BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DARWIN HANSEN, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 958751
 
            GREG L. SMITH, 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            GRINNELL MUTUAL REINSURANCE   
 
            COMPANY   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                 INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Darwin 
 
            Hansen, claimant, against Greg L. Smith, employer, and 
 
            Grinnell Mutual Reinsurance Company, insurance carrier, 
 
            defendants, for benefits as the result of an injury which 
 
            occurred on August 22, 1990.  A hearing was held in Sioux 
 
            City, Iowa, on February 15, 1994, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Thomas R. Mohrhauser.  Defendants were 
 
            represented by Thomas M. Plaza.  The record consists of the 
 
            testimony of Darwin Hansen, claimant, and defendants' 
 
            exhibits 1 through 12.  Claimant's counsel stated on the 
 
            record that the information that he wished to be on record 
 
            was included within the defendants' exhibits 1 through 12 
 
            (Transcript page 6).  The deputy ordered a transcript of the 
 
            hearing.
 
            
 
                                PRELIMINARY MATTER
 
            
 
                 The parties stipulated that to the following matters.
 
            
 
                 That claimant sustained an injury to his right eye on 
 
            August 22, 1990, which arose out of and in the course of his 
 
            employment with employer (Tran. p. 3).
 
            
 
                 That the injury was the cause of temporary disability 
 
            and that claimant was entitled to and was paid 18.429 weeks 
 
            of temporary disability benefits for the period from August 
 
            22, 1990 the date of the injury, through December 28, 1990, 
 
            when the treating ophthalmologist released claimant to 
 
            return to work (Tran. p. 3; Ex. 9, p. 15).  
 
            
 
                 That the injury was the cause of a 100 percent 
 
            permanent impairment of the right eye and that claimant was 
 
            entitled to and was paid the maximum payment of 140 weeks of 
 
            permanent partial disability benefits by defendants prior to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            hearing pursuant to Iowa Code section 85.34(2)(p) (Tran. p. 
 
            3).
 
            
 
                 That medical benefits are no longer in dispute (Tran. 
 
            p. 4).
 
            
 
                 That the proper rate of compensation in the event of an 
 
            award is $222.04 (Tran. p. 4).
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for determination is whether claimant is 
 
            entitled to benefits pursuant to Iowa Code section 
 
            85.34(2)(t) for disfigurement (Tran. p. 5, 7 & 8).
 
            
 
                                 FINDINGS OF FACT
 
            
 
               CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY 
 
                                FOR DISFIGUREMENT            
 
                 
 
                 It is determined, as a matter of fact, that claimant 
 
            has sustained some permanent disfigurement of the face.  The 
 
            area around claimant's right eye looked different from the 
 
            area around his left eye.  It looked as if it had been 
 
            injured somehow but it was not unsightly or grotesque.  
 
            Claimant's positive attitude and optimistic personality were 
 
            more noticeable than the area around his right eye.
 
            
 
                 It is further determined that the permanent 
 
            disfigurement has not impaired claimant's future usefulness 
 
            as an employee in the occupation that he was performing at 
 
            the time of receiving this injury.
 
            
 
                 It is further determined that the permanent 
 
            disfigurement did not impair the earnings of the employee in 
 
            the occupation that he was performing at the time of 
 
            receiving this injury, based upon the evidence submitted by 
 
            claimant and defendants at the time of this hearing.  
 
            
 
                 The standard for the recovery of benefits set forth in 
 
            the code section under consideration is in the conjunctive.  
 
            The permanent disfigurement of the face or head must impair 
 
            both (1) the future usefulness and (2) earnings of the 
 
            employee in the occupation that he was performing at the 
 
            time of receiving the injury.  
 
            
 
                 Iowa Code section 85.34(2)(t) provides as follows.
 
            
 
                    For permanent disfigurement of the face or head 
 
                 which shall impair the future usefulness and 
 
                 earnings of the employee in the employee's 
 
                 occupation at the time of receiving the injury, 
 
                 weekly compensation, for such period as may be 
 
                 determined by the industrial commissioner 
 
                 according to the severity of the disfigurement, 
 
                 but not to exceed on hundred fifty weeks.
 
            
 
                 A recent case determined that the words "employee's 
 
            occupation" refers to the job or industry in which the 
 
            claimant was working at the time of the injury rather than 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the specific employer-employee relationship at that time.  
 
            Byrnes v. Donaldson's Inc., 451 N.W.2d 810, 811 (Iowa 
 
            1990).
 
            
 
                 The parties agreed that claimant was a farmer at the 
 
            time of the injury.  More specifically, he was a 
 
            self-employed farmer.  At the same time, claimant also 
 
            accepted jobs as a farm laborer for other farmers.  
 
            Therefore, with respect to other employers he was considered 
 
            a farm laborer (Tran. p. 14).  
 
            
 
                 In his deposition claimant related,
 
            
 
                    Q.  So as I understand what you are telling me, 
 
                 then, your occupation as of the time of the injury 
 
                 really was dairy farmer.
 
            
 
                    A.  Was just a farm laborer is what it was.  I 
 
                 was a farmer.  I farmed all my life, and I was 
 
                 going to help him [Smith] work on the farm. (Defs' 
 
                 Ex. 9, p. 11).
 
            
 
                    ...
 
            
 
                    Q.  And how many years had your occupation been 
 
                 a farm laborer prior to the incident with Mr. 
 
                 Smith?
 
            
 
                    A.  Since I was born. (Defs' Ex. 9, p. 12).
 
            
 
                 Claimant described what happened at the time of the 
 
            injury as follows, "It was my first day on the job.  It was 
 
            about 3:30 in the afternoon.  We were working on a silage 
 
            chopper, trying to remove a bearing, and we couldn't get it 
 
            loose, so we got a big hammer and tried to loosen it up; and 
 
            a piece of steel flew off and went through my eye." (Ex. 9, 
 
            pp. 6 & 7; Tran. pp. 13 & 14).
 
            
 
                 Claimant was taken to the emergency room where the 
 
            physician was able to save his eye (Tran p. 14).  But it was 
 
            nevertheless severely damaged.  
 
            
 
                 At the emergency room Larry M. Zweben, M.D.,  described 
 
            this injury as follows, "... penetrating injury to right eye 
 
            with corneal laceration, laceration of the iris, laceration 
 
            of the lens, possible scleral laceration, and retained 
 
            metallic intravitreal foreign body." (Ex. 1, p. 1).  
 
            
 
                 Dr. Zweben recorded that he performed a "Microsurgical 
 
            repair of full-thickness corneal laceration, sclerotomy with 
 
            magnetic extraction of intraocular metallic foreign body, 
 
            microsurgical exploration and repair of scleral laceration, 
 
            intravitreal antibiotic administration and prophylaxtic 
 
            retinal cryopexy." (Ex. 1, p. 1).  
 
            
 
                 The doctor described the retained metallic foreign body 
 
            as enormous in size (Ex. 1, p. 2) which was removed only 
 
            with great difficulty (Ex. 1, pp. 2 & 3).  It was also 
 
            necessary to excise a traumatic cataract at this time (Ex. 
 
            1, pp. 1-3).  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 A subsequent operation performed by Ira Priluck, M.D., 
 
            in Omaha, was described as a "Trans pars plana vitrectomy 
 
            using ocutome instrumentation with extensive membrane 
 
            stripping, cryoretinopexy, right eye." (Ex. 2, p. 1).  
 
            
 
                 In a letter Dr. Zweben described the injury in less 
 
            medical terminology by stating that claimant received 
 
            
 
                    ... a devastating injury to his right eye.  The 
 
                 patient had a large intraocular foreign body which 
 
                 was retrieved from the vitreous of his right eye.  
 
                 The metal had perforated the eye, lacerating the 
 
                 cornea, the sclera, the iris and the lens.  There 
 
                 is a possibility of retinal laceration as well 
 
                 (Ex. 3).  
 
            
 
                 He described the second operation performed by Dr. 
 
                 Priluck as involving the removal of blood and 
 
                 vitreous as well as the lens.
 
            
 
                 At the hearing claimant contended that he has double 
 
            vision all of the time.  The contact lenses do not eliminate 
 
            it but the prescription prism glasses for the right eye do 
 
            reduce it even though it does not totally eliminate it.  
 
            Normally he sees two images approximately three feet apart.  
 
            The closer the images become the less distance between them 
 
            (Tran. pp. 16 & 17).
 
            
 
                 Claimant testified that before the injury he did not 
 
            wear eye glasses or contacts (Tran. p. 17).
 
            
 
                 Claimant testified that the injury has affected his 
 
            appearance and that it is more noticeable without his 
 
            glasses on.  He is self-conscious and does not want to look 
 
            people in the eye anymore.  His right eyelid droops (Tran. 
 
            p. 20).  His right eye looks off in a different direction.  
 
            His wife and children have reminded him of this (Tran pp. 17 
 
            & 18).  
 
            
 
                 Claimant contended that because of the dirt and dust 
 
            caused by grinding feed for milk cows and the dirt and dust 
 
            of field work he is foreclosed from performing farm work 
 
            (Tran. p. 18).  However, this would appear to be due to his 
 
            eye injury rather than due to disfigurement.  
 
            
 
                 Claimant testified that he did not feel that it was 
 
            safe to do farm work (Tran. pp. 21 & 22).  Dust and dirt 
 
            makes his right eye red and it wanders more.  When he gets 
 
            tired his eyelid droops.  Because of the absence of a lens 
 
            his right eye is light sensitive and closes altogether in 
 
            bright light.  The contact lenses causes tears, and the 
 
            tears cause his eye to dry out and lose lubrication and he 
 
            cannot see at all.  He considers it dangerous to milk cows, 
 
            to get equipment ready, and to clean bays.  The cows' tails 
 
            are dirty at times.  When they swing their tails it could 
 
            strike him in his eyes.  Claimant stated that one piece of 
 
            dirt might cause his eye to be removed.  He fears for the 
 
            loss of his left eye (Tran. pp. 17-23).  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant testified that farming involves being a 
 
            mechanic, a veterinarian and being able to plow straight 
 
            rows.  Crooked rows cost money.  Without his glasses he 
 
            would see double rows and could not keep the rows straight.  
 
            These complaints relate to the physical damage to his right 
 
            eye rather than to the disfigurement of his face.
 
            
 
                 At the time of the hearing claimant said he had milked 
 
            his brother's cows after this injury with goggles but denied 
 
            that he did grinding or performed other tasks such as 
 
            artificial insemination.  
 
