BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MICHAEL CONRAD,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 962663
 
            ENVIRONMENTAL MANAGEMENT   
 
            SERVICES,   
 
                                                      A P P E A L
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                        
 
            AETNA INSURANCE,      
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                    ISSUES
 
            
 
            The issues on appeal are:  Whether the compensation rate 
 
            awarded was incorrectly calculated; whether there was 
 
            sufficient evidence that claimant suffered a back injury or 
 
            right leg impairment on October 22, 1990; whether the Second 
 
            Injury Fund should have been required to pay a portion of 
 
            any permanency award; and whether there was sufficient 
 
            evidence to award total and permanent disability.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed May 14, 1993 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 Claimant is 35 years old and went through the ninth 
 
            grade.  He then entered the navy in 1974 through 1976.  
 
            Claimant then related his work history from 1976 up to the 
 
            date he began working for defendant employer on October 22, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1990.  This work history included several jobs involving 
 
            manual and heavy duty work such as digging ditches, laying 
 
            pipe, general labor work, using a jackhammer, pouring 
 
            concrete, carrying forms, tearing off roofing, carrying 
 
            shingles, general cleanup, constructing roads, laying road 
 
            forms, digging footings, using wheelbarrow to haul sand, 
 
            carrying rods, demolition work, knocking out walls, working 
 
            with carpenters, pick axing rock, installing television 
 
            cable, working in crawl spaces, and doing general cable 
 
            installation.
 
            
 
                 Claimant said that between 1976 and 1983, his various 
 
            jobs paid him between $13 and $16 per hour and he would be 
 
            lifting 15 to 150 pounds.  Claimant said he had no problem 
 
            up to December 1983 lifting these weights except on one 
 
            occasion in 1975 while in the service he injured his right 
 
            knee and was off one day and this injury resolved itself.
 
            
 
                 Claimant testified that in October 1984, while working 
 
            for Cox Cable, he injured his right knee while carrying a 
 
            ladder to the telephone pole.  He slipped and the ladder 
 
            fell across his knee.  Claimant had right knee surgery on 
 
            April 19, 1985.
 
            
 
                 Claimant related that he had physical therapy with 
 
            William R. Irey, M.D., and that he stopped treatment in 
 
            1987.  He indicated the knee wasn't bad or good and that it 
 
            was still aggravating him.  He acknowledged that there was a 
 
            39 percent permanent impairment rating and he was released 
 
            to sedentary-type work.  Claimant said his left knee was not 
 
            hurt but he did have some back strain that worked itself 
 
            out.  This strain was caused when he fell and hit his 
 
            tailbone.  There had been no rating to his back or left 
 
            knee.
 
            
 
                 After his release by Dr. Irey, claimant returned to Cox 
 
            Cable but indicated the situation was not good as the 
 
            employer knew claimant's status and claimant was working 
 
            inside and claimant wanted to work outside.  He eventually 
 
            took the dispatcher job but still wanted to work outside and 
 
            there was controversy between him and the boss.  Claimant 
 
            was fired in 1988 when he returned one hour late from 
 
            vacation.  Claimant said he liked the company and did 
 
            everything they wanted and bent over backwards to help them.
 
            
 
                 Claimant said at that time, because of his right leg, 
 
            he was restricted from climbing stairs, bending or squatting 
 
            but had no problems standing and he was to do no heavy work.
 
            
 
                 Claimant then testified that around May 1988, when he 
 
            was off work after being fired, he went into a several month 
 
            conditioning program working out lifting weights and getting 
 
            himself back into a good healthy condition.  He indicated 
 
            being off work and being injured was also affecting his 
 
            marriage.  Claimant indicated that he was back in shape 95 
 
            percent and felt good and took a job with FDL as a meat 
 
            cutter, trimming loins, hanging hogs and cleaning up.  On 
 
            February 12, 1989, after having worked for two weeks for 
 
            FDL, he was lifting 50 pound boxes and 50 to 75 pound hogs.  
 
            Claimant said that on February 12, 1989, he was walking 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            across a floor that had been sprayed when he slipped and 
 
            hurt his right knee again.  Claimant then had surgery again 
 
            on his right knee in March of 1989.
 
            
 
                 Claimant said he was released for work again to light 
 
            duty, sedentary, no stairs, etc., similar to the 
 
            restrictions he had previously.  Claimant then returned to 
 
            work at FDL and his jobs were outside his restrictions.  He 
 
            tried to perform them but couldn't so he went to the doctor 
 
            who then put him on a lighter duty job in the locker room.  
 
            He said this was a non-posted job and the union told him it 
 
            wasn't a contract position but a man-made job so claimant 
 
            was asked to resign and did in 1990.
 
            
 
                 Claimant said when he left FDL he was not having any 
 
            trouble with his left leg except he had atrophy from 
 
            favoring his right leg and he was limping on his right leg.  
 
            He said he had no basic back trouble when he left FDL.
 
            
 
                 Claimant indicated his wife was on him again because he 
 
            couldn't get a job and tried to get help from vocational 
 
            rehabilitation and begged people for a job.  He said he 
 
            again did voluntary exercises to get into shape and took a 
 
            one week's course on asbestos removal.
 
            
 
                 In April or May of 1990, claimant went to work as an 
 
            asbestos remover which involved hauling bags out weighing 
 
            about 75 pounds after there had been some demolition done.  
 
            This job paid $6 per hour.  He then went to Washington, 
 
            D.C., and worked on an asbestos removal job which paid $16 
 
            an hour and $32 overtime.  This involved removing tile from 
 
            the floor and carrying containers weighing 50 to 75 pounds.  
 
            He indicated he got along pretty good without any real pain.  
 
            He said the contract ended so that was the end of the job.
 
            
 
                 Claimant then began working for defendant employer at 
 
            $11 per hour.  He said he was told by his foreman that he 
 
            would be working 12 hours per day six days per week.  
 
            Claimant said on the day of his injury, which was his first 
 
            day of work, he was to take two other employees and go up 
 
            the scaffold to see what asbestos had to be removed.  
 
            Claimant indicted he had to climb up the ladder.  It was 
 
            very dark and no lights.  Claimant then started down the 
 
            scaffolding and while climbing down the little narrow 
 
            ladder, claimant's right leg fell through inside of the 
 
            ladder rung and the left leg went through the outside of the 
 
            ladder rung and claimant's legs were wrenched in the rung 
 
            and claimant hit the ladder as he went down.  Claimant 
 
            estimated he fell approximately six feet.  Claimant's knee 
 
            hit the bar of the scaffold.  Claimant fell backwards and 
 
            grabbed the bar.  He indicated he had a tool belt on.
 
            
 
                 Claimant said he went to a medical specialist the next 
 
            day and after that examination he indicted the doctor asked 
 
            him if he could have surgery that day.  Claimant said he 
 
            wanted a second opinion and went to another doctor who 
 
            confirmed that claimant should have surgery.  Claimant said 
 
            that after the fall he had tremendous headaches for quite 
 
            some time and felt like he had wrenched his lower back.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant said his injury occurred approximately four 
 
            hours after he started the job and that he was paid for a 
 
            full day of work, twelve hours, even though he didn't work 
 
            the rest of the day.  Claimant said that he injured both 
 
            knees and his back on October 22, 1990, and told the 
 
            insurance carrier (Jt. Ex. 2, pp. 3 and 4).  He indicated he 
 
            couldn't tell which leg was worse.  Claimant acknowledged 
 
            that he did not tell Jay Ginther, M.D., anything regarding 
 
            his back for a period of time but after the first visit he 
 
            did tell him and he said the doctor told him he had a 
 
            possible lumbar strain and that he should sit in the tub.  
 
            He said his back gradually kept getting worse.  Claimant 
 
            then was referred to joint exhibit 7, page 2, in which the 
 
            doctor indicated in October 1990 claimant had complaints of 
 
            bilateral knee pain and low back pain.  Claimant emphasized 
 
            that before he fell on October 22,1990, he had not had any 
 
            back pain for at least a year prior and never saw a doctor 
 
            for back pain before and that he hadn't had any left leg 
 
            problems but just soreness due to favoring his right leg.
 
            
 
                 Claimant was asked concerning the notation of 
 
            defendants that he was a temporary part-time worker.  
 
            Claimant emphasized that he understood he was hired full 
 
            time and was never told that it was a temporary job.
 
            
 
                 Claimant indicated that defendant insurance carrier 
 
            hired a vocational rehabilitation person to get involved 
 
            with claimant's case but claimant indicated the consultant, 
 
            Christopher Yep, never assisted in looking for work or gave 
 
            any career guidance and had one conference and wrote one 
 
            report.  Claimant said he met with Robert Bubbers, an 
 
            Illinois Vocational Rehabilitation consultant who issued a 
 
            report represented by joint exhibit 6.  Claimant said he saw 
 
            Mr. Bubbers 25 to 30 times and was told by Mr. Bubbers that 
 
            there was nothing there for claimant to do.  Claimant said 
 
            he made 40 or 50 phone calls and went to Job Service and to 
 
            JTPA looking for work or training since his October 1990 
 
            injury.
 
            
 
                 Claimant said he has seen a psychiatrist, Dr. William 
 
            Nissen, twice and has received some psychological 
 
            counseling.  He indicted there are problems in his marriage 
 
            because he has had no income or job.  Claimant said he has 
 
            applied for 20 or 30 jobs since the October injury and 
 
            before February 1992 and since February 1992 has sought 
 
            approximately 73 more jobs or interviews.  Claimant said he 
 
            never got any interviews.  Claimant said he presently uses 
 
            his upper body okay but not his lower body.  He indicated he 
 
            holds on to a table at times when he is sitting and doesn't 
 
            sleep well.  Claimant indicated that after his first injury 
 
            and his 39 percent impairment, he could still do things but 
 
            now he cannot move around well as he could trip over a cord 
 
            and his knees give out.
 
            
 
                 Claimant said he disagrees with Dr. Irey if Dr. Irey 
 
            indicates there is no difference as to what claimant can do 
 
            now between the 1986 versus the current situation.  Claimant 
 
            emphasized he can do less now as to job opportunities.
 
            
 
                 On cross-examination, claimant was questioned as to the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            records showing he couldn't pass the functional capacity 
 
            validity portion of the test in January 1992 nor the 
 
            workers' compensation test validity portion in October 1989.  
 
            Claimant was further questioned as to the validity score 
 
            which the records shows was less than maximal effort.
 
            
 
                 Claimant acknowledged he is receiving social security 
 
            benefits which were recently granted.  He also acknowledged 
 
            that he received a Cox Cable settlement for a workers' 
 
            compensation injury and an FDL Foods workers' compensation 
 
            settlement.
 
