 
            
 
                 As to the 85.27 medical issue, the undersigned finds 
 
            that claimant's medical treatment was causally connected to 
 
            her work injury and that it was reasonable and that it did 
 
            help her.  The undersigned finds that defendants are 
 
            responsible for all of the medical bills that are in dispute 
 
            in this case.  Defendants shall pay said medical bills.  
 
            Claimant can continue to see Dr. Hines at defendants' 
 
            expense as he seems to have a better grasp of claimant's 
 
            medical condition and most likely can give her unbiased care 
 
            and judgment in her medical treatment.
 
            
 
                 Claimant indicated there were 1,731 medical miles 
 
            payable by defendants if causal connection is found and that 
 
            the parties indicate that only 610 of this amount is in 
 
            dispute.  The parties further agree that if industrial 
 
            disability is found, all the mileage is to be paid.  The 
 
            undersigned therefore finds that defendants are responsible 
 
            for payment of all of claimant's medical mileage which 
 
            totals 1,731 of which apparently all but 610 has currently 
 
            been paid.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 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).
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when some 
 
            ascertainable portion of the ultimate industrial disability 
 
            existed independently before an employment-related 
 
            aggravation of disability occurred.  Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
            Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
            is maintained and earnings are not reduced on account of a 
 
            preexisting condition, that condition may not have produced 
 
            any apportionable loss of earning capacity.  Bearce, 465 
 
            N.W.2d at 531.  Likewise, to be apportionable, the 
 
            preexisting disability must not be the result of another 
 
            injury with the same employer for which compensation was not 
 
            paid.  Tussing v. George A. Hormel & Co., 461 N.W.2d 450 
 
            (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a 25 percent industrial disability as 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            a result of her August 21, 1990 work injury.
 
            
 
                 Claimant's preexisting degenerative disease was 
 
            substantially and materially aggravated, exacerbated, 
 
            heightened and lighted up as a result of her August 21, 1990 
 
            work injury and that any preexisting condition claimant 
 
            previously had was in a latent or inactive condition until 
 
            her August 21, 1990 work injury.
 
            
 
                 Claimant is a very credible witness as are her 
 
            witnesses.
 
            
 
                 Defendants are responsible for claimant's medical bills 
 
            and medical mileage.
 
            
 
                 Claimant is entitled to continue to see Dr. Hines at 
 
            defendants' expense when medically necessary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred fifty-six and 03/100 
 
            dollars ($256.03) for the period of August 19, 1991 through 
 
            August 26, 1991 and January 8, 1992 through January 13, 
 
            1992, encompassing two (2) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of two hundred fifty-six and 03/100 
 
            dollars ($256.03) beginning August 27, 1991 and then 
 
            interrupted for approximately eight (8) days and then again 
 
            continuing from January 14, 1992 until paid.
 
            
 
                 That defendants shall pay or reimburse claimant for the 
 
            medical expenses that are at issue herein and pay claimant 
 
            for her medical mileage which totals one thousand seven 
 
            hundred thirty-one (1,731) miles to which the undersigned 
 
            understands six hundred ten (610) miles is currently 
 
            outstanding at the mileage rate of 21 cents per mile.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  It appears the defendants 
 
            have paid eight point two eight six (8.286) weeks of 
 
            benefits at two hundred fifty-six and 03/100 dollars 
 
            ($256.03) for healing period as set out in the hearing 
 
            report.
 
            
 
                 That defendants shall pay claimant's medical bills 
 
            which per hearing report indicates the total requested 
 
            medical benefits are two thousand eighty-six and 94/100 
 
            dollars ($2,086.94), as set out therein and attached to the 
 
            hearing report.
 
            
 
                 Claimant is entitled to the alternate care as set out 
 
            herein.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Ms Marry S Bernabe
 
            Attorney at Law
 
            1150 Polk Blvd
 
            Des Moines IA 50311
 
            
 
            Mr Stephen Moline
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1108; 5-1803; 5-2206
 
                                              5-2503; 5-2500; 5-2701
 
                                              Filed February 3, 1994
 
                                              Bernard J. O'Malley
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          
 
            HELEN I. CLAY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 958460
 
            DEPARTMENT OF EDUCATION,      :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108; 5-1803
 
            Found claimant's work injury caused claimant to incur a 25% 
 
            industrial disability.
 
            
 
            5-2206
 
            Found claimant's preexisting degenerative disease was 
 
            substantially and materially heightened, lighted up and 
 
            exacerbated by her August 21, 1990 work injury.
 