            
 
                 At the hearing claimant testified that when he sprays 
 
            for Orkin, his current employer, he wears a respirator, 
 
            goggles, a helmet and coveralls to spray the walls and 
 
            ceiling.  He sprays a chemical solution on the walls.  The 
 
            flys die on contact with the chemical.  He performs one to 
 
            five jobs a day in the summer and in the winter he works as 
 
            a salesman (Tran. p. 36).
 
            
 
                 The question of causal connection is typically within 
 
            the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 383, 101 N.W.2d 167, 171 (1960).  
 
            
 
                 The first problem in this case is that the medical 
 
            evidence does not mention the word disfigurement.
 
            
 
                 The chief treating physician, Larry M. Zweben, M.D., a 
 
            board certified ophthalmologist,  nowhere in his office 
 
            notes or medical reports mentions the word disfigurement, 
 
            save make a professional medical statement that claimant has 
 
            sustained a permanent facial or head disfigurement, or that 
 
            any disfigurement is the cause of any of claimant's 
 
            permanent disability.  Dr. Zweben's treatment and recorded 
 
            medical information focus upon the physical aspects and 
 
            physical impairment to the eye which he applies to the 
 
            Guides to the Evaluation of Permanent Impairment, to 
 
            determine "Diminished visual ability".
 
            
 
                 The term loss also includes loss of use but in the case 
 
            of subsection t., which is a scheduled member injury 
 
            section, the statute, nevertheless, provides an industrial 
 
            disability standard, but compensation is not to exceed 150 
 
            weeks of permanent partial disability benefits.  Thus, 
 
            subsection t. is unique from all of the preceding 
 
            subsections in 85.34(2) in that it provides an industrial 
 
            disability standard for a scheduled member injury up to the 
 
            statutory maximum of 150 weeks.  Moses v. National Union 
 
            Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921); Byrnes 
 
            v. Donaldson's Inc., 451 N.W.2d 810, 811 (Iowa 1990).
 
            
 
                 The second problem in this case with awarding permanent 
 
            disability benefits for disfigurement for this tragic injury 
 
            is the fact that Dr. Zweben did not restrict claimant from 
 
            following the occupation of either a self-employed farmer or 
 
            from following the occupation of a farm laborer hired by 
 
            other farmers.  Claimant's contention that Dr. Zweben told 
 
            him not to farm is not supported by the medical evidence.  
 
            In fact, Dr. Zweben did not impose any permanent 
 
            restrictions on claimant, but on the contrary released 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant to "full duties" on December 25, 1990 (Defendants 
 
            Exhibit 4).  
 
            
 
                 It should be noted at this time that after Dr. Zweben 
 
            performed surgery on August 22, 1990 that Ira Priluck, M.D., 
 
            performed additional surgery at Creighton University Medical 
 
            Center in Omaha on September 6, 1990, but there is no 
 
            information from Dr. Priluck regarding disfigurement or 
 
            disability.  There is nothing other than the operative 
 
            report he dictated at the time of the surgery (Defs' Ex. 2).  
 
            
 
                 The third reason that precludes recovery in this case 
 
            under subsection t. is the fact that claimant has performed 
 
            work as a self-employed farmer for himself for a short 
 
            period of time and he has also worked as farm laborer for 
 
            his brother, which contradicts claimant's testimony that he 
 
            understood that he was medically restricted from farming for 
 
            the reason that if he got dust or dirt in either one of his 
 
            eyes it could result in additional potential harm to his 
 
            vision.  
 
            
 
                 At the time of claimant's deposition on March 2, 1993, 
 
            claimant testified that he did work for his brother milking 
 
            cows from June of 1991 to November of 1991 (Defs' Ex. 9, p. 
 
            17).  Claimant admitted to this fact at the time of this 
 
            hearing.  At the hearing claimant denied that he did 
 
            anything other than simply milk cows for his brother, but in 
 
            his deposition testimony prior to this hearing he testified 
 
            as follows, "I would get up in the morning, I would milk 
 
            cows, I would feed the cows, grind corn for the cows, 
 
            artificial breed the cows, take them to the pasture, bring 
 
            them back in, if any of them were sick, took care of them, 
 
            you took care of the calves, the works." (Ex. 9, p. 18).  
 
            The deposition contradicts claimant's hearing testimony that 
 
            fear of getting dust and dirt in his eyes prevented him from 
 
            dairy farming.  
 
            
 
                 Furthermore, at the deposition claimant testified that 
 
            the only reason he did not return to work for employer in 
 
            this case was because employer had replaced him with another 
 
            employee (Ex. 9, p. 10).  Claimant indicated that he was 
 
            capable of performing farm work for employer after he 
 
            recovered from this injury by the following colloquy, 
 
            
 
                    "Okay.  There's no question in your mind you 
 
                 could have done the work at Greg's had he needed 
 
                 the help?"    
 
            
 
                     A.  Right.  I was anxious to work for him.  I 
 
                 knew -- he's got a lot of ambition, he's got a lot 
 
                 of drive.  I figured I could learn a lot from him.  
 
            
 
                    Q.  But he already hired somebody?  
 
            
 
                    A.  Right. (Defs' Ex. 9, pp. 19 & 20)
 
            
 
                 Claimant's testimony that farmers would not hire him 
 
            after the injury was not supported by any nonmedical or 
 
            medical testimony (Ex. 9, p. 16).  On the contrary, claimant 
 
            testified that when he worked for his brother after the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            injury from June to November of 1991, he earned about $500 a 
 
            month.  On a yearly basis this would constitute an annual 
 
            income of $6,000 (Ex. p. 18).  Claimant stated prior to this 
 
            injury that he worked for his brother for approximately six 
 
            years at $150 a week (Ex. 9, p. 12).  This would constitute 
 
            earnings of $7,800 per year.
 
            
 
                 Claimant testified that he obtained new employment with 
 
            Orkin Pest Control in November of 1991 (Ex. 9, p. 17 & 20).  
 
            He spotted an ad where they were looking for a person with 
 
            dairy experience (Ex. 9, p. 20).  Claimant testified at the 
 
            time of his deposition, on March 2, 1993, that he had earned 
 
            just $300 short of making $40,000 working for Orkin in 1992 
 
            (Ex. 9, pp. 20 & 21).  He stated that he was guaranteed 
 
            $1,300 per month and the balance of it was commissions (Ex. 
 
            9, p. 21).  Claimant testified that his earnings in 1990 
 
            were maybe $7,500 per year (Ex. 9, p. 23).  And it was 
 
            approximately the same in 1989 (Ex. 9, p. 23).  Thus, 
 
            claimant has no actual loss of earnings but rather an actual 
 
            increase in earnings.  He earned more than five times what 
 
            he earned as a dairy farmer and farm laborer.
 
            
 
                 Claimant testified that he has a drivers license (Ex. 
 
            9, p. 25; Ex. 9, Deposition Ex. 1) which qualifies as a 
 
            chauffeur's license (Ex. 9, p. 26).  Claimant acknowledged 
 
            that his license was not restricted in any way because he 
 
            read the vision test with his contact lenses on in August of 
 
            1992 (Ex. 9, pp. 26 & 27).  Claimant testified that he can 
 
            operate a motor vehicle without any problems (Ex. 9, p. 27).  
 
            He testified that he drives sometimes 400 miles a day (Ex. 
 
            9, p. 29).  When he drives two or three hundred miles a day 
 
            his good eye gets tired and he develops headaches.
 
            
 
                 Claimant has been able to perform some recreational 
 
            activities such as (1) football and baseball with his 
 
            children, (2) bowling, (3) golf on one occasion, (4) 
 
            swimming, (5) horseback riding and (6) hunting for pheasants 
 
            maybe once or twice in season, firing left-handed with his 
 
            good eye (Ex. 9, pp. 35 & 36).  Claimant testified that he 
 
            functions fairly well with his contact lenses in and his 
 
            eyeglasses on with the exception of difficulty with depth 
 
            perception.
 
            
 
                 Thus, it can be seen from claimant's deposition 
 
            testimony that most of his problems stem from the physical 
 
            loss to his eye and the components of his eye rather from 
 
            any disfigurement of his head or face.  
 
            
 
                 Claimant's testimony did not link up the disfigurement 
 
            with any of the things he has difficulty doing.  Rather, it 
 
            appears that his difficulties flow from the physical 
 
            impairment to the eye.  However, claimant received full 
 
            payment of 140 weeks for his loss and loss of use to his 
 
            right eye.
 
            
 
                 Claimant did establish that it is possible that 
 
            farmers, who are engaged in high-risk work frequently due to 
 
            working with animals and machinery, might be reluctant to 
 
            hire him with the debility in his right eye which causes him 
 
            to both wear contact lenses and glasses to correct his 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            vision.  However, this is due to the eye injury and not 
 
            disfigurement, based on the evidence of record in this case.  
 
            
 
                 Furthermore, the supreme court has stated that the 
 
            possibility of job losses in the future due to a 
 
            disfigurement having an impact on the ability to obtain 
 
            another job was not sufficient to compel a finding as a 
 
            matter of law that claimant was entitled to permanent 
 
            disability benefits under subsection t.  Byrnes v. 
 
            Donaldson's, Inc., 451 N.W.2d 810 (Iowa 1990).  
 
            
 
                 In the Byrnes case claimant was determined to be able 
 
            to continue to perform factory work.  In this case, claimant 
 
            did not establish, as a matter of fact, that he is unable to 
 
            perform farm work, but on the contrary contradicted his own 
 
            testimony that he could not or should not perform farm work.  
 
            It is noted further that claimant is involved with spraying 
 
            barns with a fly killing solution from May to October and 
 
            dresses appropriately in order to perform this job.  It 
 
            could be stated that he could also dress appropriately for 
 
            farm work by wearing goggles or other required protective 
 
            clothing or devices.  
 
            
 
                 Claimant testified to disfigurement within the right 
 
            eye itself.  He said that you can see a black hole when he 
 
            has his contact lens in that eye (Ex. 9, p. 7).  However, it 
 
            is the opinion of this deputy that subsection p. is intended 
 
            to compensate claimant for eye losses and subsection t. was 
 
            intended to compensate injured employees for permanent 
 
            disfigurement of the face or head which impairs both the 
 
            future usefulness and earnings of the employee in the 
 
            employee's occupation at the time of receiving the injury.  
 
            
 
                 At the time of the impairment rating Dr. Zweben did not 
 
            impose any permanent restrictions or any restrictions of any 
 
            kind on claimant (Ex. 5, pp. 1 & 2).  The retinal scar 
 
            described by Dr. Zweben, in the opinion of this deputy, 
 
            would be compensated under subsection p. since it affected 
 
            the eye and loss of vision and would not be compensated 
 
            under subsection t. as disfigurement to the face and head 
 
            (Exs. 5 & 6).  
 