            
 
                 Claimant said he is taking classes now and said he 
 
            began searching for work after his release by Dr. Irey in 
 
            1992 and has made 100 job contacts.  He indicated he had 
 
            made only four or five contacts before November 1992.
 
            
 
                 Dr. Irey, an orthopedic surgeon, testified through his 
 
            deposition on April 6, 1993, represented by joint exhibit 
 
            14.  The doctor testified that his first contact with 
 
            claimant was October 31, 1984, and had his record from 
 
            another doctor from October 23, 1984.  This doctor visit 
 
            with claimant was in respect to claimant having injured his 
 
            right knee on October 23, 1984, and had injured or was 
 
            having problem with that knee in the navy approximately ten 
 
            years earlier.  The doctor explained his diagnosis and 
 
            eventually recommended claimant have an arthroscopic exam on 
 
            his knee.  That exam was done on February 7, 1985, and the 
 
            doctor eventually did surgery on claimant's right knee.  The 
 
            doctor cannot tell how much of claimant's knee problems were 
 
            due to the October 1984 injury and how much to earlier 
 
            injuries.  The doctor described his continuing treatment of 
 
            claimant and released him to light duty on April 16, 1985.  
 
            He indicated claimant was progressing less than average in 
 
            his ability to use his leg.  The doctor then referred the 
 
            claimant to a Dr. Whitmore for a second opinion and claimant 
 
            eventually had a cast put on the knee and eventual physical 
 
            therapy but this did not seem to help so claimant was 
 
            referred to the University of Iowa for another opinion.  
 
            Further physical therapy was recommended by the University 
 
            of Iowa in addition to knee manipulation under a general 
 
            anesthetic.  Claimant rejected the general manipulation of 
 
            the knee as he earlier had rejected a cortisone treatment to 
 
            the knee.
 
            
 
                 After Dr. Irey saw claimant again on November 19, 1985, 
 
            after the claimant's University of Iowa visit, the doctor 
 
            offered claimant a cortisone injection again which claimant 
 
            declined and physical therapy was recommended to continue.
 
            
 
                 In January of 1986, it was recommended that claimant 
 
            have an arthroscopic examination and remove the scar tissue 
 
            which is considered an alternative way of performing a knee 
 
            manipulation and claimant refused.  Claimant became 
 
            increasingly emotionally depressed around the end of January 
 
            1986 and was having difficulty making decisions and was 
 
            expressing anxiety about his work future and the future for 
 
            his knee (Jt. Ex. 14, pp. 15 and 16).  Dr. Irey eventually 
 
            referred claimant to a psychiatrist.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 When the doctor saw claimant again on April 23, 1986, 
 
            claimant had very little flexion at that time, only about 30 
 
            degrees.  The doctor further explained what he observed in 
 
            his examination.
 
            
 
                 When the doctor saw claimant in May of 1986, claimant 
 
            also started to have symptoms in his left knee similar to 
 
            those in his right and he wasn't sure what would have caused 
 
            it but presumed that they may be coming from his abnormal 
 
            gait on his right leg and walking in an unusual way on his 
 
            left as well but that was only his guess (Jt. Ex. 14, p. 
 
            19).
 
            
 
                 On July 22, 1986, the doctor did an impairment rating 
 
            on claimant's right leg under the AMA Guides to the 
 
            Evaluation of Permanent Impairment and opined claimant had a 
 
            39 percent impairment of that extremity.
 
            
 
                 The doctor said claimant saw him on April 16, 1987 due 
 
            to claimant reinjuring his right knee on April 1, 1987 (Jt. 
 
            Ex. 14, p. 21).  When claimant returned for his next visit 
 
            on April 30, 1987, he was complaining of left lower back 
 
            pain radiating down into his left leg and his right knee had 
 
            given away on him on one or two occasions so he was having 
 
            pain in both legs and his lower back at that point.  At that 
 
            time, the doctor could not determine any cause of claimant's 
 
            back problems.  Claimant was prescribed a knee brace in May 
 
            of 1987 and a later visit in May he asked to see a 
 
            psychiatrist, a Dr. Nissen, again.  At the end of May 1987, 
 
            claimant was taken off work and on June 23, 1987, claimant's 
 
            condition had not changed at that time or had it changed on 
 
            July 21, 1987, from the way it had been before the April 1, 
 
            1987 injury (Jt. Ex. 14, p. 25).
 
            
 
                 The doctor then said that on August 13, 1987, he 
 
            received a phone message from the claimant's wife who 
 
            indicated they didn't want any information given to the 
 
            compensation carrier or the company without their 
 
            permission.  On August 12, 1987, the doctor did receive a 
 
            call from Cox Cable requesting to know if claimant was there 
 
            on August 10, 1987.  Claimant wasn't there on that date but 
 
            there was a visit on August 13, 1987.  The doctor said that 
 
            there was no need for claimant to miss work for weeks at a 
 
            time when his knee flares up.
 
            
 
                 Dr. Irey did not see claimant anymore after the 
 
            September 1, 1987 visit until August 18, 1992.  The 
 
            examination on that date showed claimant had surgery on both 
 
            knees, swelling, tenderness on the front portion of both 
 
            knees, the ligaments of the knees were stable, and claimant 
 
            had a crunching sound or crepitus with flexion and extension 
 
            of both knees.  He examined claimant's back and claimant had 
 
            about half of what one could normally do on back extension 
 
            or straightening and also bending to the side (Jt. Ex. 14, 
 
            p. 29).  The doctor opined that he thought claimant's right 
 
            knee pain was due to the same problem he had back in 1986 
 
            and 1987 and did not know for sure the exact cause of 
 
            claimant's back pain nor did he have an opinion as to how 
 
            claimant's left knee came to be in the condition it was (Jt. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Ex. 14, pp. 29 and 30).
 
            
 
                 On October 9, 1992, the doctor was recommending 
 
            claimant should have a job change and that he should assign 
 
            permanent restrictions and that a physical therapist should 
 
            review a home program of back and leg exercises.
 
            
 
                 The doctor said there was no way he could tell what 
 
            changes there might have been in claimant's knees and back 
 
            after his October 1990 injury and his condition October 9, 
 
            1992 (Jt. Ex. 14, p. 33).
 
            
 
                 Dr. Irey then did an evaluation of claimant on his next 
 
            visit on November 27, 1992, and based on claimant's 
 
            limitation of motion, he opined that claimant had a 37 
 
            percent impairment of the right knee and a 30 percent of the 
 
            left knee and a 16 percent permanent impairment of 
 
            claimant's back (Jt. Ex. 14, pp. 34-36).  The doctor further 
 
            stated that in terms of what the current evaluation is, he 
 
            was not able to determine when the particular current 
 
            impairments came to be.  In other words, he did not know at 
 
            that time when claimant's knee became 30 percent impaired or 
 
            as a result of what injury or injuries became 30 percent 
 
            impaired.  The doctor agreed that at the time he did the 39 
 
            percent impairment of claimant's knee from his April 19, 
 
            1985 injury, he had not done a rating on claimant's left 
 
            knee.  He, likewise, cannot tell when the 16 percent 
 
            impairment of the whole person regarding claimant's back 
 
            actually  became impaired.  The doctor therefore emphasized 
 
            that there was no way to distinguish what happened after 
 
            October 1990 and how much of it was already there before 
 
            with regard to the claimant's left knee and the back.  
 
            Regarding the right knee, the doctor said the impairment 
 
            rating at that time in November 1992 was no worse than it 
 
            was when he had done the impairment some years earlier (Jt. 
 
            Ex. 14, pp. 34-37).  
 
            
 
                 The doctor was asked whether claimant had a permanent 
 
            impairment based on the tenderness in claimant's low back on 
 
            April 30, 1987, and the doctor indicated that it is his 
 
            strong suspicion and based on his limited notes that 
 
            claimant would not have had any measurable permanent partial 
 
            physical impairment at that time and, in fact, he had not 
 
            placed any impairment rating on claimant's back in 1987 or 
 
            anytime before that.
 
            
 
                 The doctor testified that when he examined claimant's 
 
            left leg on August 1, 1986, he did not think claimant would 
 
            ever require surgery for his left leg nor would claimant 
 
            have qualified for permanent impairment evaluation with 
 
            respect to his left leg and that any permanent impairment 
 
            rating based on the limited information he had would be 
 
            zero.  The doctor said claimant's left knee situation 
 
            changed substantially from 1986 and 1987 to 1992 and that 
 
            claimant's motion is limited to 65 degree flexion (Jt. Ex. 
 
            14, p. 42-43).  The doctor then testified that in comparing 
 
            the left leg with the restrictions claimant had in 1986 and 
 
            1987 and now in 1992, he did not think there was any 
 
            significant change in his work restrictions.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 The doctor was then asked again about claimant's right 
 
            knee and the chondromalacia which the doctor indicated is a 
 
            degeneration of the cartilage in the knee.  The doctor 
 
            indicated it could be caused by a congenital process or an 
 
            injury or a cumulative process, but the doctor indicated 
 
            that most usually it is caused by a congenital process or 
 
            injury.  The doctor did not know the cause claimant's 
 
            chondromalacia to his right knee.  The doctor said that as 
 
            to claimant's right knee, it is possible that he was having 
 
            trouble with chondromalacia in his left knee but he 
 
            indicated he did not think he would go that far to say that 
 
            he had it.  He also acknowledged that in August of 1986, 
 
            claimant was having some problems with his left leg as well 
 
            as his right and that he was starting to have symptoms in 
 
            his left knee similar to those he had in his right.  The 
 
            doctor did not know what was causing claimant's left leg 
 
            problems.
 
            
 
                 The doctor was asked what he meant when he indicated in 
 
            his notes of June 23, 1987, in which he indicated Michael 
 
            remained somewhat difficult to evaluate.  The doctor 
 
            indicated that by that he meant claimant's complaints of 
 
            pain were in excess of the objective findings that were 
 
            there and claimant was very difficult to evaluate and to 
 
            know where he really was in his treatment and recovery (Jt. 
 
            14, pp. 59-60).
 
            
 
                 In summary, at the end of Dr. Irey's testimony, he 
 
            indicated that he could not tell what of claimant's current 
 
            condition is attributable to the state he was already in or 
 
            had back in 1987, what was due to his February 1989 injury, 
 
            and what was due to his October 22, 1990 injury, and what 
 
            was due to some other cause altogether.  He also emphasized 
 
            that there was no significant difference in the kind of work 
 
            claimant was able to do now compared to what he was able to 
 
            do in 1987 and that he would never have recommended that 
 
            claimant accept a job that would require him to go up and 
 
            down ladders based on the doctor's examination in 1987 (Jt. 
 