            
 
            5-2503; 5-2500
 
            Claimant was awarded medical miles and medical bills to be 
 
            paid by defendants.
 
            
 
            5-2701
 
            Claimant granted alternate care.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                             2501; 2700; 2906
 
                                             Filed August 5, 1993
 
                                             MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         HELEN I. CLAY, 
 
                   
 
              Claimant, 
 
                                               File No. 958460
 
         vs.       
 
                                            D E C I S I O N   O N
 
         STATE OF IOWA, DEPT. OF  
 
         EDUCATION,                         A P P L I C A T I O N
 
                   
 
              Employer,                   F O R   A L T E R N A T E
 
                   
 
         and                               M E D I C A L   C A R E
 
                   
 
         STATE OF IOWA, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         Claimant filed a petition for alternate medical care on July 9, 
 
         1993.  In her petition, claimant requested continued medical care 
 
         from Dr. Michael McKowsky or Dr. Sally Pinnick.  
 
         
 
         On July 15, 1993, the hearing administrator filed a notice of 
 
         telephone hearing.  The matter was set for a telephone hearing on 
 
         July 21, 1993 at 10:30 a.m.  
 
         
 
         On July 20, 1993, the hearing administrator received two separate 
 
         telephone calls from the respective parties.  Each side desired a 
 
         continuance of the telephone hearing.  Because the undersigned 
 
         deputy was unavailable, the hearing administrator referred the 
 
         matter to the industrial commissioner.  He, in turn, ruled on the 
 
         verbal requests for a continuance.  The industrial commissioner 
 
         continued the matter.  Then on July 21, 1993, the undersigned 
 
         deputy filed a ruling on the motion for continuance.  The ruling 
 
         reiterated the industrial commissioner's earlier determination.  
 
         The matter was then rescheduled for July 27, 1993 at 10:30 a.m.
 
         The telephone hearing took place on the rescheduled date.  During 
 
         the hearing, claimant amended her request for alternate medical 
 
         care to include not only care by Dr. Makowsky and Dr. Pinnick,  
 
         but also care by Gary Neehaus, D.C., and by Marc Hines, M.D., a 
 
         neurologist.
 
         
 
         Defendant denied continued care through Dr. Makowsky as he had 
 
         released claimant from treatment as of July 8, 1992.  Defendant 
 
         argued that any care subsequent to July 8, 1992 was care which 
 
         was not causally connected to the work injury.  
 
         
 
         
 
         
 
         HELD:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Defendant was ordered to provide claimant with a follow-up 
 
         appointment with Dr. Makowsky.  Defendant was also ordered to pay 
 
         the reasonable and necessary medical expenses incurred as a 
 
         result of Dr. Makowsky's treatment, so long as the treatment was 
 
         causally connected to the work injury.  Defendant was not 
 
         required to provide claimant with treatment from Dr. Pinnick, the 
 
         claimant's family physician, Dr. Neehaus, a chiropractor, or with 
 
         Dr. Hines, a neurologist in Ottumwa.
 
         
 
 
            
 
       
 
                  
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DALE AUSTIN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 958511
 
            VAN DEN BERG, formally        :
 
            SHEDD'S FOOD PRODUCTS,        :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on July 2, 1993, at 
 
            Council Bluffs, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as result of an injury occurring on 
 
            September 23, 1988.  The record of proceeding consists of 
 
            the testimony of the claimant, claimant's wife and James 
 
            Rogers and joint exhibits 1-23 and claimant's exhibit 24.
 
            
 
                                      ISSUE
 
            
 
                 The only issue for resolution is the extent of 
 
            claimant's industrial disability, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony, 
 
            considered all the evidence finds that:
 
            
 
                 Claimant is a 49-year-old, whose formal education 
 
            extended through the eighth grade and he has obtained his 
 
            GED.  Claimant started his freshman year of high school but 
 
            then dropped out in 1959 as he had a strong desire to be a 
 
            truck driver.  Claimant has been a truck driver all his 
 
            working life.  He related his work history which involved 
 
            driving a truck and delivering for various companies prior 
 
            to beginning work for Shedd's Food Products in October 1972.  
 
            Shedd's Food Products then changed its name approximately 
 
            four years ago to the Van den Berg name.  Claimant indicated 
 
            his job has remained the same during his employment with 
 
            defendant employer and the company has remained basically 
 
            the same.
 