            
 
                 At claimant's last two office visits on August 13, 1991 
 
            and July 30, 1992, Dr. Zweben did not impose any permanent 
 
            restrictions or any restrictions of any kind (Exs. 6 & 8).  
 
            
 
                 All of Dr. Zweben's notes and reports deal with 
 
            physical impairment to the eye itself.  He never once 
 
            mentions disfigurement by name.  
 
            
 
                 In conclusion, it is determined that claimant sustained 
 
            a facial disfigurement to his head and face; but it has not 
 
            permanently impaired his usefulness to himself as a farmer 
 
            or his usefulness as a farm laborer to other employers; and 
 
            that claimant did not establish, as a matter of fact, that 
 
            the disfigurement to his head and face permanently impaired 
 
            both his usefulness and earnings in his occupation as a 
 
            farmer and a farm laborer in which he was employed when he 
 
            received the injury.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant did not sustain burden of proof by a 
 
            preponderance of the evidence that he sustained a 
 
            disfigurement to his face and head which permanently 
 
            impaired both his usefulness and earnings in his occupation 
 
            as a farmer or his occupation as farm laborer which was 
 
            caused by this injury.  Iowa Code section 85.34(2)(t).  
 
            Moses v. National Union Coal Mining Co., 194 Iowa 819, 184 
 
            N.W. 746 (1921); Byrnes v. Donaldson's Inc., 451 N.W.2d 810, 
 
            811 (Iowa 1990).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no further benefits are owed by defendants to 
 
            claimant caused by this injury.
 
            
 
                 That each party is to pay their own respective costs of 
 
            this proceeding, except that defendants are ordered to pay 
 
            the cost of the attendance of the court reporter at hearing 
 
            and the cost of the transcript of hearing.  Iowa Code 
 
            sections 86.19(1) and 86.40 and rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas R. Mohrhauser
 
            Attorney at Law
 
            425 Main Street
 
            Mapleton, IA  51034
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            701 Pierce Street, Suite 200
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                  1105.80, 1401, 1402.40, 1803, 2901
 
                                  Filed March 9, 1994
 
                                  Walter R. McManus, Jr.
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DARWIN HANSEN, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.      
 
                                                 File No. 958751
 
            GREG L. SMITH, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            GRINNELL MUTUAL REINSURANCE   
 
            COMPANY   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1105.80, 1401, 1402.40, 1803, 2901
 
            
 
                 Claimant, who was a self-employed farmer but was 
 
            working as a farm laborer for another farmer at the time of 
 
            this injury, struck a bearing with a hammer and a large 
 
            metal fragment lodged in his right eye.  The eye itself was 
 
            saved but was severely damaged.
 
            
 
                 Defendants paid claimant the full amount of 140 weeks 
 
            for the loss of the eye pursuant to Iowa Code section 
 
            85.34(2) p.
 
            
 
                 The sole issue in this case was whether claimant 
 
            sustained a permanent disfigurement of the face or head 
 
            which impaired the future usefulness and earnings of the 
 
            employee in the employee's occupation at the time of 
 
            receiving the injury pursuant to Iowa Code section 85.34(2) 
 
            t.
 
            
 
                 It was determined that Claimant had sustained some 
 
            disfigurement of the face or head.  The area around the 
 
            right eye looked different from the area around the left 
 
            eye.  It looked as if it might be injured but it did not 
 
            appear grotesque or unsightly.  Claimant said his right eye 
 
            drooped and looked away from a normal line of vision but 
 
            this was determined to be a disfigurement of the eye itself 
 
            rather than the head or face.
 
            
 
                 It was further determined that the facial disfigurement 
 
            did not impair either claimant's usefulness or earnings as a 
 
            farmer or farm laborer.
 
            
 
                 An interesting observation in this case is that section 
 
            85.34(2) t. appears to this deputy to describe a hybrid type 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of industrial disability of its own.  This may have been the 
 
            legislative intent because it is the only scheduled member 
 
            injury that provides an industrial standard.  However, the 
 
            supreme court in the case of Byrnes v. Donaldson simply 
 
            called it an industrial disability standard and the deputy 
 
            did not attempt to qualify the earlier interpretation of the 
 
            supreme court.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
JACQUELINE M OTTO, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 958767
 
MT ST CLAIR COLLEGE,    
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
ROYAL INSURANCE,   
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Defendants.    
 
________________________________________________________________
 
                 STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Jacqueline Otto against 
 
her former employer, Mount Saint Clair College, its insurance carrier, 
 
Royal Insurance, and also against the Second Injury Fund of Iowa.  The 
 
case was heard at Davenport, Iowa on October 24, 1994.  The evidence 
 
consists of testimony from Jacqueline Otto and Rex Kutzli.  The record 
 
also contains joint exhibits 1 through 22 and defendants' exhibits B, 
 
C, D, E, and F.  
 
 
 
The issues identified by the parties as shown on the hearing report are 
 
that the claimant contends that she is permanently, totally disabled 
 
and relies upon the odd-lot doctrine.  Reference to the odd-lot 
 
doctrine is made in claimant's petition originally filed July 1, 1991.  
 
 
 
The prehearing conference reports filed February 3, 1993 and June 29, 
 
1993 show that permanent partial or total disability was being claimed 
 
and that the place for indicating that the odd-lot will not be asserted 
 
is unmarked, meaning that the odd-lot doctrine will be relied upon.  
 
 
 
There is an issue in the case regarding whether the injury is a 
 
scheduled injury of the right leg or whether it is an unscheduled 
 
injury which is to be compensated industrially.  In the event that the 
 
permanent disability is found to be partial, rather than total, there 
 
is an issue with regard to whether claimant should receive healing 
 
period compensation running from December 18, 1990 through April 7, 
 
1992.  Claimant also seeks penalty benefits based upon the failure to 
 
pay healing period benefits during that span of time.  Claimant also 
 
seeks payment of medical expenses and the cost of an independent 
 
medical examination with Robert Chesser, M.D.  It was stipulated that 
 
Robert E. Magnus, M.D., was an authorized treating physician.  With 
 
regard to the disputed medical expenses, it is noted that all were 
 
incurred with Dr. Magnus, the authorized treating physician.  Claimant 
 
seeks to recover costs.  The Second Injury Fund is also a party with 
 
the Fund contending that if it is held liable that the preexisting 
 
disability be measured industrially, rather than according to its 
 

 
 
 
 
 
 
 
 
 
scheduled compensable value.  The rate of compensation was stipulated 
 
to be $82.34 per week.
 
 
 
                      FINDINGS OF FACT
 
 
 
Jacqueline Otto is a 57-year-old woman who was born with a deformed 
 
right forearm and hand.  The forearm is approximately three-fourths of 
 
normal length and the hand consists of two fingers which start at the 
 
wrist and are joined throughout their length.  Robert J. Chesser, M.D., 
 
rated her as having a 90 percent impairment of her right upper 
 
extremity as a result of the congenital deformity.  (Exhibit 11)  
 
Robert E. Magnus, M.D., the last authorized treating physician, 
 
initially found the impairment to be 80 percent of the right upper 
 
extremity but later changed his opinion to concur with Dr. Chesser.  
 
(Exs. 6c; 6e; 20, page 39)  The deformity is medically described in 
 
exhibits 1a, page 2 and 2a, pages 2 and 3.
 
 
 
Jacqueline was also afflicted in childhood with problems affecting both 
 
of her knees.  She eventually had surgery on her knees to resolve much 
 
of those problems.  She experienced a relatively good result from the 
 
knee surgeries which were performed to stabilize her patellas which had 
 
a problem with dislocation.  (Ex. 1a)  According to claimant she was 
 
able to function well after the knee surgeries and did not have 
 
problems with pain.  She has lived a normal life, raised five children 
 
and been employed since 1984, mostly as a cook.  According to claimant, 
 
her knees did not bother her particularly until the fall that is the 
 
subject of this case though she was unable to crawl or perform 
 
activities such as climbing a ladder or bending her knees more than 
 
that involved when seated.  In 1990 she earned approximately $6000 from 
 
employment.  In 1989 she had earned approximately $6850.  (Ex. 16)  
 
Prior to 1984 she had principally functioned as a homemaker.  
 
 
 
Claimant did not complete high school.  Her formal education is limited 
 
to the tenth grade.  As confirmed by Dr. Magnus in his deposition, 
 
claimant is not a sophisticated woman in regards to medical matters or 
 
things of that nature.  (Ex. 20, p. 25)  From observing her at hearing 
 
it is readily apparent that her level of academic and intellectual 
 
functioning does not exceed her tenth grade education.  
 
 
 
Jacqueline Otto is permanently and totally disabled.  She is not 
 
gainfully employable in the competitive labor market.  She was last 
 
employed on December 19, 1990, when her employment with the defendant 
 
employer was terminated.  She received two weeks of severance pay.  Rex 
 
Kutzli, a chef with whom she had worked for the defendant employer, was 
 
of the understanding that there had been some ongoing problem with her 
 
job performance.  He thought that the problem was associated with 
 
cooking large quantities and that she did not have the endurance to 
 
perform large quantity cooking.  He did not recall her last few months 
 
of work very well.  He did, however, recall that she had complained of 
 
her knee after she returned to work after her fall, but not about her 
 
back.  He did not recall her complaining about the knee prior to the 
 
time that she had fallen.  He felt that her job performance was similar 
 
both before and after the fall.  Kutzli confirmed that claimant had 
 
regular performance reviews and written reports.  None of those reviews 
 
or reports were entered into evidence.  Kutzli was not involved in 
 
making the decision to terminate claimant's employment.
 
 
 
Dr. Magnus has completed a report showing what he considers to be 
 
claimant's functional capabilities.  (Ex. E)  She is permitted to 
 
perform some activities occasionally, meaning one to three hours during 
 
an eight-hour day.  The others she is to never perform.  She can never 
 
climb, stoop, kneel, or crawl.  Her weightlifting is limited to ten 
 
pound.   Dr. Magnus has prescribed a wheelchair.  (Ex. 20, p. 40; Ex. 
 
6d)  The wheelchair was prescribed because of the condition of her left 
 
hip and low back.  According to claimant, her right knee functions 
 
almost as well now as it did prior to the time that she fell.  
 
 
 
Dr. Magnus considers claimant to be unable to perform gainful 
 
employment.  (Ex. 20, pp. 18-21)  Dr. Chesser does not comment upon 
 
whether or not claimant is capable of gainful employment but he finds 
 
her to have a 63 percent impairment of the whole person.  That amount 
 
is extremely large in comparison to impairments commonly seen by this 
 
agency.  Claimant was evaluated by Judy Stengel, a well-qualified 
 

 
 
 
 
 
 
 
 
 
vocational consultant who is certified as both C.R.C. and C.I.R.S.  
 