            Ex. 14, pp. 67-68).
 
            
 
                 Joint exhibit 1, pages 1 through 27, is the records 
 
            from Jay P. Ginther, M.D.  The notes reflect that on 
 
            February 7, 1989, claimant slipped on some grease at work 
 
            while carrying some hot dogs and claimant had resulting 
 
            problems with his right knee.  Claimant had surgery in March 
 
            of 1989.  The doctor's notes show the care and service he 
 
            rendered plus the therapy and exercises prescribed and the 
 
            status of claimant's condition during the several visits.  
 
            On November 7, 1989, the doctor's notes refer to a full 
 
            capacity evaluation center report being sent back to him and 
 
            the doctor referred to certain limitations that claimant 
 
            should operate under.
 
            
 
                 The note shows that on October 31, 1990, the claimant 
 
            was in to see the doctor for a new injury and indicated that 
 
            claimant had been his patient for an extended period of time 
 
            throughout virtually the entirety of 1989.  The doctor's 
 
            notes reflect that claimant had had arthroscopic 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            chondroplasty in 1989 on his right knee and that he 
 
            recovered enough that he was able to get back to work and 
 
            had not seen him for almost a year because claimant has been 
 
            able to do those things he wished to do (Jt. Ex. 1, p. 5).  
 
            Claimant was seeing Dr. Ginther for a second opinion and it 
 
            was Dr. Ginther who had performed claimant's arthroscopic 
 
            chondroplasty in March of 1989 on the right knee.
 
            
 
                 The doctor's November 9, 1990 notes reflect that 
 
            claimant is having left knee problems as well in relating 
 
            this to the October 22, 1990 incident at defendant employer 
 
            in which claimant slipped on the ladder.
 
            
 
                 Claimant was scheduled for a right knee arthroscopy for 
 
            January 10, 1991, but several things occurred which 
 
            prevented him from having the surgery.  In the meantime, 
 
            claimant's left knee was beginning to bother him more than 
 
            the right.  The doctor's note reflects on page 13 of Exhibit 
 
            1 that claimant's right knee fully recovered from the 
 
            ligamentous strain that he had initially and has good 
 
            strength and free of crepitation.  The left knee continues 
 
            to give claimant trouble.  It was therefore decided that 
 
            there should be surgery on the left knee.  Around April 22, 
 
            1991, claimant had surgery on his left knee (Jt. Ex. 1, p. 
 
            22).  Claimant was still getting treatment and trying to be 
 
            rehabilitated and as of March 4, 1992, claimant was 
 
            continuing to have problems with his knees and there was 
 
            crepitation on the left but was not very prominent on the 
 
            right.
 
            
 
                 On June 3, 1992, Dr. Ginther wrote a report that 
 
            indicated claimant had reached maximum medical improvement 
 
            and indicated the AMA Guides to the Evaluation of Permanent 
 
            Impairment suggest that an impairment between 5 and 10 
 
            percent for each leg would be appropriate.  He indicated 
 
            claimant was continuing in physical therapy.  He said the 
 
            only option left was to continue to have claimant in 
 
            physical therapy on the very remote chance that he will 
 
            eventually be able to go back to his old occupation (Jt. Ex. 
 
            1, p. 25).
 
            
 
                 On the same date, he wrote a letter to claimant's 
 
            attorney indicating it was very difficult to assign a 
 
            permanent impairment as to claimant's back other than 
 
            claimant's complaint of pain.  The doctor said he has been 
 
            unable to document any objective difficulty with claimant's 
 
            back.  He also said it was difficult to establish a causal 
 
            connection between an injury of a year and a half ago and 
 
            his current back situation.  The doctor indicated the same 
 
            difficulty concerning left knee and indicated there is very 
 
            little objective evidence to support the place of pain that 
 
            the patient continues to have.  He said he didn't find the 
 
            chondromalacia.  He indicated the swelling and crepitation 
 
            have largely disappeared but the pain persists.  The doctor 
 
            said the same situation pertains to the right knee and that 
 
            the objective findings of swelling and crepitation have 
 
            largely resolved.  He indicated a permanent restriction 
 
            should be placed on claimant from stooping, climbing, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            squatting and repetitive heavy lifting.
 
            
 
                 The doctor further went on concerning claimant's 
 
            employability and said that claimant has expressed an 
 
            interest in having a rehabilitation counselor find something 
 
            for him and to train him but that in today's job market 
 
            there is probably not much employment for someone who does 
 
            not have any internal ambition to find an area of training 
 
            or education and pursuing a job.  He also indicated that it 
 
            will prove difficult to assign specific numbers to 
 
            claimant's functional impairment unless he gets a testing 
 
            done which comes out with better performance on the validity 
 
            criteria.
 
            
 
                 On June 19, 1992, the doctor wrote the defendant 
 
            insurance company indicating that he felt the possibility 
 
            was remote that claimant could eventually return to his old 
 
            occupation but he understood they were going to attempt to 
 
            do the same and, if not, there should be a formal work 
 
            capacity evaluation report from physical therapy and set 
 
            things up for retraining of claimant in a field of work that 
 
            falls within that work capacity.
 
            
 
                 *****
 
            
 
                 Pages 13 and 14 of joint exhibit 3 reflect that on 
 
            November 4, 1985, claimant, at 28 years of age, was at the 
 
            University Hospital for evaluation of a right knee pain and 
 
            stiffness and that claimant had a long history of knee pain 
 
            which was exasperated one year ago when claimant was working 
 
            and slipped and fell causing hyperextension of his right 
 
            knee.
 
            
 
                 Joint exhibit 4 is the records from the Samaritan 
 
            Hospital encompassing 50 pages.  Page 2 of this exhibit 
 
            reflects in the history and physical examination that 
 
            claimant injured both knees in October of 1990 and that the 
 
            right knee's strain appeared to be more of a problem but 
 
            that claimant is having the same problem in both knees as to 
 
            pain, catching, giving away and locking.  Joint exhibit 4, 
 
            page 21, is a report of the April 22, 1991 arthroscopy of 
 
            claimant's left knee.
 
            
 
                 Joint exhibit 5, page 3, is a new hire information 
 
            record from claimant's personnel file which indicted 
 
            claimant started on October 22, 1990 as a temporary 
 
            full-time being paid $11 per hour.  Page 20 of this exhibit 
 
            is a time sheet which reflects the one day that claimant 
 
            worked.  From the evidence, it appears that claimant did not 
 
            actually work physically more than four hours and it 
 
            confirms the fact that, as claimant testified, he was paid 
 
            as if he worked the full day.  This exhibit shows claimant 
 
            worked 12 hours and got paid for 12 hours.
 
            
 
                 Page 22 of said exhibit is a copy of the work injury 
 
            report in which the employer set out that claimant normally 
 
            worked 40 hours a week.  It appears the inference would be 
 
            that claimant worked five days a week eight hours a day for 
 
            the 40 hours.  This would be inconsistent with claimant's 
 
            testimony which was not disputed by any witness of 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            defendants that claimant was working 12 hours a day.  The 
 
            personnel records of the claimant, as indicated earlier, 
 
            shows that he was paid for the only day he worked for 12 
 
            hours which would indicate that if claimant worked 40 hours 
 
            a week, he would be working a little over three days a week 
 
            and claimant testified he was hired to work six days a week.  
 
            It would seem logical regarding the project that claimant 
 
            was working on as reflected on page 21 of the exhibit that 
 
            he would be removing the asbestos for more than 
 
            approximately three days a week.
 
            
 
                 Joint exhibit 6 is the records of Robert Bubbers, a 
 
            rehabilitation counselor.  On April 1, 1992, he indicated 
 
            that based on claimant's mobility, pain tolerance and 
 
            emotional stress, he didn't feel that claimant has the 
 
            capability of being gainfully employed at this time.  On 
 
            March 22, 1993, Mr. Bubbers again indicated that the 
 
            claimant does not have the capability to handle competitive 
 
            employment at this time and that nothing has changed his 
 
            mind since he wrote the prior letter.  Mr. Bubbers noted on 
 
            page 1 of said exhibit that there was at least 25 contacts 
 
            with the claimant from January 9, 1991 through March 22, 
 
            1993.
 
            
 
                 Joint exhibit 7 is a report from Robert J. Chesser, 
 
            M.D., who evaluated claimant who complained of bilateral 
 
            knee pain and low back pain.  This October 9, 1992 report 
 
            reflects Dr. Chesser's opinion that there is a 29 percent 
 
            impairment due to loss of range and an additional 10 percent 
 
            for chondromalacia, thereby, resulting in the 36 percent 
 
            permanent impairment to the right knee (Jt. Ex. 7, p. 3).  
 
            The doctor opines a 10 percent impairment due to claimant's 
 
            chondromalacia in the left knee and 28 percent due to loss 
 
            in range of motion resulting in a total of 35 percent 
 
            impairment to claimant's lower extremity.  The doctor felt 
 
            the injury of October 1990 would have aggravated a 
 
            preexisting condition relating back to the 1984 injury to 
 
            the right knee.  As to the left knee, the doctor said it was 
 
            difficult to say whether this actually was caused by the 
 
            fall on the scaffolding as he did have some knee pain prior 
 
            to this even though it was noted to be rather mild compared 
 
            to the present status.  The doctor said that if there was a 
 
            preexisting situation, he felt the fall would have 
 
            significantly contributed to claimant developing increased 
 
            knee pain and an increase in the chondromalacia 
 
            necessitating the arthroscopic procedure.  The doctor 
 
            further opined that based on claimant's condition as of the 
 
            time of the report, claimant would need a job which would 
 
            allow him to sit for 45 to 60 minutes and alternate 
 
            positions as needed so that he could stand for short 
 
            periods.  He would not be able to do any climbing, squatting 
 
            or kneeling.  The doctor felt there would be little to offer 
 
            claimant in regard to viable employment.
 
            
 
                 Joint exhibit 11 is a vocational assessment by 
 
            Christopher Yep, M.S., C.R.C.  On page 1, he sets his goal 
 
            as job goal identification based on current skills and job 
 
            availability followed by job placement.  It is obvious this 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            consultant did not get claimant a job nor does it look like 
 
            he explored options for claimant to return to work as far as 
 
            anything being successful or any evidence of exactly what 
 
            those particular job options are from the reality 
 
            standpoint.  Mr. Yep did indicate that claimant, having been 
 
            in the construction trade most of his life, does not have a 
 
            lot of transferable skills and may need to look at a 
 
            position that is either entry level or one that will offer 
 
            some form of on-the-job training.  The report does reflect 
 
            that the claimant wants to return to work.
 