            
 
                 Claimant described his employer as being in the 
 
            business of manufacturing margarine of various brands and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            delivering it to various places.  It has centers around the 
 
            country.  Claimant began in Omaha and when that Omaha plant 
 
            closed he was unable to transfer but was rehired at the 
 
            Kansas plant.  It appeared that he more or less started over 
 
            as to any seniority at the Kansas plant because it wasn't 
 
            considered a transfer.  He was getting better benefits at 
 
            the Omaha plant than after his rehiring by the Kansas plant.  
 
            Claimant is paid pursuant to a union contract based upon the 
 
            mileage and a drop off fee.
 
            
 
                 Claimant is subject to a seniority system and he is 
 
            currently number three in seniority.  He described how the 
 
            seniority system works which allows one to pick the load and 
 
            this affects what he can earn.  He described the type of 
 
            load that is more profitable is the longer load and also the 
 
            delivery time and locations so that one can be back in line 
 
            for another load at the best possible time in order to 
 
            exercise your seniority.  In 1988, claimant was number four 
 
            in seniority.
 
            
 
                 Claimant described what his job involves besides 
 
            driving a truck.  He indicates that he must unload the truck 
 
            or hire someone to unload it and must make sure it is 
 
            unloaded on the dock as desired by the customer.  He 
 
            indicated that when one delivers to their own plant then a 
 
            driver need not unload it as it is unloaded for him.  If 
 
            claimant is to do the unloading he is entitled under the 
 
            union contract to a $40.00 drop-off fee and the driver keeps 
 
            that $40.00.  This $40.00 is part of his earnings.  If the 
 
            claimant must hire someone to unload it he must pay that 
 
            person, who is referred to as a lumper, out of his own 
 
            pocket.
 
            
 
                 Prior to his injury on September 23, 1988, claimant 
 
            would bid for the longest load he could take as these were 
 
            the most profitable.  He then could drive 500 miles and then 
 
            have someone unload the truck while he slept and then be 
 
            ready to proceed with the next load for long trip.  
 
            Claimant's exhibit 24 shows the unloading fees comparison.  
 
            Claimant indicated that right before his injury he paid 
 
            $3,000 to $3,500 a year in fees to lumpers and the first 
 
            eight months of 1990 he paid $2,408.
 
            
 
                 Prior to his 1988 injury, claimant indicated he had no 
 
            health problems or broken bones.  He indicated he was in a 
 
            car accident in 1969, and had had gall bladder surgery and 
 
            carpal tunnel release.  None of these are affecting or 
 
            pertinent to this case herein.  Claimant had no work 
 
            limitations prior to his injury and could recall no time off 
 
            for any injury in his 21 years working for the defendant 
 
            employer.  Claimant was asked considerable questions by the 
 
            defendant as to his weight which is 265 pounds now and at 
 
            the time of the accident was 280 pounds.  It has been as 
 
            high as 300 and possibly 310, even though claimant could not 
 
            recall it being that high.  It has been down as low as 240.  
 
            The undersigned sees no importance as to this weight 
 
            situation as relates to this case.
 
            
 
                 Claimant described how his accident happened on 
 
            September 23, 1988.  Basically, he was climbing the truck to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            open the front air vents as he had washed the trailer and 
 
            wanted air to run through it.  In stepping down after 
 
            opening a front vent, the step on the trailer broke and 
 
            claimant grabbed a handle on the trailer and swung around 
 
            and was temporary suspended and this resulted in his 
 
            injuries.  Joint exhibit 16 and 17 are pictures reflecting 
 
            the handles and the broken step that claimant referred to.  
 
            Claimant then described the events that took place 
 
            thereafter which basically was driving back and returning 
 
            the truck, going to the hospital and seeking medical care.  
 
            He indicated that he wasn't even able to go up the stairs to 
 
            the defendant's office.  Claimant described the nature of 
 
            his care and the medical problems he was having as a result 
 
            of his injury.  The undersigned sees no necessity in light 
 
            of the stipulation in this case and the sole issue of the 
 
            extent of disability to go into any further detail as to 
 
            these items concerning claimant's testimony.
 
            
 
                 Claimant indicated that prior to his September 1988 
 
            injury he had no problem lifting 100 pound.  Now he 
 
            indicates if he starts to lift it hurts and he hires lumpers 
 
            much more.  Claimant's exhibit 24 reflects the expenses for 
 
            lumpers that he has had to pay since his injury.  As 
 
            indicated thereon the expense has in many instances doubled 
 
            or more than doubled.  Prior to his injury it was ranging 
 
            from $3000 to $3543 and since his injury and his return to 
 
            work for the full year it has averaged $5140 to $8180.  
 