Stengel felt that claimant was not capable of obtaining employment.  
 
(Ex. 12)  The only person in this record of this case who seems to feel 
 
that this claimant is not totally disabled is Maggie Reelfs, a 
 
vocational consultant who is not certified and who has never met or 
 
observed the claimant.  (Exs. B, 13)  Reelfs recommended sedentary 
 
jobs, none of which appear to be positions that the claimant has ever 
 
held previously.  There is nothing in the record to indicate that this 
 
claimant has any skills for performing sales work.  Telemarketing jobs 
 
typically involve use of computers and keyboarding.  It is difficult to 
 
see how Reelfs determined that claimant was capable of operating a 
 
computer and performing the extensive keyboarding typically associated 
 
with telemarketing in view of the claimant's right hand deformity and 
 
lack of any previous training or experience with computers.  (At page 5 
 
of exhibit 13, appears a newspaper ad for the Signature Group seeking 
 
telemarketers.  The first paragraph of the text of the ad reads, 
 
"Summer may be over but we're still 'Hot'!  Brand new computers coming 
 
in September.  Be first in line to learn this state of the art 
 
equipment.")  One of the ads for the jobs that Reelfs submitted as 
 
having potential for claimant was for certified aids, personal care 
 
aids, certified live-ins and night help.  The ad is found at the left 
 
side of page 5 of exhibit 13.  Claimant may very well be in need of 
 
that type of services but certainly is not capable of performing those 
 
types of services for others.  According to claimant she needs to have 
 
her son or daughter take her to the places she needs to go.  It is 
 
difficult to see how she could obtain a job as a driver.  It is 
 
difficult to see how she would even be capable of getting to work if 
 
anyone were inclined to hire her.  The report from Maggie Reelfs 
 
appears to be nothing more than evidence purchased for purposes of 
 
litigation.  It is totally unrealistic and is entitled to receive no 
 
weight whatsoever.
 
 
 
The undersigned finds Jacqueline Otto to be a credible witness despite 
 
the inconsistency between her recollection of her post-injury hours of 
 
work and the records showing her hours of work.  Throughout her 
 
appearance at the hearing, the claimant appeared frank, open and 
 
nonevasive.  It is noted that claimant's work hours seem to have 
 
increased with her return to work.  (Ex. 15)  It is noted that the 
 
defendant employer is a college and that the fall session typically 
 
begins at about the time when claimant resumed work.  It would also be 
 
expected that the employer would be anxious about having sufficient 
 
staff when the fall class session began.  The undersigned is in full 
 
agreement with the assessment made by Jay Ginther, M.D., her original 
 
treating surgeon, when he states that she is a rugged and determined 
 
individual who tends to try to bull her way through things and to 
 
ignore any problems that she might have.  (Exs. 2b, 2c)  This claimant 
 
is a very industrious individual who would be working if her physical 
 
condition would permit.  Based on the foregoing it is abundantly clear 
 
that Jacqueline M. Otto is totally disabled and there appears no 
 
reasonable likelihood that her status will change.  
 
 
 
Despite all her preexisting problems, and she has many, Jacqueline Otto 
 
was capable of working and being gainfully employed until she fell on a 
 
slick ramp at her place of employment on August 3, 1990.  Her 
 
description of her knee being grotesquely twisted is accepted as being 
 
correct.  Others were apparently present and no one was called to 
 
dispute the claimant's description.  The fact of the injury having 
 
occurred is not being disputed.  Deformity with swelling was noted when 
 
she was seen at the emergency room.  (Ex. 3a)
 
 
 
Claimant's initial authorized treating physician was Jay Ginther, M.D., 
 
an orthopedic surgeon.  His initial assessment in a note dated August 
 
6, 1990 states, "The knee is arthritic.  It clearly is going to need 
 
total knee replacement some day, but for right now it is probably going 
 
to recover, given proper rest."  According to claimant she was being 
 
harassed by her employer and pressured into returning to work.  At her 
 
request, Dr. Ginther allowed her to return to work on August 20, 1990.  
 
(Ex. 2a)  The release shows authorization for regular duty.  (Ex. D)  
 
 
 
In his report of June 5, 1993, Dr. Ginther explains that he would have 
 

 
 
 
 
 
 
 
 
 
preferred to allow her to return to restricted work but that 
 
restrictions would have made it impossible for her to continue in her 
 
job.  He goes on to state that the attempt to do full duty as a cook 
 
contributed to the speed with which her knee degenerated following the 
 
injury.  He also states that he agreed that on December 18, 1990, that 
 
she was certainly unfit to perform her full regular duties as a cook.  
 
(Ex. 2c)  That same report notes that claimant was given an injection 
 
on September 10, 1990 and that the knee was already decompensating.  
 
 
 
The termination of claimant's employment purports to be justified by 
 
vague allegations of substandard work performance.  Interestingly, 
 
there is no direct evidence from the individuals who made the decision 
 
to terminate employment.  Despite the fact that employee evaluations 
 
were conducted, there is no evidence in the record showing that the 
 
claimant was ever warned, counseled or reprimanded regarding her job 
 
performance.  The medical evidence, however, makes it quite easy to 
 
believe that claimant would have experienced considerable difficulty in 
 
performing work which required her to be on her feet for extended 
 
periods of time, particularly if the work required carrying large 
 
quantities of food.  With the restrictions which Dr. Ginther indicated 
 
in his June 5, 1993 report would have been appropriate,  namely two to 
 
four hours on her feet and no significant lifting or carrying, it is 
 
apparent that she would have been unable to perform the normal duties 
 
of her position with Mount Saint Clair College.  There is nothing in 
 
the record which indicates that, subsequent to the termination of 
 
employment, this claimant was ever capable of resuming employment 
 
substantially similar to in which she was engaged at the time of her 
 
injury.  To the contrary, she remained quite symptomatic, disabled and 
 
under medical care.  She was not in a light work capacity or status at 
 
the time of the injury.  Recovery to the point of being capable of 
 
light work would not make her capable of employment substantially 
 
similar to that in which she was engaged at the time of the injury.  
 
 
 
When it became apparent to Dr. Ginther that the knee was decompensating 
 
and was not recovering as had initially been expected or hoped, he felt 
 
it was necessary to proceed to perform a total knee replacement.  By 
 
January 23, 1991, Dr. Ginther was recommending total knee replacement 
 
arthroplasty.  Dr. Ginther attributed the need for the surgery to the 
 
fall at work as an aggravation of the preexisting, arthritic condition. 
 
 
 
 The progress notes show that the claim manager for Royal Insurance was 
 
notified of his recommendation.  (Ex. 2a, p. 1)  
 
 
 
The adjuster or claim manager for Royal Insurance apparently was 
 
reluctant to accept the recommendation from Dr. Ginther.  Claimant was 
 
sent to Charles T. Cassel, M.D., another orthopedic surgeon, for a 
 
second opinion.  Dr. Cassel agreed with Dr. Ginther that total joint 
 
replacement was warranted and that the fall aggravated an underlying 
 
arthritic condition and made a substantial change in the condition.  
 
(Ex. 4)  Claimant was seen by Dr. Cassel on or about June 7, 1991.  The 
 
claim manager or adjuster for Royal Insurance apparently continued to 
 
refuse to accept the medical expertise of Drs. Cassel and Ginther.  
 
 
 
Approximately eight months later claimant was sent for a third opinion 
 
to Michael H. Gerdes, M.D., a third orthopedic surgeon.  Dr. Gerdes was 
 
in agreement with Drs. Ginther and Cassel.  He felt that total knee 
 
arthroplasty was reasonable.  He also states, "It is my impression that 
 
the patient's current situation of ill being [sic] is directly related 
 
to her falls, despite the fact that she had preexistent arthritis."  
 
(Ex. 5)
 
 
 
Eventually, on April 7, 1992, claimant was hospitalized to have the 
 
right, total knee replacement surgery.  Dr. Ginther was the surgeon who 
 
performed the procedure.  A great deal of arthritic changes were noted 
 
during the procedure.  (Ex. 3b)  
 
 
 
Following the surgery claimant underwent a relatively unremarkable 
 
course of recovery.  Dr. Ginther moved his practice to Waterloo, Iowa 
 
and claimant's care was changed to Robert E. Magnus, M.D., another 
 
orthopedic surgeon.  
 
 
 
The delay in getting the knee replacement surgery performed turned out 
 
to be harmful to claimant in its own right.  Claimant was walking with 
 
a cane and an altered gait.  By October 21, 1991, she had developed 
 

 
 
 
 
 
 
 
 
 
clinically significant trochanteric bursitis in her hip.  X-rays showed 
 
the knee to be rapidly degenerating since the time of her injury.  He 
 
reports that the problem with the knee has created the trochanteric 
 
bursitis and he also states that the problem is also probably a factor 
 
in her left wrist inflammation.  A diagnosis of de Quervain's 
 
tenosynovitis was made and conservative treatment applied.  (Ex. 2a, p. 
 
2)  The following visit of November 4, 1991, showed some improvement of 
 
the tenosynovitis but in December the notes show that the tenosynovitis 
 
was continuing and sufficiently severe to consider surgery.  (Ex. 2a, 
 
p. 2)  A note of February 28, 1992, indicates increased varicosities in 
 
her veins on the basis of swelling within the knee joint.  (Ex. 2a, p. 
 
3)  Finally, after all the other conditions arose, the knee replacement 
 
surgery was authorized and performed.  
 
 
 
In a note dated July 8, 1992, claimant was shown to be doing well and 
 
that the normally expected period for recovery from total knee 
 
replacement surgery was six months.  In that note Dr. Ginther states 
 
that from a practical standpoint retraining is probably not much of an 
 
option but that in view of the apparent success of the knee replacement 
 
surgery that there was a reasonable chance of getting her back to her 
 
normal occupation.  (Ex. 2a, p. 5)  On September 8, 1992, when seeing 
 
Dr. Magnus, claimant made complaint of low back and left hip pain.  The 
 
doctor's note is obviously in error where he states that she reports 
 
that she did not have problems with either one until after her right 
 
total knee replacement.  The record clearly demonstrates that the 
 
problems came on approximately one year after the injury, several 
 
months before the actual knee replacement surgery.  Dr. Magnus 
 
attributes the spinal complaints to long-standing arthritis being 
 
aggravated by rehabilitation for the knee.  He also relates the greater 
 
trochanteric bursitis to the rehabilitation program.  (Ex. 6a, p. 1)  
 
 
 
In his report of January 12, 1993, Dr. Magnus explained that protected 
 
weightbearing of the right knee necessitated use of the cane which 
 
initiated claimant's left wrist and left hip symptoms.  He noted that 
 
his treatment with steroid injections for the hip and back provided 
 
some improvement but that it was incomplete.  At that point in time the 
 
right knee was essentially asymptomatic.  (Ex. 6c)  Dr. Magnus went on 
 
to report that the delay in obtaining the knee replacement surgery 
 
triggered the left wrist cyst and de Quervain's tenosynovitis.  He 
 
indicated that the fall and altered mechanics of walking subsequent to 
 
the fall were responsible for producing the trochanteric bursitis in 
 
the hip, the low back complaints and the left wrist condition.  He 
 
acknowledged that the knee and back conditions were aggravations of 
 
preexisting arthritis.  Dr. Magnus apportioned claimant's disability 
 
with 60 percent being preexisting and 40 percent due to the injury.  
 