            
 
                 Joint exhibit 13 is the records of Anthony D'Angelo, 
 
            D.O., who treated claimant in the latter part of 1986 and 
 
            around April 2, 1987, for his right knee complaints.  In his 
 
            records, he indicates on April 2, 1987, that claimant would 
 
            continue to have difficulty with his right knee but that 
 
            claimant can remain working and was to undergo physical 
 
            therapy to restore motion in his knee.
 
            
 
                 The November 27, 1992 notes of Dr. Irey, which is page 
 
            18 of deposition exhibit 1 of joint exhibit 14, opines that 
 
            claimant has a 30 percent impairment for his right knee 
 
            based on loss of motion and a 10 percent impairment based on 
 
            arthritis and a 30 percent impairment of his left knee based 
 
            on loss of motion and a 16 percent impairment to claimant's 
 
            back based on a 50 percent loss of motion.  Because of three 
 
            respective impairments to three different parts of 
 
            claimant's body, the doctor took the right knee which 
 
            converted to 15 percent impairment of the whole person and a 
 
            12 percent impairment of a whole person on converting the 
 
            left knee and a 16 percent body as a whole impairment as to 
 
            claimant's back and on the combined charts arrived at a 38 
 
            percent permanent impairment of the whole person and arrived 
 
            at the final physical impairment of claimant at 38 percent.  
 
            Dr. Chesser, on joint exhibit 7, page 4, using the combined 
 
            charts arrived at a 30 percent whole person impairment 
 
            placing a 14 percent right knee, 14 percent left knee and a 
 
            5 percent low back as the individual impairments before 
 
            using the combined charts.  It would appear that Dr. Irey 
 
            had a much more and detailed contact with the claimant over 
 
            a longer period of time as he had testified that he first 
 
            became acquainted with claimant on October 31, 1984 (Jt. Ex. 
 
            14, p. 5).
 
            
 
                 Joint exhibit 15 is the Industrial Fitness Center's 
 
            notes and on page 9 it reflects that on October 20, 1992, 
 
            they planned to have claimant discontinue physical therapy 
 
            at that time.  It would seem from this report that claimant 
 
            was in a healing period trying to improve his overall 
 
            condition and trying to reach a maximum healing condition.
 
            
 
                 Joint exhibit 15 is a work capacity evaluation and on 
 
            October 25, 1989, on pages 31 and 32, there is indication in 
 
            the evaluation summary that whatever the cause, these 
 
            coefficients of variations suggest an inconsistent effort.  
 
            On page 36, which is part of the functional capacity 
 
            evaluation of January 6, 1992, there is a comment that 
 
            claimant scored high or equivocal 8 out of 18 tests 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            indicating that the tests may not necessarily be considered 
 
            valid.  It further indicates that this test data may not be 
 
            considered generally representative of this individual's 
 
            potential maximal functional ability.
 
            
 
                 There is no dispute that on October 22, 1990, claimant 
 
            had climbed a ladder ready to analyze the situation at a 
 
            customer of defendant employer concerning the removal of 
 
            asbestos.  Claimant, upon coming down from his inspection, 
 
            slipped on the ladder and his legs went into different 
 
            directions straddling the rung of the ladder and claimant 
 
            alleges injury.
 
            
 
                 Claimant has had considerable history of injuries and 
 
            problems particularly involving his right knee and has had 
 
            knee surgery on April 19, 1985 and February of 1989.  When 
 
            claimant fell on October 22, the first doctor he had gone to 
 
            indicated claimant should have right knee surgery right 
 
            away.  Claimant desired a second opinion and it appears the 
 
            second opinion agreed but claimant never did have that 
 
            surgery.
 
            
 
                 Claimant had incurred a 39 percent permanent impairment 
 
            rating after his April 19, 1985 surgery which resulted from 
 
            his 1984 injury.
 
            
 
                 Claimant has had problems with his left knee but the 
 
            greater weight of evidence indicates that claimant's left 
 
            knee problems really became substantially exacerbated and 
 
            ultimately resulted in knee surgery on April 21, 1991, 
 
            because of the October 22, 1990 injury.
 
            
 
                 The Second Injury Fund takes the position that 
 
            claimant's right and left knee alleged injuries occurred 
 
            simultaneously and therefore since it is a simultaneous 
 
            injury, they would not be involved in any award resulting 
 
            from the same.  That would not necessarily be true in light 
 
            of the fact that claimant had a prior right knee injury and 
 
            there could be a situation which would still involve the 
 
            Second Injury Fund.
 
            ***** [Defendants assert on appeal that claimant's current 
 
            back condition is not caused by his work injury to his lower 
 
            extremities, but rather by his altered gait from his leg 
 
            injuries.  Clearly, where a work injury to a leg results in 
 
            an altered gait, which in turn causes an impairment to the 
 
            back, the back condition is a sequelae of the work injury 
 
            and compensable.  See Fridlington v. 3M, Arbitration 
 
            Decision, November 15, 1991; VanWey v. H.J. Heinz, Appeal 
 
            Decision, July 1992.
 
            Prior to his work injury, claimant was able to work.  After 
 
            his work injury, he is unable to return to his job.  He has 
 
            made over 100 applications for substitute employment without 
 
            success.  Claimant is clearly permanently and totally 
 
            disabled.]
 
            
 
                 It is found that the greater weight of evidence 
 
            indicates that claimant's back condition and resulting 
 
            impairment was a result of the October 22, 1990 work injury.
 
            
 
                 Defendant employer contends that claimant had 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            preexisting problems and that those problems are what have 
 
            resulted only in claimant's current medical conditions and 
 
            impairments and any disability.
 
            
 
                 The greater weight of medical testimony and evidence 
 
            and the record herein indicates that claimant did, in fact, 
 
            incur an injury to his back on October 22, 1990, and that on 
 
            that date claimant also incurred an injury to his right knee 
 
            that substantially and materially aggravated a preexisting 
 
            condition in his right knee that has resulted in claimant 
 
            incurring a substantial impairment.
 
            
 
                 Dr. Irey opined claimant had 37 percent impairment of 
 
            his right lower extremity as a result of his right knee 
 
            injury.  He opined claimant had a 30 percent impairment to 
 
            his left knee.  The doctor further opined claimant had a 15 
 
            percent impairment to his body as a whole as a result of his 
 
            back injury.  He opined claimant had a permanent partial 
 
            impairment to his body as a whole in total considering all 
 
            of the alleged injuries of 38 percent (Jt. Ex. 14, dep. 1, 
 
            p. 18).
 
            
 
                 Dr. Chesser, on page 3 of joint exhibit 7, opines 
 
            claimant had a 36 percent impairment to his right knee, a 35 
 
            percent to the left and 5 percent to the back.  His combined 
 
            body as a whole impairments using the combined charts 
 
            resulted in a 30 percent body as a whole impairment.  The 
 
            respective doctors did use the combined charts properly and 
 
            under the circumstances in this case all three parts of the 
 
            body were affected and that using the combined charts was 
 
            proper by the respective doctors.
 
            
 
                 Dr. Chesser was rendering his report of October 9, 
 
            1992, it appears, on a one-time evaluation of claimant.  Dr. 
 
            Irey has had a long-standing acquaintance with the claimant 
 
            as indicated in his deposition on page 5 of joint exhibit 
 
            14.  He has had contact with the claimant since October 31, 
 
            1984, and has seen claimant through various injuries.
 
            
 
                 There is no medical testimony that actually apportions 
 
            out any prior impairments that preexisted as relating to 
 
            claimant's current impairments.  Claimant did have a 39 
 
            percent rating pursuant to an October 1984 injury in which 
 
            he had surgery in 1985.  Claimant was still having problems 
 
            in 1989 with his knees, but the fact is he was working and 
 
            able to work and was hired to do this job and apparently was 
 
            able to climb ladders and perform the strenuous work that it 
 
            appears this job would entail.  There was never any rating 
 
            as to claimant's left knee and it appears he strengthened 
 
            and overcame some of his difficulties with his right knee.
 
            
 
                 Claimant in his testimony seems to have been motivated 
 
            in that he tried on different occasions to get himself back 
 
            into condition notwithstanding his injuries and it appears 
 
            his effort did enable him to seek employment and work beyond 
 
            any restrictions.  Defendants are obviously disturbed in 
 
            that claimant did not even work a day before he got injured.  
 
            It appears he wasn't working at other jobs very long when he 
 
            incurred an injury.  ***** 
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 The parties had agreed that claimant was off work 
 
            beginning October 23, 1990 through October 28, 1992,  and 
 
            apparently this stipulation was additionally influenced by 
 
            Dr. Irey's October 26, 1992 letter in which he indicated 
 
            claimant had reached maximum medical improvement.  This is 
 
            an unnumbered exhibit on Dr. Irey's deposition, joint 
 
            exhibit 14.  Defendants had actually paid 105.429 weeks of 
 
            healing period benefits but, of course, payment is not an 
 
            admission of liability.  They also agree that if there were 
 
            any permanent disability benefits they would begin October 
 
            29, 1992.
 
            
 
                 It is found that there is causal connection as to 
 
            claimant's weeks he was off and the healing period involved 
 
            herein and that claimant is entitled to the 105.429 weeks of 
 
            healing period benefits, and claimant did incur an injury 
 
            that arose out of and in the course of his employment when 
 
            on October 22, 1990, he slipped and fell down a ladder and 
 
            his legs got entrapped in the rung of the ladder.
 
            
 
                 It is further found that claimant has incurred 
 
            substantial loss of earning capacity and that claimant has 
 
            substantial body as a whole impairment and restrictions that 
 
            would, as a result of claimant's October 22, 1990 injury, 
 
            result in claimant being relegated to sedentary type of work 
 
            with limitations as to the extent of sitting and standing.  
 
            There have been two rehabilitation-type consultants involved 
 
            and neither has been able to find claimant a job and 
 
            indicates claimant's lack of a possibility of getting 
 
            employment.  This thought is also echoed as to the medical 
 
            testimony on claimant's ability to do or inability to do 
 
            certain things because of his restrictions and medical 
 
            condition.  Although the claimant had preexisting injuries, 
 
            claimant was doing his job even though he had been at work 
 
            only a few hours and that it is obvious he is now unable to 
 
            do the job that he was performing and hired to perform on 
 
            October 22, 1990, but at this time obviously unable to 
 
            perform any other job that he had done in the past.
 
            
 
                 After considering claimant's age, prior and post-injury 
 
            medical and work history, transferable skills, intelligence, 
 
            education, location of his injuries, severity, and healing 
 
            period, motivation, functional impairments, restrictions and 
 
            any other element that is considered to determine one's 
 
            industrial disability, it is found that claimant is 
 
            permanently and totally disabled as a result of the October 
 
            22, 1990 injury and that said injury substantially and 
 
            materially aggravated, lighted up and heightened claimant's 
 
            preexisting conditions to his scheduled members and any back 
 
            injury or condition.
 