            Claimant indicated that he has had to pass good loads to the 
 
            person lower than him in seniority because of his medical 
 
            condition.  He emphasized again that the seniority and the 
 
            ability to pick loads affects his income.  Claimant desires 
 
            to stay with his job, but he indicated that the lumpers are 
 
            now getting much more expensive ranging from $80 to $100.
 
            
 
                 Claimant was asked on cross-examination concerning his 
 
            high blood pressure and breathing problems he has had but 
 
            claimant acknowledged these do go along with his weight 
 
            situation that has varied.  He indicated he has always been 
 
            a big person.  Claimant indicates that these problems had 
 
            not affected him prior to his injury and are not now 
 
            affecting his ability to perform his job.  He says these 
 
            situations also do not affect his ability to unload.  He 
 
            emphasized that his breathing problems basically have not 
 
            kept him from work.  He said the last time he had pneumonia 
 
            which was related to some of his problems was in December 
 
            1991, in which case he was in the hospital one and a half 
 
            weeks.
 
            
 
                 Lois Austin, claimant's wife, testified as to 
 
            claimant's physical condition after the accident.  She 
 
            indicated that he is sore after driving and she applies hot 
 
            packs, infra red massage and he uses a hot tub.  She 
 
            emphasized he now needs much more attention every week.  She 
 
            indicated that she didn't have to do this prior to his 
 
            September 1988 injury.  She indicated claimant now suffers 
 
            when he lifts and he does not have the lifting strength he 
 
            used to have and that his shoulder is the worst part.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 James Rogers testified that he is a self-employed 
 
            rehabilitation consultant.  He has been in his business 
 
            since 1986.  For 17 years prior to that he worked for the 
 
            state of Colorado.  He indicates he represents injured 
 
            workers and is hired by attorneys and insurance companies.  
 
            His goal is to get people back to work, provide vocational 
 
            rehabilitation tests and talk to employers.  Mr. Rogers 
 
            indicated he received this assignment prior to January 6, 
 
            1992 to evaluate the claimant and make an earning capacity 
 
            assessment.  He interviewed claimant.  He reviewed 
 
            claimant's medical and educational history and opined that 
 
            claimant suffered a twenty to thirty percent loss of earning 
 
            capacity.  The undersigned believes that this witness's use 
 
            of the words " earning capacity" is more on the basis of 
 
            loss of earnings as it is within the sole authority of the 
 
            deputy to determine a loss of earning capacity which is the 
 
            extent of claimant's industrial disability.  He went over 
 
            various items to show how he determined this, which included 
 
            looking at the increased loading fees, the lifting 
 
            restrictions of 20-25 pounds, etc.  He emphasized that he 
 
            was not determining claimant's industrial disability. Mr. 
 
            Rogers also testified as to what it might be if claimant 
 
            lost his job, etc.  Of course, this is speculating and this 
 
            testimony is of no importance.  The undersigned cannot and 
 
            will not speculate.  We take the facts as they currently 
 
            exists and do not anticipate claimant losing his job.  He 
 
            did indicate that claimant would have a problem obtaining 
 
            another truck driving job due to his condition.  He 
 
            indicated that trucking positions in the country are good 
 
            and that union positions are fewer and fewer.  This witness 
 
            does not tie in the current law concerning American with 
 
            Disabilities Act as it relates to obtaining a job or ability 
 
            to be hired.  The fact is, claimant is driving a truck now 
 
            and doing his job and desires to stay with it.
 
            
 
                 Mr. Rogers acknowledged that it was only today that he 
 
            was aware of any health problems claimant has had, mainly 
 
            the high blood pressure and breathing and pneumonia.  He 
 
            emphasized that had he known that when he did his 
 
            evaluation, that would not have affected his opinion or 
 
            testimony.
 
            
 
                 Joint exhibit 2 is Mr. Roger's report.  The figures 
 
            therein have been corrected through his testimony and is 
 
            represented by claimant's exhibit 24 concerning certain 
 
            income and expenses where applicable.
 
            
 
                 A January 20, 1992 report of Robert P. Bruce, M.D., 
 
            orthopedic surgeon, reflects an opinion that claimant had a 
 
            fifteen percent impairment to the body as a whole as a 
 
            result of claimant's chronic impingement syndrome and 
 
            possible partial rotator cuff tear.  This evaluation was 
 
            done upon request of the insurance carrier for a second 
 
            opinion.  The doctor opined causal connection of this 
 
            condition to claimant's September 1988 injury.
 
