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.