            
 
                 There has been no apportioning out of any prior 
 
            disability other than claimant did in 1985 have 39 percent 
 
            impairment to his right knee.  In light of the finding of 
 
            claimant being totally and permanently disabled, there would 
 
            be no apportionment out of that disability to a scheduled 
 
            member.  Also, there is no evidence of what impairment 
 
            claimant had as of October 22, 1990, resulting from his 
 
            October 1984 knee injury.
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 It is found that as to the Second Injury Fund, the 
 
            Second Injury Fund is not liable in this matter for the 
 
            reason that the injury of October 22, 1990 in and of itself 
 
            caused claimant's permanent total disability.  There is 
 
            insufficient evidence to show that if there had not been the 
 
            first injury in 1984, claimant would not have been totally 
 
            and permanently disabled as a result of claimant's October 
 
            22, 1990 injury.
 
            
 
                 The parties are disputing the rate at which benefits 
 
            should be paid if any are awarded.  Claimant contends that 
 
            he was making $11 per hour for a six day week which would 
 
            amount to 72 hours a week and result in gross weekly income 
 
            of $792, which would lead to a weekly rate of $481.68.  
 
            Defendants contend that claimant was making $11 an hour on 
 
            eight hours a day five days a week which would result in a 
 
            gross weekly wage of $440 and a rate of $284.46.  There is 
 
            no dispute in the hourly rate and there is no dispute that 
 
            claimant was paid 12 hours of work at the $11 rate on the 
 
            date of his injury and that this date of his injury was the 
 
            only day claimant worked and he only worked four hours that 
 
            day even though he was paid for 12 hours.  There is no other 
 
            evidence of claimant's income.  We have only claimant's 
 
            testimony.  Defendants do not have any contrary evidence 
 
            other than there is joint exhibit 16 which indicates that 
 
            which defendants filled out on April 8, 1993, the Thursday 
 
            before the Monday hearing of this case in which they 
 
            indicate gross weekly wages of $440.
 
            The issue of claimant's rate of compensation is asserted on 
 
            appeal.  Defendant and the Second Injury Fund of Iowa urges 
 
            that claimant did not give proper notice of this issue.  
 
            Claimant did not specifically list rate as an issue in his 
 
            petition.  It was not listed as an issue on the prehearing 
 
            conference report.
 
            Claimant argues that defendant employer and the Fund were 
 
            aware that his position was that his rate was based on a 
 
            12-hour per day, six day per week basis.  Claimant testified 
 
            that he was injured his first day on the job, but he was 
 
            paid for 12 hours that day.  He also testified that he was 
 
            told by both his foreman and by co-workers that the crew 
 
            normally worked six, twelve-hour days.
 
            In addition to the failure to list rate as an issue prior to 
 
            the day of the hearing, defendant employer and Fund point 
 
            out that claimant was paid voluntary benefits based on a 
 
            40-hour week, for a considerable period of time and claimant 
 
            did not object.  They urge that witnesses would have been 
 
            offered to rebut claimant's testimony if they had notice of 
 
            the issue.
 
            This agency follows an unfair prejudice standard in regard 
 
            to proper notice of issues to be tried at hearing.  That is, 
 
            where a party fails to comply with the rules requiring 
 
            proper notice to an opponent of the issues in dispute and to 
 
            be litigated at the hearing, the party seeking inclusion of 
 
            an issue must show either that other parties were apprised 
 
            of the issue by notice from the party seeking admission, 
 
            from pleadings, from discovery, or otherwise in sufficient 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            time to timely complete all case preparation necessary as 
 
            regards that issue.
 
            In the case at hand, it does not appear that claimant gave 
 
            either defendants or the Fund sufficient notice that the 
 
            rate of compensation would be an issue at the hearing.  
 
            Claimant's statement given to an investigator approximately 
 
            one month after the injury wherein he stated he believed his 
 
            rate to be based on a 72-hour week is not sufficient notice 
 
            to defendants that the rate of compensation would need to be 
 
            litigated at the hearing.  This is especially true where 
 
            claimant accepted voluntary benefits based on a 40-hour 
 
            week.  Although claimant was not required to decline the 
 
            benefits for this reason, his acceptance of them without 
 
            pointing out a perceived error is additional evidence that 
 
            claimant failed to identify this as an issue until the day 
 
            of the hearing.
 
            Claimant's rate of compensation will be based on a gross 
 
            weekly earnings of $440 per week, yielding a rate of $284.46
 
            *****
 
                                
 
                                CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed May 14, 1993 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury on October 
 
            12, 1990, which arose out of and in the course of  
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 12, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is 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, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch.,
 
            
 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 
 
            158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
            N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 
 
            613, 106 N.W.2d 591 (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251.  Barton v. 
 
            Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that signifi     injury was the resulting cause of claimant's permanent total 
 
            disability to any extent that would cause the Second Injury 
 
            Fund to be liable under the facts of this case.
 
            
 
                 Claimant was hired to be paid a weekly gross wage of 
 
            [$440], ***** thereby, making his weekly rate [$284.46] 
 
            ***** based on claimant working and having been paid $11 per 
 
            hour for a 12 hour work day, six days per week.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay claimant compensation for 
 
            permanent total disability at the rate of two hundred 
 
            eighty-four and 46/100 dollars ($284.46) per week for the 
 
            period of claimant's disability commencing on October 23, 
 
            1990, the day after claimant's injury as claimant was paid 
 
            for the full day of the date of injury.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record shows that 
 
            defendants previously paid one hundred five point four two 
 
            nine (105.429) weeks at two hundred eighty-four and 46/100 
 
            dollars ($284.46).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            That defendants shall pay the costs of the appeal, including 
 
            the preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Ms. Carole J. Anderson
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Mr. James F. Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1100; 5-1108; 5-1804;
 
                                             5-3002; 5-3200
 
                                             Filed February 28, 1994
 
                                             Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            MICHAEL CONRAD,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 962663
 
            ENVIRONMENTAL MANAGEMENT   
 
            SERVICES,   
 
                                                     A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            AETNA INSURANCE,      
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1100; 5-1108; 5-1804
 
            Found claimant permanently and totally disabled as a result 
 
            of an October 22, 1990 injury found to have arose out of and 
 
            in the course of claimant's employment and found to have 
 
            caused claimant's total disability.
 
            
 
            5-3002
 
            Rate determined to be the rate ($284.46) the defendants had 
 
            advocated.
 
            
 
            5-3200
 
            Found Second Injury Fund not liable to claimant for any 
 
            benefits.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL CONRAD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 962663
 
            ENVIRONMENTAL MANAGEMENT      :
 
            SERVICES,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on April 12, 1993, at 
 
            Dubuque, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent disability 
 
            benefits as a result of an alleged injury occurring on 
 
            October 22, 1990.  The record in the proceeding consists of 
 
            the testimony of claimant and joint exhibits 1 through 17.
 
            
 
                                      ISSUES
 
            
 
                 The issues in the case are:
 
            
 
                 1.  Whether claimant incurred an injury that arose out 
 
            of and in the course of his employment on October 22, 1990;
 
            
 
                 2.  Whether there is a causal connection between 
 
            claimant's alleged work injury, his medical condition and 
 
            any disability;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 4.  Whether claimant's alleged injury is only to a 
 
            scheduled member or a simultaneous bilateral scheduled 
 
            member injury or industrial disability;
 
            
 
                 5.  Whether the Second Injury Fund is liable for any 
 
            benefits.
 
            
 
                 6.  The rate at which benefits would be paid.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 35 years old and went through the ninth 
 
            grade.  He then entered the navy in 1974 through 1976.  
 
            Claimant then related his work history from 1976 up to the 
 
            date he began working for defendant employer on October 22, 
 
            1990.  This work history included several jobs involving 
 
            manual and heavy duty work such as digging ditches, laying 
 
            pipe, general labor work, using a jackhammer, pouring 
 
            concrete, carrying forms, tearing off roofing, carrying 
 
            shingles, general cleanup, constructing roads, laying road 
 
            forms, digging footings, using wheelbarrow to haul sand, 
 
            carrying rods, demolition work, knocking out walls, working 
 
            with carpenters, pick axing rock, installing television 
 
            cable, working in crawl spaces, and doing general cable 
 
            installation.
 
            
 
                 Claimant said that between 1976 and 1983, his various 
 
            jobs paid him between $13 and $16 per hour and he would be 
 
            lifting 15 to 150 pounds.  Claimant said he had no problem 
 
            up to December 1983 lifting these weights except on one 
 
            occasion in 1975 while in the service he injured his right 
 
            knee and was off one day and this injury resolved itself.
 
            
 
                 Claimant testified that in October 1984, while working 
 
            for Cox Cable, he injured his right knee while carrying a 
 
            ladder to the telephone pole.  He slipped and the ladder 
 
            fell across his knee.  Claimant had right knee surgery on 
 
            April 19, 1985.
 
            
 
                 Claimant related that he had physical therapy with 
 
            William R. Irey, M.D., and that he stopped treatment in 
 
            1987.  He indicated the knee wasn't bad or good and that it 
 
            was still aggravating him.  He acknowledged that there was a 
 
            39 percent permanent impairment rating and he was released 
 
            to sedentary-type work.  Claimant said his left knee was not 
 
            hurt but he did have some back strain that worked itself 
 
            out.  This strain was caused when he fell and hit his 
 
            tailbone.  There had been no rating to his back or left 
 
            knee.
 
            
 
                 After his release by Dr. Irey, claimant returned to Cox 
 
            Cable but indicated the situation was not good as the 
 
            employer knew claimant's status and claimant was working 
 
            inside and claimant wanted to work outside.  He eventually 
 
            took the dispatcher job but still wanted to work outside and 
 
            there was controversy between him and the boss.  Claimant 
 
            was fired in 1988 when he returned one hour late from 
 
            vacation.  Claimant said he liked the company and did 
 
            everything they wanted and bent over backwards to help them.
 
            
 
                 Claimant said at that time, because of his right leg, 
 
            he was restricted from climbing stairs, bending or squatting 
 
            but had no problems standing and he was to do no heavy work.
 
            
 
                 Claimant then testified that around May 1988, when he 
 
            was off work after being fired, he went into a several month 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            conditioning program working out lifting weights and getting 
 
            himself back into a good healthy condition.  He indicated 
 
            being off work and being injured was also affecting his 
 
            marriage.  Claimant indicated that he was back in shape 95 
 
            percent and felt good and took a job with FDL as a meat 
 
            cutter, trimming loins, hanging hogs and cleaning up.  On 
 
            February 12, 1989, after having worked for two weeks for 
 
            FDL, he was lifting 50 pound boxes and 50 to 75 pound hogs.  
 