Later, in his deposition, he retreated from that apportionment and 
 
stated that the preexisting percentage should be larger.  (Ex. 20, pp. 
 
37, 44)  
 
 
 
In the January 12, 1993 report, Dr. Magnus indicated that claimant 
 
could work if there was work that required no prolonged standing, 
 
walking, bending, stooping, or heavy lifting.  He also felt that with 
 
her present restrictions she could not perform excessive twisting, 
 
stooping, lifting over 15 pounds or prolonged standing or ambulation.  
 
 
 
Claimant was evaluated by Robert J. Chesser, M.D., on or about November 
 
18, 1993.  Dr. Chesser's report shows his opinion that the fall 
 
precipitated the need for the right knee replacement as an aggravation 
 
of a preexisting arthritic condition.  He also felt that the left 
 
wrist, low back and left hip conditions were compensatory changes 
 
related to abnormal mechanics of walking.  He reported that the wrist 
 
and hip were not severely disabling but do have some impairment from 
 
chronic tendinitis and bursitis.  He found the low back condition to be 
 
somewhat more limiting or disabling.  He stated that use of a cane with 
 
abnormal gait would aggravate degenerative disc disease.  He felt that 
 
the abnormalities were a consequence of the fall and that the fall 
 
aggravated preexisting degenerative changes.  Dr. Chesser found the 
 
right knee to provide a 26 percent permanent impairment of the right 
 
lower extremity, he found the left lower extremity to have a 5 percent 
 
permanent impairment due to bursitis and the left upper extremity to 
 

 
 
 
 
 
 
 
 
 
have a 5 percent permanent impairment.  He found claimant's back to 
 
have a 5 percent impairment of the whole person due to degenerative 
 
changes.  He found the right upper extremity to be 90 percent impaired 
 
congenitally.  He converted all of the impairments into a 63 percent 
 
impairment of the whole person.  
 
 
 
Dr. Magnus found the left lower extremity to be impaired to the extent 
 
of 14 percent.  In the January 12, 1993 report, Dr. Magnus had assigned 
 
a 20 percent impairment rating to claimant's right lower extremity due 
 
to the knee replacement.  He assigned an 80 percent permanent 
 
impairment rating to the right upper extremity due to the congenital 
 
condition.  He reported that if those were the only two problems, 
 
claimant could probably return to work.  He went on to report that 
 
however, with the low back, left hip and left wrist, she could not work 
 
and had been disabled since August 3, 1990.
 
 
 
Claimant was evaluated by Ellen M. Ballard, M.D., a physiatrist, on or 
 
about April 6, 1993.  Dr. Ballard made recommendations for treatment.  
 
Dr. Ballard recommended that claimant not return to work.  (Exs. 10a, 
 
10b)  
 
 
 
When deposed, Dr. Magnus attributed claimant's knee replacement 
 
primarily to the preexisting changes.  (Ex. 20, p. 11)  He stated that 
 
the fall didn't cause arthritis in her back but could aggravate it.  
 
(Ex. 20, pp. 14-15)  He also stated that the left hip and wrist 
 
complaints were not directly due to the fall but that they were 
 
indirect results.  The wrist problem was due to use of a cane while the 
 
hip was due to claimant's altered gait.  He stated that the use of the 
 
cane brought on the left wrist, hip and back problems.  (Ex. 20, pp. 
 
16-17, 36-37)  Dr. Magnus was of the opinion that the overwhelming 
 
majority of claimant's disability was due to her preexisting 
 
degenerative changes.  (Ex. 20, pp. 45-46)  Dr. Magnus went on to state 
 
that it was inevitable that claimant would eventually need knee 
 
replacement even if she had not fallen.  (Ex. 20, pp. 17, 24)  Dr. 
 
Magnus stated that a fall, when preexisting osteoarthritis is present, 
 
very commonly produces increased pain and that the pain is probably due 
 
to more inflammation in the joint.  He agreed that the fall was an 
 
aggravating factor and that knee replacement is indicated by pain that 
 
doesn't respond to conservative treatment.  He was unable to express an 
 
opinion as to when claimant would have needed the right knee 
 
replacement if she had not fallen.  He stated that there was no 
 
question but that the fall aggravated and possibly accelerated the knee 
 
for surgery. (Ex. 20, pp. 29-34)  
 
 
 
It is found as a matter of fact that claimant had very significant, 
 
preexisting degenerative changes in both of her knees as well as her 
 
back.  There is little disagreement among the doctors in this case.  It 
 
is quite possible that if asked, any of the orthopedic surgeons would 
 
attribute most of the disability to the preexisting conditions.  Were 
 
it not for those preexisting conditions, the injury would have likely 
 
turned out to be quite minor.  Such was not, however, the case.  The 
 
greater weight of the evidence tends to show that claimant was released 
 
to return to work prematurely and that her employment was terminated 
 
when she was unable to perform suitably.  
 
 
 
Further compounding the problem was the delay in obtaining the knee 
 
replacement surgery, despite the uniform opinion from all the 
 
orthopedic surgeons who were consulted that the knee replacement 
 
surgery was warranted and that the need for the surgery resulted from 
 
the fall aggravating the preexisting, degenerative condition.  As a 
 
result of the altered gait during the one and one-half years of delay 
 
in obtaining authorization for the surgery, claimant also developed 
 
permanent problems in her low back, left hip and left wrist.  The 
 
impairment ratings from Dr. Chesser are corroborated by Dr. Magnus and 
 
are found to be correct.  Interestingly, the condition of claimant's 
 
right knee is probably nearly as good as it was prior to the time that 
 
she fell, despite the impairment ratings.  It must be noted that a 20 
 
percent impairment rating results from merely having the knee 
 
replacement procedure.  When it is considered that the left knee has a 
 
14 percent impairment without the surgery having been performed, the 
 
good result from the surgery becomes apparent.  The factors which now 
 

 
 
 
 
 
 
 
 
 
limit the claimant most greatly and prevent her return to work are the 
 
left hip, low back and left wrist problems more so than the right arm 
 
and right knee problems.  The right knee is essentially as functional 
 
now as it was prior to the time that she fell and the right arm is no 
 
different.  She was able to work and be gainfully employed when those 
 
were her only problems.  This case must be determined based upon what 
 
did occur, not what might have occurred if some other course of action 
 
had been chosen by the parties in charge of the medical care.  
 
 
 
It is seldom unreasonable to request a second opinion.  When the second 
 
opinion completely corroborates the first opinion the reasonableness of 
 
seeking a third opinion becomes questionable.  When considering the 
 
reasonableness of second and third opinions, the timing also becomes a 
 
factor.  The considerable delay when obtaining the second opinion 
 
borders upon unreasonable conduct.  The even greater delay in obtaining 
 
the third opinion from Dr. Gerdes clearly crosses the bounds of 
 
reasonableness.  This claimant was in a severely disabled condition 
 
with a severely symptomatic condition yet it took the defendants more 
 
than a year from the time that the original authorized treating surgeon 
 
recommended the knee replacement procedure in order to obtain the 
 
second and third opinions.  There is simply no justification for delay 
 
in providing the recommended surgery and in denying weekly compensation 
 
benefits for healing period beyond the time that Dr. Cassel expressed 
 
the second opinion.  If the claims manager had acted promptly, all 
 
three opinions could have easily been obtained by June 7, 1991.  The 
 
continued denial of weekly healing period benefits subsequent to June 
 
7, 1991 is found to have been totally unreasonable based upon the facts 
 
which were known both then and now.  
 
 
 
A very substantial question exists in this case with regard to whether 
 
or not this claimant would be totally disabled if her right arm and 
 
left knee were unimpaired.  Nevertheless, the restrictions due to the 
 
right knee, left hip, low back, and left wrist are such that it is 
 
doubtful that the claimant would be capable of gainful employment in 
 
the competitive labor market.  Even if the claimant had a normal right 
 
arm and even if her left knee were not impaired, it is still unlikely 
 
that she would be capable of obtaining and performing gainful 
 
employment.  Restrictions on standing, twisting, prolonged walking and 
 
so forth, are simply enough to eliminate her from the employment 
 
market.  There has been no showing that there is any work available 
 
which she would have a reasonable prospect of obtaining and then 
 
performing even if her right arm and left knee were unimpaired.  Her 
 
lack of education and skills when combined with the limitations 
 
attributable to the left wrist, left hip, right knee, and low back are 
 
sufficient to have her be deemed totally disabled.
 
 
 
                    CONCLUSIONS OF LAW
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. of App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 

 
 
 
 
 
 
 
 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
A personal injury contemplated by the workers' compensation law means 
 
an injury, the impairment of health or a disease resulting from an 
 
injury which comes about, not through the natural building up and 
 
tearing down of the human body, but because of trauma.  The injury must 
 
be something which acts extraneously to the natural processes of nature 
 
and thereby impairs the health, interrupts or otherwise destroys or 
 
damages a part or all of the body.  Although many injuries have a 
 
traumatic onset, there is no requirement for a special incident or an 
 
unusual occurrence.  Injuries which result from cumulative trauma are 
 
compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. 
 
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An 
 
occupational disease covered by chapter 85A is specifically excluded 
 
from the definition of personal injury.  Iowa Code section 85.61(5); 
 
Iowa Code section 85A.8.
 
 
 
Aggravation of a preexisting condition is one manner of sustaining a 
 
compensable injury.  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).
 
 
 
In this case it is abundantly clear that this claimant had preexisting, 
 
degenerative arthritis in her back, right knee and left knee.  The 
 
greater weight of the evidence is that the fall directly aggravated the 
 
arthritis in the right knee causing the need for knee replacement 
 
surgery and increased disability of the knee, albeit minimal.  The fall 
 
indirectly, however, permanently aggravated the preexisting, 
 
degenerative condition in claimant's spine and also produced 
 
trochanteric bursitis in her left hip and tenosynovitis in her left 
 
wrist.  Accordingly, the defendant employer is liable for all of the 
 
disability that resulted, directly or indirectly from the fall, 
 
including that which resulted from the delay in providing the knee 
 
replacement surgery.  
 