            
 
                 Roger W. Hood, M.D., an orthopedic surgeon, opined on 
 
            November 20, 1992 in a report, that claimant had a thirteen 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            percent whole body permanent partial impairment and he 
 
            placed various impairment percentages based on claimant's 
 
            chronic rotator cuff tendinitis, his low back complaints and 
 
            the persistent click in his wrist even after his carpal 
 
            tunnel surgery.
 
            
 
                 Joint exhibit 4 is a November 15, 1991 report by David 
 
            G. Smithson, M.D., associate medical director of the 
 
            Mid-America Rehabilitation Hospital.  He opines that 
 
            claimant has a fifteen percent impairment of the whole 
 
            person based on his lumbar myofascial pain syndrome, his 
 
            degenerative changes and claimant's chronic pain problems 
 
            associated with these problems.  Dr. Smithson emphasized 
 
            that this fifteen percent body as a whole impairment does 
 
            not include the impairment due to claimant's right shoulder 
 
            which was previously rated by his orthopedist nor does it 
 
            include the impairment due to his carpal tunnel release.
 
            
 
                 Joint exhibit 6 and 7 are reports from Peter C. Boylan, 
 
            M.D., issued in 1989.  He makes certain permanent impairment 
 
            opinions in these reports.  There are no more recent 
 
            impairment reports from this doctor and it would appear to 
 
            the undersigned that the other more recent reports referred 
 
            to give a more up-to-date status concerning claimant's 
 
            condition and the impairments to the body as a whole.
 
            
 
                 Joint exhibits 20 and 22 are letters from Dr. Hood, an 
 
            orthopedic surgeon.  He refers to claimant's right hand 
 
            pain.  He concludes on his May 11, 1993 letter, that this in 
 
            his opinion, is a new injury.  The undersigned is not 
 
            considering any new complaint in this decision and does not 
 
            consider any new problem if any with claimant's right wrist 
 
            as reflected by Dr. Hood and is not considering in any way 
 
            the right wrist in this decision.
 
            
 
                 The only issue in this case is the extent of claimant's 
 
            industrial disability.  There are various medical opinions 
 
            as to the extent of claimant's permanent impairment to his 
 
            body as a whole.  It appears claimant currently has a weight 
 
            restriction.  It would seem from the evidence to still be a 
 
            50 pound weight lifting restriction, and a recommendation of 
 
            no repetitive lifting of greater than 25 pounds and 
 
            avoidance of working with his right arm overhead.  These 
 
            restrictions referred to above were in a 1989 report of Dr. 
 
            Boylan.  The undersigned believes in looking at all the 
 
            medical evidence that claimant does have or should honor 
 
            some weight limitations.  It is obvious due to the fact of 
 
            his substantially increased unloading (lumper's) fees.
 
            
 
                 The undersigned finds taking into consideration 
 
            claimant's age, his work history and medical history prior 
 
            to his September 23, 1988 and after that injury, his present 
 
            condition, his healing period, his education, wages prior to 
 
            the injury and after the injury, taking into consideration 
 
            his increased expenses because of that injury, the location 
 
            and severity of his injury, restrictions, permanent 
 
            impairment, permanent functional impairment and the fact 
 
            that the employer is accommodating him and continuing him in 
 
            his employment, the undersigned finds that claimant has 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            incurred a 25 percent industrial disability.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Is further concluded that claimant incurred a 25 
 
            percent industrial disability which arose out of and in the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            course of employment on September 23, 1988 and which work 
 
            injury caused claimant to incur healing period and the 
 
            permanent partial disability which disability payments shall 
 
            begin July 8, 1989 at the rate of $367.90. 
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial disability 
 
            benefits at the rate of three hundred sixty-seven and 90/100 
 
            dollars ($367.90) beginning July 8, 1989.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have previously 
 
            paid ninety-one (91) weeks of benefits, but forty-one (41) 
 
            weeks were healing period, therefore there is a credit 
 
            against the permanent partial disability of fifty (50) 
 
            weeks.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports pursuant to 
 
            rule 343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Dennis M Gray
 
            Attorney at Law
 
            233 Pearl Street
 
            PO Box 1078
 
            Council Bluffs Iowa 51502
 
            
 
            Mr James E Thorn
 
            Attorney at Law
 
            310 W Kanesville Boulevard
 
            PO Box 398
 
            Council Bluffs Iowa 51502-0398
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed July 30, 1993
 
                                                  BERNARD J. O'MALLEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DALE AUSTIN,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 958511
 
            VAN DEN BERG, formally        :
 
            SHEDD'S FOOD PRODUCTS,        :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant awarded 25 percent permanent partial disability 
 
            benefits which resulted in 75 more weeks than had already 
 
            been paid.