            Claimant said that on February 12, 1989, he was walking 
 
            across a floor that had been sprayed when he slipped and 
 
            hurt his right knee again.  Claimant then had surgery again 
 
            on his right knee in March of 1989.
 
            
 
                 Claimant said he was released for work again to light 
 
            duty, sedentary, no stairs, etc., similar to the 
 
            restrictions he had previously.  Claimant then returned to 
 
            work at FDL and his jobs were outside his restrictions.  He 
 
            tried to perform them but couldn't so he went to the doctor 
 
            who then put him on a lighter duty job in the locker room.  
 
            He said this was a non-posted job and the union told him it 
 
            wasn't a contract position but a man-made job so claimant 
 
            was asked to resign and did in 1990.
 
            
 
                 Claimant said when he left FDL he was not having any 
 
            trouble with his left leg except he had atrophy from 
 
            favoring his right leg and he was limping on his right leg.  
 
            He said he had no basic back trouble when he left FDL.
 
            
 
                 Claimant indicated his wife was on him again because he 
 
            couldn't get a job and tried to get help from vocational 
 
            rehabilitation and begged people for a job.  He said he 
 
            again did voluntary exercises to get into shape and took a 
 
            one week's course on asbestos removal.
 
            
 
                 In April or May of 1990, claimant went to work as an 
 
            asbestos remover which involved hauling bags out weighing 
 
            about 75 pounds after there had been some demolition done.  
 
            This job paid $6 per hour.  He then went to Washington, 
 
            D.C., and worked on an asbestos removal job which paid $16 
 
            an hour and $32 overtime.  This involved removing tile from 
 
            the floor and carrying containers weighing 50 to 75 pounds.  
 
            He indicated he got along pretty good without any real pain.  
 
            He said the contract ended so that was the end of the job.
 
            
 
                 Claimant then began working for defendant employer at 
 
            $11 per hour.  He said he was told by his foreman that he 
 
            would be working 12 hours per day six days per week.  
 
            Claimant said on the day of his injury, which was his first 
 
            day of work, he was to take two other employees and go up 
 
            the scaffold to see what asbestos had to be removed.  
 
            Claimant indicted he had to climb up the ladder.  It was 
 
            very dark and no lights.  Claimant then started down the 
 
            scaffolding and while climbing down the little narrow 
 
            ladder, claimant's right leg fell through inside of the 
 
            ladder rung and the left leg went through the outside of the 
 
            ladder rung and claimant's legs were wrenched in the rung 
 
            and claimant hit the ladder as he went down.  Claimant 
 
            estimated he fell approximately six feet.  Claimant's knee 
 
            hit the bar of the scaffold.  Claimant fell backwards and 
 
            grabbed the bar.  He indicated he had a tool belt on.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant said he went to a medical specialist the next 
 
            day and after that examination he indicted the doctor asked 
 
            him if he could have surgery that day.  Claimant said he 
 
            wanted a second opinion and went to another doctor who 
 
            confirmed that claimant should have surgery.  Claimant said 
 
            that after the fall he had tremendous headaches for quite 
 
            some time and felt like he had wrenched his lower back.
 
            
 
                 Claimant said his injury occurred approximately four 
 
            hours after he started the job and that he was paid for a 
 
            full day of work, twelve hours, even though he didn't work 
 
            the rest of the day.  Claimant said that he injured both 
 
            knees and his back on October 22, 1990, and told the 
 
            insurance carrier (Jt. Ex. 2, pp. 3 and 4).  He indicated he 
 
            couldn't tell which leg was worse.  Claimant acknowledged 
 
            that he did not tell Jay Ginther, M.D., anything regarding 
 
            his back for a period of time but after the first visit he 
 
            did tell him and he said the doctor told him he had a 
 
            possible lumbar strain and that he should sit in the tub.  
 
            He said his back gradually kept getting worse.  Claimant 
 
            then was referred to joint exhibit 7, page 2, in which the 
 
            doctor indicated in October 1990 claimant had complaints of 
 
            bilateral knee pain and low back pain.  Claimant emphasized 
 
            that before he fell on October 22,1990, he had not had any 
 
            back pain for at least a year prior and never saw a doctor 
 
            for back pain before and that he hadn't had any left leg 
 
            problems but just soreness due to favoring his right leg.
 
            
 
                 Claimant was asked concerning the notation of 
 
            defendants that he was a temporary part-time worker.  
 
            Claimant emphasized that he understood he was hired full 
 
            time and was never told that it was a temporary job.
 
            
 
                 Claimant indicated that defendant insurance carrier 
 
            hired a vocational rehabilitation person to get involved 
 
            with claimant's case but claimant indicated the consultant, 
 
            Christopher Yep, never assisted in looking for work or gave 
 
            any career guidance and had one conference and wrote one 
 
            report.  Claimant said he met with Robert Bubbers, an 
 
            Illinois Vocational Rehabilitation consultant who issued a 
 
            report represented by joint exhibit 6.  Claimant said he saw 
 
            Mr. Bubbers 25 to 30 times and was told by Mr. Bubbers that 
 
            there was nothing there for claimant to do.  Claimant said 
 
            he made 40 or 50 phone calls and went to Job Service and to 
 
            JTPA looking for work or training since his October 1990 
 
            injury.
 
            
 
                 Claimant said he has seen a psychiatrist, Dr. William 
 
            Nissen, twice and has received some psychological 
 
            counseling.  He indicted there are problems in his marriage 
 
            because he has had no income or job.  Claimant said he has 
 
            applied for 20 or 30 jobs since the October injury and 
 
            before February 1992 and since February 1992 has sought 
 
            approximately 73 more jobs or interviews.  Claimant said he 
 
            never got any interviews.  Claimant said he presently uses 
 
            his upper body okay but not his lower body.  He indicated he 
 
            holds on to a table at times when he is sitting and doesn't 
 
            sleep well.  Claimant indicated that after his first injury 
 
            and his 39 percent impairment, he could still do things but 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            now he cannot move around well as he could trip over a cord 
 
            and his knees give out.
 
            
 
                 Claimant said he disagrees with Dr. Irey if Dr. Irey 
 
            indicates there is no difference as to what claimant can do 
 
            now between the 1986 versus the current situation.  Claimant 
 
            emphasized he can do less now as to job opportunities.
 
            
 
                 On cross-examination, claimant was questioned as to the 
 
            records showing he couldn't pass the functional capacity 
 
            validity portion of the test in January 1992 nor the 
 
            workers' compensation test validity portion in October 1989.  
 
            Claimant was further questioned as to the validity score 
 
            which the records shows was less than maximal effort.
 
            
 
                 Claimant acknowledged he is receiving social security 
 
            benefits which were recently granted.  He also acknowledged 
 
            that he received a Cox Cable settlement for a workers' 
 
            compensation injury and an FDL Foods workers' compensation 
 
            settlement.
 
            
 
                 Claimant said he is taking classes now and said he 
 
            began searching for work after his release by Dr. Irey in 
 
            1992 and has made 100 job contacts.  He indicated he had 
 
            made only four or five contacts before November 1992.
 
            
 
                 Dr. Irey, an orthopedic surgeon, testified through his 
 
            deposition on April 6, 1993, represented by joint exhibit 
 
            14.  The doctor testified that his first contact with 
 
            claimant was October 31, 1984, and had his record from 
 
            another doctor from October 23, 1984.  This doctor visit 
 
            with claimant was in respect to claimant having injured his 
 
            right knee on October 23, 1984, and had injured or was 
 
            having problem with that knee in the navy approximately ten 
 
            years earlier.  The doctor explained his diagnosis and 
 
            eventually recommended claimant have an arthroscopic exam on 
 
            his knee.  That exam was done on February 7, 1985, and the 
 
            doctor eventually did surgery on claimant's right knee.  The 
 
            doctor cannot tell how much of claimant's knee problems were 
 
            due to the October 1984 injury and how much to earlier 
 
            injuries.  The doctor described his continuing treatment of 
 
            claimant and released him to light duty on April 16, 1985.  
 
            He indicated claimant was progressing less than average in 
 
            his ability to use his leg.  The doctor then referred the 
 
            claimant to a Dr. Whitmore for a second opinion and claimant 
 
            eventually had a cast put on the knee and eventual physical 
 
            therapy but this did not seem to help so claimant was 
 
            referred to the University of Iowa for another opinion.  
 
            Further physical therapy was recommended by the University 
 
            of Iowa in addition to knee manipulation under a general 
 
            anesthetic.  Claimant rejected the general manipulation of 
 
            the knee as he earlier had rejected a cortisone treatment to 
 
            the knee.
 
            
 
                 After Dr. Irey saw claimant again on November 19, 1985, 
 
            after the claimant's University of Iowa visit, the doctor 
 
            offered claimant a cortisone injection again which claimant 
 
            declined and physical therapy was recommended to continue.
 
            
 
                 In January of 1986, it was recommended that claimant 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            have an arthroscopic examination and remove the scar tissue 
 
            which is considered an alternative way of performing a knee 
 
            manipulation and claimant refused.  Claimant became 
 
            increasingly emotionally depressed around the end of January 
 
            1986 and was having difficulty making decisions and was 
 
            expressing anxiety about his work future and the future for 
 
            his knee (Jt. Ex. 14, pp. 15 and 16).  Dr. Irey eventually 
 
            referred claimant to a psychiatrist.
 
            
 
                 When the doctor saw claimant again on April 23, 1986, 
 
            claimant had very little flexion at that time, only about 30 
 
            degrees.  The doctor further explained what he observed in 
 
            his examination.
 
            
 
                 When the doctor saw claimant in May of 1986, claimant 
 
            also started to have symptoms in his left knee similar to 
 
            those in his right and he wasn't sure what would have caused 
 
            it but presumed that they may be coming from his abnormal 
 
            gait on his right leg and walking in an unusual way on his 
 
            left as well but that was only his guess (Jt. Ex. 14, p. 
 
            19).
 
            
 
                 On July 22, 1986, the doctor did an impairment rating 
 
            on claimant's right leg under the AMA Guides to the 
 
            Evaluation of Permanent Impairment and opined claimant had a 
 
            39 percent impairment of that extremity.
 
            
 
                 The doctor said claimant saw him on April 16, 1987 due 
 
            to claimant reinjuring his right knee on April 1, 1987 (Jt. 
 