 
 
Industrial disability or loss of earning capacity is a concept that is 
 
quite similar to impairment of earning capacity, an element of damage 
 
in a tort case.  Impairment of physical capacity creates an inference 
 
of lessened earning capacity.  The basic element to be determined, 
 
however, is the reduction in value of the general earning capacity of 
 
the person, rather than the loss of wages or earnings in a specific 
 
occupation.  Post-injury earnings create a presumption of earning 
 
capacity.  The earnings are not synonymous with earning capacity and 
 
the presumption may be rebutted by evidence showing the earnings to be 
 
an unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 
 
1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. 
 
Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, 
 
Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
County, Thirty-fourth Biennial Report of the Industrial Commissioner 
 
218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 
 
57.31.
 
 
 
Total disability does not mean a state of absolute helplessness.  
 
Permanent total disability occurs where the injury wholly disables the 
 
employee from performing work that the employee's experience, training, 
 
education, intelligence and physical capacities would otherwise permit 
 

 
 
 
 
 
 
 
 
 
the employee to perform.  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 
 
899 (1935).
 
 
 
A finding that claimant could perform some work despite claimant's 
 
physical and educational limitations does not foreclose a finding of 
 
permanent total disability, however.  See Chamberlin v. Ralston Purina, 
 
File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading 
 
Corp., II Iowa Industrial Commissioner Report 134 (App. 1982).
 
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa 
 
court formally adopted the "odd-lot doctrine."  Under that doctrine a 
 
worker becomes an odd-lot employee when an injury makes the worker 
 
incapable of obtaining employment in any well-known branch of the labor 
 
market.  An odd-lot worker is thus totally disabled if the only 
 
services the worker can perform are "so limited in quality, 
 
dependability, or quantity that a reasonably stable market for them 
 
does not exist."  Guyton, 373 N.W.2d at 105.
 
 
 
The burden of persuasion on the issue of industrial disability always 
 
remains with the worker.  When a worker makes a prima facie case of 
 
total disability by producing substantial evidence that the worker is 
 
not employable in the competitive labor market, the burden to produce 
 
evidence of suitable employment shifts to the employer, however.  If 
 
the employer fails to produce such evidence and if the trier of fact 
 
finds the worker does fall in the odd-lot category, the worker is 
 
entitled to a finding of total disability.  Guyton, 373 N.W.2d at 106.  
 
Even under the odd-lot doctrine, the trier of fact is free to determine 
 
the weight and credibility of evidence in determining whether the 
 
worker's burden of persuasion has been carried, and only in an 
 
exceptional case would evidence be sufficiently strong as to compel a 
 
finding of total disability as a matter of law.  Guyton, 373 N.W.2d at 
 
106.
 
 
 
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.
 
 
 
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).
 
 
 
There is evidence in this case that the primary cause of the claimant's 
 
current state of disability is her preexisting, degenerative condition. 
 
 
 
 There is some truth to that evidence.  Even the claimant herself 
 
admits that she had restricted range of motion and restricted use of 
 
her knees prior to falling on August 3, 1990.  The restrictions did not 
 
prevent her from walking or standing but did affect the range of motion 
 
and activities such as climbing, crawling and kneeling.  Her knees 
 
certainly would have warranted a rating of permanent impairment if an 
 
evaluation had been conducted.  As indicated by Dr. Magnus in his 
 
deposition at page 17, the degeneration was probably similar in both 
 
knees prior to the time of the fall.  With regard to the impact of the 
 
fall, however, it must be noted that by the time of hearing more than 
 
three years had elapsed since surgery was first recommended for the 
 
right knee and surgery has not yet been recommended for the left.  This 
 
is true despite the fact that the left knee carried much of the burden 
 
during those times when claimant was unable to bear weight on her right 
 
knee.  This is a very strong indication that the fall did in fact 
 
significantly aggravate and accelerate the preexisting condition of the 
 
right knee.  It is further evidence of the fact that the knee 
 
conditions were not, of themselves, particularly disabling from an 
 
industrial standpoint for claimant's chosen occupation of cooking.  
 
 
 
There is simply no basis for apportioning industrial disability in the 
 
record of this case.  Claimant is clearly permanently and totally 
 
disabled, regardless of whether or not the odd-lot doctrine is relied 
 
upon.  Based upon the findings previously made it is determined that 
 
even when the right hand and left knee preexisting disabilities are 
 
excluded, that the claimant would still be permanently and totally 
 
disabled, although reliance on the odd-lot doctrine is necessary in 
 
order to sustain the finding of permanent, total disability when the 
 
condition of the right arm and left knee are excluded.  
 
 
 
It is therefore concluded that the employer and its insurance carrier 
 
are solely responsible for payment for the claimant's state of 
 
permanent, total disability.  While a basis for Second Injury Fund 
 
liability certainly exists in view of the preexisting, congenital right 
 
arm disability and the preexisting disability in the left knee, the 
 
gist of the Second Injury Fund Act is to make the employer liable for 
 
only the degree of disability which would be placed upon it if the 
 
preexisting disabilities had not existed.  The Second Injury Fund then 
 
is held responsible for payment of whatever additional disability is 
 
attributable to the preexisting disabilities.  In a case such as this, 
 
where the employer's liability is for permanent, total disability, 
 
there is nothing for the Second Injury Fund to pay since the workers' 
 
compensation laws do not provide for disability that is greater than 
 
total disability.  
 
 
 
In like manner, there is no basis for apportionment in this case 
 
because the injury has caused permanent, total disability.  The 
 
humanitarian and beneficent construction which is required to be given 
 
to the statute strongly weighs against denying benefits when a bona 
 
fide need exists.  The humanitarian and beneficent purposes of the 
 
workers' compensation acts are thwarted if benefits are not paid at the 
 
time when they are needed.  While this claimant certainly had 
 
preexisting physical disabilities, she was still able to work.  Her 
 
earning capacity was likely limited by her preexisting conditions.  
 
 
 
That fact is well reflected by her rate of compensation, a rate which 
 
is less than half of the average rate commonly seen by this agency.  A 
 
person's earnings capacity is normally reflected by their actual 
 
earnings and rate of compensation.  A person with relatively high 
 
earning capacity typically has high earnings and a relatively high rate 
 
of compensation.  A person with less earning capacity usually has 
 
lesser earnings and a lower rate of compensation.  To attempt to 
 
further apportion by imposing either a waiting period or by further 
 
reducing the rate of weekly compensation provides an unjust and 
 
illogical result.  Apportionment of disability has already occurred as 
 
evidenced by the relatively low rate of earnings and relatively low 
 
rate of weekly compensation.  Any further reduction of weekly benefits 
 

 
 
 
 
 
 
 
 
 
under a theory of apportionment for preexisting disability is 
 
irreconcilable with the beneficent purposes of the workers' 
 
compensation statutes.  It must be noted that nothing in the statute 
 
itself speaks of apportionment.  Apportionment is an equitable theory.  
 
 
 
It is fully applicable when dealing with scheduled injuries.  It is 
 
not, however, when dealing with industrial disability since the weekly 
 
rate of compensation in most cases will already reflect any reduction 
 
of earning capacity that has previously occurred.  In this case, 
 
Jacqueline Otto had a relatively small earning capacity prior to the 
 
time of this injury.  As a result of the injury she has lost all that 
 
she had.  It is a loss of 100 percent of the earning capacity that 
 
existed at the time of injury.  Accordingly, there is no basis for 
 
further apportionment of her award through a waiting period or 
 
reduction in the weekly benefit amount on account of her preexisting 
 
disability.
 
 
 
Section 86.13 permits an award of up to 50 percent of the amount of 
 
benefits delayed or denied if a delay in commencement or termination of 
 
benefits occurs without reasonable or probable cause or excuse.  The 
 
standard for evaluating the reasonableness of defendants' delay in 
 
commencement or termination is whether the claim is fairly debatable.  
 
Where a claim is shown to be fairly debatable, defendants do not act 
 
unreasonably in denying payment.  See Stanley v. Wilson Foods Corp., 
 
File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa 
 
Physical Plant, File No. 818849 (App. November 1, 1989).
 
 
 
Claimant seeks penalty for the failure to pay weekly benefits between 
 
the dates of December 18, 1990 through April 7, 1992.  The full penalty 
 
of 50 percent of the amount unreasonably delayed and denied will be 
 
awarded.  While it was initially reasonable to seek a second opinion, 
 
it became unreasonable to continue to deny benefits after the time that 
 
the second opinion was obtained.  It became further unreasonable to 
 
continue to have denied and failed to have paid those benefits after 
 
the third opinion on causation and the need for the knee replacement 
 
surgery was obtained.  If those benefits had been paid in a lump sum 
 
together with interest that had accrued, there would be some defense or 
 
mitigation but such did not occur.  Accordingly, a full 50 percent 
 
penalty will be awarded.  The timespan from December 19, 1990 through 
 
April 6, 1992 is 67 6/7 weeks.  Two weeks of severance pay satisfy two 
 
weeks of benefits.  Rule 343 IAC 8.4.  The unpaid portion is 65 6/7 
 
weeks.  The total is $5,422.67.  Accordingly, a penalty under the 
 
fourth paragraph of section 86.13 in the amount of $2,711.33 will be 
 
assessed.  
 
 
 
Section 85.39 permits an employee to be reimbursed for subsequent 
 
examination by a physician of the employee's choice where an 
 
employer-retained physician has previously evaluated "permanent 
 
disability" and the employee believes that the initial evaluation is 
 
too low.  The section also permits reimbursement for reasonably 
 
necessary transportation expenses incurred and for any wage loss 
 
occasioned by the employee's attending the subsequent examination.
 
Defendants are responsible only for reasonable fees associated with 
 
claimant's independent medical examination.  Claimant has the burden of 
 
proving the reasonableness of the expenses incurred for the 
 
examination.  See Schintgen v. Economy Fire & Casualty Co., File No. 
 
855298 (App. April 26, 1991).  Defendants' liability for claimant's 
 
injury must be established before defendants are obligated to reimburse 
 
claimant for independent medical examination.  McSpadden v. Big Ben 
 
Coal Co., 288 N.W.2d 181 (Iowa 1980)
 
 
 
Since Dr. Magnus was an authorized physician to whom claimant had been 
 
expressly directed by the defendants, the claimant was entitled to a 
 
second opinion from Dr. Chesser.  The amount of his charges appear to 
 
be well within the range of that commonly seen for similar 
 
examinations.  Accordingly, defendants are liable for payment of Dr. 
 
Chesser's fees in the amount of $437.  
 