            Ex. 14, p. 21).  When claimant returned for his next visit 
 
            on April 30, 1987, he was complaining of left lower back 
 
            pain radiating down into his left leg and his right knee had 
 
            given away on him on one or two occasions so he was having 
 
            pain in both legs and his lower back at that point.  At that 
 
            time, the doctor could not determine any cause of claimant's 
 
            back problems.  Claimant was prescribed a knee brace in May 
 
            of 1987 and a later visit in May he asked to see a 
 
            psychiatrist, a Dr. Nissen, again.  At the end of May 1987, 
 
            claimant was taken off work and on June 23, 1987, claimant's 
 
            condition had not changed at that time or had it changed on 
 
            July 21, 1987, from the way it had been before the April 1, 
 
            1987 injury (Jt. Ex. 14, p. 25).
 
            
 
                 The doctor then said that on August 13, 1987, he 
 
            received a phone message from the claimant's wife who 
 
            indicated they didn't want any information given to the 
 
            compensation carrier or the company without their 
 
            permission.  On August 12, 1987, the doctor did receive a 
 
            call from Cox Cable requesting to know if claimant was there 
 
            on August 10, 1987.  Claimant wasn't there on that date but 
 
            there was a visit on August 13, 1987.  The doctor said that 
 
            there was no need for claimant to miss work for weeks at a 
 
            time when his knee flares up.
 
            
 
                 Dr. Irey did not see claimant anymore after the 
 
            September 1, 1987 visit until August 18, 1992.  The 
 
            examination on that date showed claimant had surgery on both 
 
            knees, swelling, tenderness on the front portion of both 
 
            knees, the ligaments of the knees were stable, and claimant 
 
            had a crunching sound or crepitus with flexion and extension 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of both knees.  He examined claimant's back and claimant had 
 
            about half of what one could normally do on back extension 
 
            or straightening and also bending to the side (Jt. Ex. 14, 
 
            p. 29).  The doctor opined that he thought claimant's right 
 
            knee pain was due to the same problem he had back in 1986 
 
            and 1987 and did not know for sure the exact cause of 
 
            claimant's back pain nor did he have an opinion as to how 
 
            claimant's left knee came to be in the condition it was (Jt. 
 
            Ex. 14, pp. 29 and 30).
 
            
 
                 On October 9, 1992, the doctor was recommending 
 
            claimant should have a job change and that he should assign 
 
            permanent restrictions and that a physical therapist should 
 
            review a home program of back and leg exercises.
 
            
 
                 The doctor said there was no way he could tell what 
 
            changes there might have been in claimant's knees and back 
 
            after his October 1990 injury and his condition October 9, 
 
            1992 (Jt. Ex. 14, p. 33).
 
            
 
                 Dr. Irey then did an evaluation of claimant on his next 
 
            visit on November 27, 1992, and based on claimant's 
 
            limitation of motion, he opined that claimant had a 37 
 
            percent impairment of the right knee and a 30 percent of the 
 
            left knee and a 16 percent permanent impairment of 
 
            claimant's back (Jt. Ex. 14, pp. 34-36).  The doctor further 
 
            stated that in terms of what the current evaluation is, he 
 
            was not able to determine when the particular current 
 
            impairments came to be.  In other words, he did not know at 
 
            that time when claimant's knee became 30 percent impaired or 
 
            as a result of what injury or injuries became 30 percent 
 
            impaired.  The doctor agreed that at the time he did the 39 
 
            percent impairment of claimant's knee from his April 19, 
 
            1985 injury, he had not done a rating on claimant's left 
 
            knee.  He, likewise, cannot tell when the 16 percent 
 
            impairment of the whole person regarding claimant's back 
 
            actually  became impaired.  The doctor therefore emphasized 
 
            that there was no way to distinguish what happened after 
 
            October 1990 and how much of it was already there before 
 
            with regard to the claimant's left knee and the back.  
 
            Regarding the right knee, the doctor said the impairment 
 
            rating at that time in November 1992 was no worse than it 
 
            was when he had done the impairment some years earlier (Jt. 
 
            Ex. 14, pp. 34-37).  
 
            
 
                 The doctor was asked whether claimant had a permanent 
 
            impairment based on the tenderness in claimant's low back on 
 
            April 30, 1987, and the doctor indicated that it is his 
 
            strong suspicion and based on his limited notes that 
 
            claimant would not have had any measurable permanent partial 
 
            physical impairment at that time and, in fact, he had not 
 
            placed any impairment rating on claimant's back in 1987 or 
 
            anytime before that.
 
            
 
                 The doctor testified that when he examined claimant's 
 
            left leg on August 1, 1986, he did not think claimant would 
 
            ever require surgery for his left leg nor would claimant 
 
            have qualified for permanent impairment evaluation with 
 
            respect to his left leg and that any permanent impairment 
 
            rating based on the limited information he had would be 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            zero.  The doctor said claimant's left knee situation 
 
            changed substantially from 1986 and 1987 to 1992 and that 
 
            claimant's motion is limited to 65 degree flexion (Jt. Ex. 
 
            14, p. 42-43).  The doctor then testified that in comparing 
 
            the left leg with the restrictions claimant had in 1986 and 
 
            1987 and now in 1992, he did not think there was any 
 
            significant change in his work restrictions.
 
            
 
                 The doctor was then asked again about claimant's right 
 
            knee and the chondromalacia which the doctor indicated is a 
 
            degeneration of the cartilage in the knee.  The doctor 
 
            indicated it could be caused by a congenital process or an 
 
            injury or a cumulative process, but the doctor indicated 
 
            that most usually it is caused by a congenital process or 
 
            injury.  The doctor did not know the cause claimant's 
 
            chondromalacia to his right knee.  The doctor said that as 
 
            to claimant's right knee, it is possible that he was having 
 
            trouble with chondromalacia in his left knee but he 
 
            indicated he did not think he would go that far to say that 
 
            he had it.  He also acknowledged that in August of 1986, 
 
            claimant was having some problems with his left leg as well 
 
            as his right and that he was starting to have symptoms in 
 
            his left knee similar to those he had in his right.  The 
 
            doctor did not know what was causing claimant's left leg 
 
            problems.
 
            
 
                 The doctor was asked what he meant when he indicated in 
 
            his notes of June 23, 1987, in which he indicated Michael 
 
            remained somewhat difficult to evaluate.  The doctor 
 
            indicated that by that he meant claimant's complaints of 
 
            pain were in excess of the objective findings that were 
 
            there and claimant was very difficult to evaluate and to 
 
            know where he really was in his treatment and recovery (Jt. 
 
            14, pp. 59-60).
 
            
 
                 In summary, at the end of Dr. Irey's testimony, he 
 
            indicated that he could not tell what of claimant's current 
 
            condition is attributable to the state he was already in or 
 
            had back in 1987, what was due to his February 1989 injury, 
 
            and what was due to his October 22, 1990 injury, and what 
 
            was due to some other cause altogether.  He also emphasized 
 
            that there was no significant difference in the kind of work 
 
            claimant was able to do now compared to what he was able to 
 
            do in 1987 and that he would never have recommended that 
 
            claimant accept a job that would require him to go up and 
 
            down ladders based on the doctor's examination in 1987 (Jt. 
 
            Ex. 14, pp. 67-68).
 
            
 
                 Joint exhibit 1, pages 1 through 27, is the records 
 
            from Jay P. Ginther, M.D.  The notes reflect that on 
 
            February 7, 1989, claimant slipped on some grease at work 
 
            while carrying some hot dogs and claimant had resulting 
 
            problems with his right knee.  Claimant had surgery in March 
 
            of 1989.  The doctor's notes show the care and service he 
 
            rendered plus the therapy and exercises prescribed and the 
 
            status of claimant's condition during the several visits.  
 
            On November 7, 1989, the doctor's notes refer to a full 
 
            capacity evaluation center report being sent back to him and 
 
            the doctor referred to certain limitations that claimant 
 
            should operate under.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 The note shows that on October 31, 1990, the claimant 
 
            was in to see the doctor for a new injury and indicated that 
 
            claimant had been his patient for an extended period of time 
 
            throughout virtually the entirety of 1989.  The doctor's 
 
            notes reflect that claimant had had arthroscopic 
 
            chondroplasty in 1989 on his right knee and that he 
 
            recovered enough that he was able to get back to work and 
 
            had not seen him for almost a year because claimant has been 
 
            able to do those things he wished to do (Jt. Ex. 1, p. 5).  
 
            Claimant was seeing Dr. Ginther for a second opinion and it 
 
            was Dr. Ginther who had performed claimant's arthroscopic 
 
            chondroplasty in March of 1989 on the right knee.
 
            
 
                 The doctor's November 9, 1990 notes reflect that 
 
            claimant is having left knee problems as well in relating 
 
            this to the October 22, 1990 incident at defendant employer 
 
            in which claimant slipped on the ladder.
 
            
 
                 Claimant was scheduled for a right knee arthroscopy for 
 
            January 10, 1991, but several things occurred which 
 
            prevented him from having the surgery.  In the meantime, 
 
            claimant's left knee was beginning to bother him more than 
 
            the right.  The doctor's note reflects on page 13 of Exhibit 
 
            1 that claimant's right knee fully recovered from the 
 
            ligamentous strain that he had initially and has good 
 
            strength and free of crepitation.  The left knee continues 
 
            to give claimant trouble.  It was therefore decided that 
 
            there should be surgery on the left knee.  Around April 22, 
 
            1991, claimant had surgery on his left knee (Jt. Ex. 1, p. 
 
            22).  Claimant was still getting treatment and trying to be 
 
            rehabilitated and as of March 4, 1992, claimant was 
 
            continuing to have problems with his knees and there was 
 
            crepitation on the left but was not very prominent on the 
 
            right.
 
            
 
                 On June 3, 1992, Dr. Ginther wrote a report that 
 
            indicated claimant had reached maximum medical improvement 
 
            and indicated the AMA Guides to the Evaluation of Permanent 
 
            Impairment suggest that an impairment between 5 and 10 
 
            percent for each leg would be appropriate.  He indicated 
 
            claimant was continuing in physical therapy.  He said the 
 
            only option left was to continue to have claimant in 
 
            physical therapy on the very remote chance that he will 
 
            eventually be able to go back to his old occupation (Jt. Ex. 
 
            1, p. 25).
 
            
 
                 On the same date, he wrote a letter to claimant's 
 
            attorney indicating it was very difficult to assign a 
 
            permanent impairment as to claimant's back other than 
 
            claimant's complaint of pain.  The doctor said he has been 
 
            unable to document any objective difficulty with claimant's 
 
            back.  He also said it was difficult to establish a causal 
 
            connection between an injury of a year and a half ago and 
 
            his current back situation.  The doctor indicated the same 
 
            difficulty concerning left knee and indicated there is very 
 
            little objective evidence to support the place of pain that 
 
            the patient continues to have.  He said he didn't find the 
 
            chondromalacia.  He indicated the swelling and crepitation 
 
            have largely disappeared but the pain persists.  The doctor 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            said the same situation pertains to the right knee and that 
 
            the objective findings of swelling and crepitation have 
 
            largely resolved.  He indicated a permanent restriction 
 
            should be placed on claimant from stooping, climbing, 
 
            squatting and repetitive heavy lifting.
 