 
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, 
 
ambulance and hospital services and supplies for all conditions 
 
compensable under the workers' compensation law.  The employer shall 
 

 
 
 
 
 
 
 
 
 
also allow reasonable and necessary transportation expenses incurred 
 
for those services.  The employer has the right to choose the provider 
 
of care, except where the employer has denied liability for the injury. 
 
 
 
 Section 85.27.  Holbert v. Townsend Engineering Co., Thirty-second 
 
Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).
 
Claimant seeks to recover fees totally $173.49 incurred with Dr. 
 
Magnus, the authorized physician.  Since the treatment from the records 
 
appears to be for conditions for which the defendants are liable and 
 
that Dr. Magnus was the authorized treating physician, defendants are 
 
liable for payment of his charges.  The right to chose care carries 
 
with it the obligation to pay for that which is chosen.  Janssen v. 
 
United Parcel Service, file number 1019753 (App. Decn. April 29, 1994)
 
 
 
                          ORDER
 
 
 
IT IS THEREFORE ORDERED that defendants Mount Saint Clair College and 
 
Royal Insurance pay Jacqueline Otto weekly compensation for permanent, 
 
total disability at the rate of eighty-two and 34/100 dollars ($82.34) 
 
per week payable commencing January 2, 1991.  Defendants are entitled 
 
to credit for all weekly compensation benefits previously paid.  The 
 
remaining unpaid, accrued amount shall be paid in a lump sum together 
 
with interest pursuant to section 85.30 computed according to the 
 
American Rule from the date each weekly payment came due until the date 
 
of actual payment.  The weekly compensation payments for permanent 
 
total disability shall be paid pursuant to section 85.34(3) for so long 
 
as the claimant remains totally disabled.
 
 
 
It is further ordered that defendants Mount Saint Clair College and 
 
Royal insurance pay Jacqueline Otto two thousand seven hundred eleven 
 
and 33/100 dollars ($2,711.33) as a penalty under section 86.13 payable 
 
on the date of this decision.
 
 
 
It is further ordered that the Second Injury Fund of Iowa has no 
 
responsibility for payment to Jacqueline Otto.
 
 
 
It is further ordered that defendants Mount Saint Clair College and 
 
Royal Insurance pay claimant's expenses with Robert Magnus, M.D., in 
 
the amount of one hundred seventy-three and 49/100 dollars ($173.49).
 
 
 
It is further ordered that defendants Mount Saint Clair College and 
 
Royal Insurance reimburse claimant the sum of four hundred thirty-seven 
 
dollars ($437) pursuant to section 85.39 of the Code.
 
 
 
It is further ordered that the costs of this action are assessed 
 
against defendants Mount Saint Clair College and Royal Insurance.
 
 
 
Signed and filed this __________ day of December, 1994.
 
                              
 
                              ______________________________
 
                              MICHAEL G. TRIER
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
 
 
Mr. John Westensee
 
Attorney at Law
 
PO Box 4270
 
Rock Island, IL  61204-4270
 
 
 
Mr. James Huber
 
Attorney at Law
 
500 Liberty Bldg
 
418 6th Ave
 
Des Moines, IA  50309-2421
 
 
 
Mr. Robert Wilson
 
Assistant Attorney General
 
Hoover State Office Bldg
 
Des Moines, IA  50319
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                   2206 1804 1806 3203
 
                                   Filed December 21, 1994
 
                                   Michael G. Trier
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
JACQUELINE M OTTO, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 958767
 
MT ST CLAIR COLLEGE,    
 
                                A R B I T R A T I O N
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
ROYAL INSURANCE,   
 
          
 
     Insurance Carrier,  
 
          
 
and       
 
          
 
SECOND INJURY FUND OF IOWA,   
 
          
 
     Defendants.    
 
________________________________________________________________
 
2206 1804 1806 3203
 
Claimant with a preexisting, congenital deformity severely disabling 
 
her right arm and preexisting, degenerative arthritis injured her right 
 
knee when she fell at work.  Medical care was delayed one and one-half 
 
years bringing about additional back, hip and wrist injury from using a 
 
cane.  
 
 
 
Claimant found permanently, totally disabled.  All the liability was 
 
assessed against the employer.  It was found that even if the 
 
preexisting arthritis in the left knee and right arm deformity had not 
 
existed that the claimant would still be permanently and totally 
 
disabled.  No award was made against the Second Injury Fund. 
 
 
 
The disability was not apportioned because the preexisting disability 
 
was already reflected in the claimant's earnings and rate of 
 
compensation.  To further reduce the benefit (the rate was $82 per 
 
week) would be inherently unjust.  Apportionment is an equitable theory 
 
that is not provided by the statute.  The claimant lost 100 percent of 
 
the earning capacity that she held prior to the time of injury.  
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM RICHE,                :
 
                                          :
 
                 Claimant,                :       File No. 958873
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            GRIFFIN PIPE PRODUCTS,        :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant William Riche seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against his self-insured employer, Griffin Pipe Products.  
 
            Claimant suffered a work injury to his low back on August 
 
            23, 1990.
 
            
 
                 This cause came on for hearing in Council Bluffs, Iowa 
 
            on February 2, 1993.  The record consists of joint exhibits 
 
            1-10 and the testimony of claimant, Janet Riche, Darwin 
 
            Kruse and Tom Leedy.
 
            
 
                                      issue
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of his employment 
 
            with Griffin Pipe Products on August 23, 1990, that the 
 
            injury caused both temporary and permanent disability, that 
 
            healing period benefits are no longer in dispute, that the 
 
            commencement date for permanent partial disability benefits 
 
            is January 1, 1991, to the rate of compensation ($346.84 per 
 
            week), that medical benefits are not in dispute and that 
 
            defendant is entitled to credit for benefits paid 
 
            voluntarily prior to hearing.
 
            
 
                 The sole issue presented for resolution is 
 
            determination of the extent of permanent disability.
 
            
 
                                 findings of fact
 
            
 
                 William Riche, 49 years of age at hearing, left school 
 
            to work after completing only the eighth grade.  After brief 
 
            employment with an electronics company and a limestone 
 
            company, claimant worked sixteen years for an upholstery 
 
            business and commenced work with Griffin Pipe Products in 
 
            April 1977.  Griffin Pipe Products manufactures steel water 
 
            pipes.  Because of the nature of the material, many jobs in 
 
            the plant require strenuous physical effort, including heavy 
 
            lifting.  For example, the "ladle" job held by claimant when 
 
            he was injured required lifting 100 pound boxes.
 
            
 
                 Indeed, claimant was injured while lifting and dumping 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            100 pound bags of refractory (apparently, a heat resistant 
 
            nonmetallic ceramic material).  Claimant developed sharp 
 
            pain in the back and right leg with numbness in the great 
 
            toe.
 
            
 
                 Claimant was first seen by Charles Edwards, M.D., who 
 
            referred him to Behrouz Rassekh, M.D., a neurosurgeon.  
 
            Magnetic resonance imaging studies of the lumbar spine 
 
            performed at Dr. Rassekh's order disclosed a posterior disc 
 
            herniation centrally and to the right at L4-5.  As a result, 
 
            Dr. Rassekh performed a hemilaminectomy and removal of large 
 
            extruded disc at that level on August 29, 1990.
 
            
 
                 Claimant, who has shown himself throughout to be very 
 
            well motivated, returned to work in January 1991.  He 
 
            requested and was given a 100 pound weight restriction so 
 
            that he could attempt to keep his old job; unfortunately, he 
 
            found himself unable to physically perform the work.  Dr. 
 
            Rassekh thereupon corrected the lifting restriction to 50 
 
            pounds with further restrictions against repeated bending 
 
            and stooping.  Dr. Rassekh also assigned a ten percent 
 
            impairment rating to the body as a whole.
 
            
 
                 Griffin Pipe Products has successfully accommodated 
 
            claimant's restrictions, although he is unable to work his 
 
            former job.  Claimant is now employed in the labor pool (at 
 
            twenty or thirty cents per hour less in wages) where he 
 
            enjoys excellent seniority, being the number two worker.
 
            
 
                 Claimant still has residual pain in varying degree and 
 
            finds himself tired at the end of the work day.  He has 
 
            continued numbness in the right great toe, suffers some 
 
            sleep disturbance, and has suffered some falls when his leg 
 
            has "gone dead."  He finds prolonged sitting and standing 
 
            difficult and is unable to perform some of the work he 
 
            previously did around the house (e.g., raking or shoveling 
 
            snow).
 
            
 
                 Out of concern that he might be laid off in the future, 
 
            claimant has applied for work at other steel fabricating 
 
            businesses, but without success.  Indeed, personnel manager 
 
            Tom Leedy conceded that Griffin would not hire a new 
 
            employee with claimant's restrictions, and believed this to 
 
            be true throughout the industry.  A new worker must not have 
 
            a weight restriction of less than 100 pounds to be eligible 
 
            for hire.
 
            
 
                 Although claimant complains that he is able to work 
 
            less overtime than was previously the case due to his 
 
            restrictions, payroll records fail to bear out this 
 
            allegation.  In dollar terms, claimant had more overtime in 
 
            1992 than in any previous year.
 
            
 
                 Attesting to claimant's high motivation are these 
 
            observations:  he works essentially all the overtime he can 
 
            get and, despite residual pain, the date of trial was the 
 
            first day he has missed work since January 1991.
 
            
 
                 According to Alfred J. Marchesio, Jr., a certified 
 
            professional counselor employed by Midland Rehabilitation 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Consultants, claimant has lost access to 20-30 percent of 
 
            the jobs which existed prior to his injury.  Mr. Marchesio 
 
            performed a vocational evaluation for claimant according to 
 
            his report dated January 12, 1993.
 
            
 
                                conclusions of law
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant has had very little actual loss of earnings, 
 
            but that is due to the commendable accommodations made by 
 
            Griffin Pipe Products.  But for those accommodations, 
 
            claimant's industrial disability would be very much greater. 
 
            
 
                 Even though there be little loss in actual earnings, it 
 
            is unquestionably the case that claimant's earning capacity 
 
            has been reduced.  For almost all of his adult life he has 
 
            been employed in an upholstery business and in a heavy steel 
 
            pipe manufacturing business.  It is most unlikely that 
 
            claimant could take work again as an upholster due to 
 
            restrictions against bending and stooping.  While Griffin 
 
            Pipe Company has kept claimant employed through 
 
            accommodations, he would not be able to obtain similar work 
 
            with another concern if he were to lose his job with 
 
            defendant.
 
            
 
                 Although claimant is highly motivated, he has a limited 
 
            education and limited work experience.  The 50 pound lifting 
 
            restriction will limit him to sedentary, light and medium 
 
            work.  Restrictions against bending and stooping further 
 
            reduce access to the labor market.
 
            
 
                 Considering then these factors in specific and the 
 
            record otherwise in general, it is held that claimant has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            sustained an industrial disability equivalent to 20 percent 
 
            of the body as a whole, or 100 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability at the stipulated rate 
 
            of three hundred forty-six and 84/100 dollars ($346.84) 
 
            commencing January 1, 1991.
 
            
 
                 Defendant shall have credit for all benefits 
 
            voluntarily paid prior to hearing (fifty (50) weeks of 
 
            permanent partial disability).
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest.
 
            
 
                 Costs of this action are assessed to defendant.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            PO Box 1588
 
            Council Bluffs Iowa 51502
 
            
 
            Mr W Curtis Hewett
 
            Attorney at Law
 
            35 Main Place
 
            PO Box 249
 
            Council Bluffs Iowa 51502
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803
 
                      Filed February 9, 1993
 
                      DAVID R. RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM RICHE, :
 
                      :
 
                 Claimant, :       File No. 958873
 
                      :
 
            vs.       :    A R B I T R A T I O N
 
                      :
 
            GRIFFIN PIPE PRODUCTS,   :       D E C I S I O N
 
                      :
 
                 Employer, :
 
                 Insurance Carrier,  :
 
                 Defendant.     :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Permanent partial disability awarded.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         SANDRA McSORLEY,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 958889
 
         HY VEE FOOD STORES, INC.,       
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL COMPANIES,     
 
                     
 
              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 
 
         April 5, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of August, 1993.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         P.O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Frank T. Harrison
 
         Mr. Matthew Grotnes
 
         Attorneys at Law
 
         2700 Grand Ave., Ste 111
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1402.30
 
                                              Filed August 31, 1993
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
 
 
            SANDRA McSORLEY,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 958889
 
            HY VEE FOOD STORES, INC.,       
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            When claimant's testimony was controverted by the medical 
 
            records and another witness, it is was determined that she 
 
            failed to prove that she sustained an injury which arose out 
 
            of and in the course of employment.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
 
 
LUANNE RAE BERGEN,   
 
 
 
     Claimant, 
 
         
 
vs.                                         File No. 958906
 
         
 
IOWA VETERANS HOME,                      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 April 17, 1995 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 8, 1990.  The record in the proceeding consists of 
 
         
 

 
         
 
 
 
 
 
 
 
the testimony of the claimant, Sheila Lepley, Dianna Tub, 
 
Margaret Button, claimant's exhibit 1 through 12 and 
 
defendants' exhibits A through I.
 
         
 
                  ISSUES
 
         
 
The issues for resolution are:
 
         
 
1.  The extent of claimant's permanent disability and 
 
entitlement to disability benefits, if any;
 
         
 
2.  Whether claimant's claim was filed timely within 
 
the provisions of 85.26 of the Iowa 
 
         
 
Administrative Code - statute of limitations.
 
         
 
                  FINDINGS OF FACT
 
         
 
The undersigned deputy, having heard the testimony and 
 
considered all the evidence finds that:
 
         
 
Claimant is a 39 year old high school graduate.  
 
Claimant began working for the defendant, Iowa Veterans 
 
Home, in Marshalltown, Iowa, in July 1984.  She related her 
 
work duties.
 
         
 
The undersigned believes that before the undersigned 
 
gets into any detail facts there should be discussion 
 
limited to addressing the issue of whether this claim was 
 
timely filed in accordance with 85.26 of the Iowa 
 
Administrative Code.  It is undisputed that the petition was 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
filed February 14, 1994.  Although the injury date alleged 
 
on the petition was August 29, 1990, the hearing report 
 
states August 8, 1990, which is the date agreed to by the 
 
parties.
 
         
 
It is undisputed that the last payment of any benefits 
 
was December 10, 1990, therefore, in a normal situation, 
 
claimant would have to have filed her action within three 
 
years of said date, thereby by December 10, 1993.
 
         
 
Claimant is relying on the application of the discovery 
 
rule.  Claimant cited Kritchard v. Pella Plastics, file 
 
number 1018288, filed April 6, 1994 in which the deputy 
 
industrial commissioner applied the discovery rule.  
 
         
 
Claimant believes this case supports his position.  The 
 
defendants cited the same case and contended the result was 
 
the opposite.  The defendants are correct in that there was 
 
an appeal decision filed August 31, 1994 which reversed the 
 
deputy's ruling and barred claimant's action due to the 
 
running of the statute of limitations.
 
         
 
The appeal decision did not necessarily put to rest the 
 
action herein as such.  It obviously caused a high hurdle 
 
for claimant to jump.
 
         
 
Neither party cited the supreme court case of Whitmer 
 
v. International Paper Co., Etc., 314 N.W.2d 411 (Iowa 
 
1982), in which the supreme court held that the discovery 
 
rule, under which accrual of a cause of action would be 
 
delayed until a person discovered his or her injury or by 
 
exercise a reasonable diligence should have discovered it, 
 
did not apply to the three-year limitation period for a 
 
review reopening in a workers' compensation case.  The 
 
         
 

 
         
 
 
 
 
 
 
 
undersigned believes that this Whitmer case bars claimant 
 
from proceeding regardless of whether the undersigned would 
 
find that claimant did not discover the nature of the 
 
seriousness of her alleged injury until around December 
 
1993, when she contends is the first time she knew the 
 
seriousness of her injury, after she had an MRI.  An EMG she 
 
had in 1990 did not show anything.  She felt she only had a 
 
back strain and not what she later found out to have been a 
 
serious back injury.
 
         
 
The undersigned therefore, finds it unnecessary to go 
 
through any more of the facts in this case or set out any 
 
further evidence in light of the clear ruling of the supreme 
 
court in the Whitmer case.  Claimant should have brought 
 
her action within three years of December 10, 1990.
 
         
 
In light of the above ruling the undersigned finds all 
 
the other issues moot.  The undersigned finds that claimant 
 
takes nothing in these proceedings, as she did not timely 
 
file her action.
 
         
 
                  CONCLUSIONS OF LAW
 
         
 
"Discovery rule," under which accrual of a 
 
cause of action would be delayed until a person 
 
discovered his or her injury or by exercise a 
 
reasonable diligence should have discovered it, 
 
did not apply to the three-year limitation period 
 
for a review reopening in a workers' compensation 
 
case.
 
         
 
An original proceeding for benefits must be commenced 
 
within two years from the date of the occurrence of the 
 
         
 

 
         
 
 
 
 
 
 
 
injury for which benefits are 
 
claimed or within three years from the date of the last 
 
payment of weekly compensation benefits if weekly 
 
compensation benefits have been paid under section 86.13.  
 
Section 85.26(1).  A proceeding in review-reopening must be 
 
commenced within three years from the date of the last 
 
payment of weekly benefits under either an award for 
 
payments or an agreement for settlement.  Section 85.26(2).  
 
         
 
The "discovery rule" may extend the time for filing a claim 
 
where weekly benefits have not yet been paid.  The rule does 
 
not extend the time for filing a claim where benefits have 
 
been paid.  Orr v. Lewis Cent. School Dist., 298 N.W.2d 
 
256 (Iowa 1980).  Under the rule, the time during which a 
 
proceeding may be commenced does not begin to run until the 
 
claimant, as a reasonable person, should recognize the 
 
nature, seriousness and probable compensable character of 
 
the condition.  The reasonableness of claimant's conduct is 
 
to be judged in light of the claimant's education and 
 
intelligence.  Claimant must know enough about the condition 
 
to realize that it is both serious and work connected.  
 
Orr, 298 N.W.2d at 261; Robinson v. Dep't of Transp., 296 
 
N.W.2d 809 (Iowa 1980).  Whitmer v. International Paper 
 
Co., Etc., 314 N.W.2d 411 (Iowa 1982)
 
         
 
Failure to timely commence an action under the 
 
limitations statute is an affirmative defense which 
 
defendants must prove by a preponderance of the evidence.  
 
DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 
 
(1940).
 
         
 
It is further concluded that claimant did not file her 
 
action timely in violation of 85.26.  It is further 
 
concluded that claimant's last payment of any benefits was 
 
         
 

 
         
 
 
 
 
 
 
 
December 10, 1990, and her action had to be filed within 
 
three years thereafter, regardless of the application of the 
 
discovery rule.
 
         
 
                  ORDER
 
         
 
THEREFORE IT IS ORDERED:
 
         
 
That claimant takes nothing from these proceedings.
 
         
 
That shall pay the costs of this action.
 
         
 
Signed and filed this _____ day of May, 1995.
 
         
 
                  
 
         
 
                        ______________________________
 
                        BERNARD J. O'MALLEY
 
                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                  
 
         
 
                  
 
Copies to:
 
         
 
Gail E. Boliver
 
Attorney at Law
 
8 East Southridge Road
 
Marshalltown, Iowa 50158
 
         
 
Ms. Joanne Moeller
 
Assistant Attorney General
 
Department of Justice--Tort Claims
 
Hoover State Office Building
 
Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                             2402
 
                                             Filed May 16, 1995
 
                                             BERNARD J. O'MALLEY
 
         
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
 
 
LUANNE RAE BERGEN,   
 
         
 
     Claimant, 
 
         
 
vs.                                      File No. 958906
 
         
 
IOWA VETERANS HOME,                   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.    
 
-----------------------------------------------------------------      
 
                                                           
 
2402
 
         
 
Found claimant did not timely file her action.  
 
         
 
Claimant raised the discovery rule.  Claimant did not file 
 
         
 

 
         
 
 
 
 
 
 
 
her action until three and one-half years after her injury 
 
and three years and two months after the last payment of 
 
benefits.  Claimant contends she did not know the 
 
seriousness of her injury until December 1993 after she had 
 
an MRI.  The deputy found the discovery rule does not apply 
 
and cited Whitmer v. International Paper Co., Etc., 314 
 
N.W.2d 411 (Iowa 1982).
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed May 10, 1995
 
                                            Larry P. Walshire
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ééééééééééééééééééééééééééééééééééééééééééééééééééééééééééé-
 
                                        
 
         ROBERT J. HOLBROOK,                
 
                                        
 
              Claimant,                     
 
                                        
 
         vs.                                 
 
                                           File No. 959148
 
         ALLSTATE INDUSTRIAL 
 
         CONTRACTORS,                  A R B I T R A T I O N
 
          
 
              Employer,                    D E C I S I O N
 
         
 
         and                                 
 
                                        
 
         CIGNA PROPERTY AND CASUALTY CO.,   
 
                                        
 
              Insurance Carrier,                 
 
              Defendants.                        
 
          
 
          ééééééééééééééééééééééééééééééééééééééééééééééééééééééééééé-
 
         5-1803
 
         Nonprecedential - extent of disability case.