            
 
                 The doctor further went on concerning claimant's 
 
            employability and said that claimant has expressed an 
 
            interest in having a rehabilitation counselor find something 
 
            for him and to train him but that in today's job market 
 
            there is probably not much employment for someone who does 
 
            not have any internal ambition to find an area of training 
 
            or education and pursuing a job.  He also indicated that it 
 
            will prove difficult to assign specific numbers to 
 
            claimant's functional impairment unless he gets a testing 
 
            done which comes out with better performance on the validity 
 
            criteria.
 
            
 
                 On June 19, 1992, the doctor wrote the defendant 
 
            insurance company indicating that he felt the possibility 
 
            was remote that claimant could eventually return to his old 
 
            occupation but he understood they were going to attempt to 
 
            do the same and, if not, there should be a formal work 
 
            capacity evaluation report from physical therapy and set 
 
            things up for retraining of claimant in a field of work that 
 
            falls within that work capacity.
 
            
 
                 Joint exhibit 3 is an exhibit encompassing about 20 
 
            pages of which all but two are for all purposes worthless 
 
            and several of the pages are blank with nothing on them 
 
            except some lines and numbers which are meaningless.  
 
            Putting in blank pages and worthless documents is even more 
 
            serious than duplication and it is just a useless cost to 
 
            one's client, harm to the environment, a waste of the 
 
            undersigned's time, in addition to compounding the storage 
 
            problems.  It is a violation of Iowa Code section 17A.14(1).
 
            
 
                 Pages 13 and 14 of joint exhibit 3 reflect that on 
 
            November 4, 1985, claimant, at 28 years of age, was at the 
 
            University Hospital for evaluation of a right knee pain and 
 
            stiffness and that claimant had a long history of knee pain 
 
            which was exasperated one year ago when claimant was working 
 
            and slipped and fell causing hyperextension of his right 
 
            knee.
 
            
 
                 Joint exhibit 4 is the records from the Samaritan 
 
            Hospital encompassing 50 pages.  Page 2 of this exhibit 
 
            reflects in the history and physical examination that 
 
            claimant injured both knees in October of 1990 and that the 
 
            right knee's strain appeared to be more of a problem but 
 
            that claimant is having the same problem in both knees as to 
 
            pain, catching, giving away and locking.  Joint exhibit 4, 
 
            page 21, is a report of the April 22, 1991 arthroscopy of 
 
            claimant's left knee.
 
            
 
                 Joint exhibit 5, page 3, is a new hire information 
 
            record from claimant's personnel file which indicted 
 
            claimant started on October 22, 1990 as a temporary 
 
            full-time being paid $11 per hour.  Page 20 of this exhibit 
 
            is a time sheet which reflects the one day that claimant 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            worked.  From the evidence, it appears that claimant did not 
 
            actually work physically more than four hours and it 
 
            confirms the fact that, as claimant testified, he was paid 
 
            as if he worked the full day.  This exhibit shows claimant 
 
            worked 12 hours and got paid for 12 hours.
 
            
 
                 Page 22 of said exhibit is a copy of the work injury 
 
            report in which the employer set out that claimant normally 
 
            worked 40 hours a week.  It appears the inference would be 
 
            that claimant worked five days a week eight hours a day for 
 
            the 40 hours.  This would be inconsistent with claimant's 
 
            testimony which was not disputed by any witness of 
 
            defendants that claimant was working 12 hours a day.  The 
 
            personnel records of the claimant, as indicated earlier, 
 
            shows that he was paid for the only day he worked for 12 
 
            hours which would indicate that if claimant worked 40 hours 
 
            a week, he would be working a little over three days a week 
 
            and claimant testified he was hired to work six days a week.  
 
            It would seem logical regarding the project that claimant 
 
            was working on as reflected on page 21 of the exhibit that 
 
            he would be removing the asbestos for more than 
 
            approximately three days a week.
 
            
 
                 Joint exhibit 6 is the records of Robert Bubbers, a 
 
            rehabilitation counselor.  On April 1, 1992, he indicated 
 
            that based on claimant's mobility, pain tolerance and 
 
            emotional stress, he didn't feel that claimant has the 
 
            capability of being gainfully employed at this time.  On 
 
            March 22, 1993, Mr. Bubbers again indicated that the 
 
            claimant does not have the capability to handle competitive 
 
            employment at this time and that nothing has changed his 
 
            mind since he wrote the prior letter.  Mr. Bubbers noted on 
 
            page 1 of said exhibit that there was at least 25 contacts 
 
            with the claimant from January 9, 1991 through March 22, 
 
            1993.
 
            
 
                 Joint exhibit 7 is a report from Robert J. Chesser, 
 
            M.D., who evaluated claimant who complained of bilateral 
 
            knee pain and low back pain.  This October 9, 1992 report 
 
            reflects Dr. Chesser's opinion that there is a 29 percent 
 
            impairment due to loss of range and an additional 10 percent 
 
            for chondromalacia, thereby, resulting in the 36 percent 
 
            permanent impairment to the right knee (Jt. Ex. 7, p. 3).  
 
            The doctor opines a 10 percent impairment due to claimant's 
 
            chondromalacia in the left knee and 28 percent due to loss 
 
            in range of motion resulting in a total of 35 percent 
 
            impairment to claimant's lower extremity.  The doctor felt 
 
            the injury of October 1990 would have aggravated a 
 
            preexisting condition relating back to the 1984 injury to 
 
            the right knee.  As to the left knee, the doctor said it was 
 
            difficult to say whether this actually was caused by the 
 
            fall on the scaffolding as he did have some knee pain prior 
 
            to this even though it was noted to be rather mild compared 
 
            to the present status.  The doctor said that if there was a 
 
            preexisting situation, he felt the fall would have 
 
            significantly contributed to claimant developing increased 
 
            knee pain and an increase in the chondromalacia 
 
            necessitating the arthroscopic procedure.  The doctor 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            further opined that based on claimant's condition as of the 
 
            time of the report, claimant would need a job which would 
 
            allow him to sit for 45 to 60 minutes and alternate 
 
            positions as needed so that he could stand for short 
 
            periods.  He would not be able to do any climbing, squatting 
 
            or kneeling.  The doctor felt there would be little to offer 
 
            claimant in regard to viable employment.
 
            
 
                 Joint exhibit 11 is a vocational assessment by 
 
            Christopher Yep, M.S., C.R.C.  On page 1, he sets his goal 
 
            as job goal identification based on current skills and job 
 
            availability followed by job placement.  It is obvious this 
 
            consultant did not get claimant a job nor does it look like 
 
            he explored options for claimant to return to work as far as 
 
            anything being successful or any evidence of exactly what 
 
            those particular job options are from the reality 
 
            standpoint.  Mr. Yep did indicate that claimant, having been 
 
            in the construction trade most of his life, does not have a 
 
            lot of transferable skills and may need to look at a 
 
            position that is either entry level or one that will offer 
 
            some form of on-the-job training.  The report does reflect 
 
            that the claimant wants to return to work.
 
            
 
                 Joint exhibit 13 is the records of Anthony D'Angelo, 
 
            D.O., who treated claimant in the latter part of 1986 and 
 
            around April 2, 1987, for his right knee complaints.  In his 
 
            records, he indicates on April 2, 1987, that claimant would 
 
            continue to have difficulty with his right knee but that 
 
            claimant can remain working and was to undergo physical 
 
            therapy to restore motion in his knee.
 
            
 
                 The November 27, 1992 notes of Dr. Irey, which is page 
 
            18 of deposition exhibit 1 of joint exhibit 14, opines that 
 
            claimant has a 30 percent impairment for his right knee 
 
            based on loss of motion and a 10 percent impairment based on 
 
            arthritis and a 30 percent impairment of his left knee based 
 
            on loss of motion and a 16 percent impairment to claimant's 
 
            back based on a 50 percent loss of motion.  Because of three 
 
            respective impairments to three different parts of 
 
            claimant's body, the doctor took the right knee which 
 
            converted to 15 percent impairment of the whole person and a 
 
            12 percent impairment of a whole person on converting the 
 
            left knee and a 16 percent body as a whole impairment as to 
 
            claimant's back and on the combined charts arrived at a 38 
 
            percent permanent impairment of the whole person and arrived 
 
            at the final physical impairment of claimant at 38 percent.  
 
            Dr. Chesser, on joint exhibit 7, page 4, using the combined 
 
            charts arrived at a 30 percent whole person impairment 
 
            placing a 14 percent right knee, 14 percent left knee and a 
 
            5 percent low back as the individual impairments before 
 
            using the combined charts.  It would appear to the 
 
            undersigned that Dr. Irey had a much more and detailed 
 
            contact with the claimant over a longer period of time as he 
 
            had testified that he first became acquainted with claimant 
 
            on October 31, 1984 (Jt. Ex. 14, p. 5).
 
            
 
                 Joint exhibit 15 is the Industrial Fitness Center's 
 
            notes and on page 9 it reflects that on October 20, 1992, 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            they planned to have claimant discontinue physical therapy 
 
            at that time.  It would seem from this report that claimant 
 
            was in a healing period trying to improve his overall 
 
            condition and trying to reach a maximum healing condition.
 
            
 
                 Joint exhibit 15 is a work capacity evaluation and on 
 
            October 25, 1989, on pages 31 and 32, there is indication in 
 
            the evaluation summary that whatever the cause, these 
 
            coefficients of variations suggest an inconsistent effort.  
 
            On page 36, which is part of the functional capacity 
 
            evaluation of January 6, 1992, there is a comment that 
 
            claimant scored high or equivocal 8 out of 18 tests 
 
            indicating that the tests may not necessarily be considered 
 
            valid.  It further indicates that this test data may not be 
 
            considered generally representative of this individual's 
 
            potential maximal functional ability.
 
            
 
                 There is no dispute that on October 22, 1990, claimant 
 
            had climbed a ladder ready to analyze the situation at a 
 
            customer of defendant employer concerning the removal of 
 
            asbestos.  Claimant, upon coming down from his inspection, 
 
            slipped on the ladder and his legs went into different 
 
            directions straddling the rung of the ladder and claimant 
 
            alleges injury.
 
            
 
                 Claimant has had considerable history of injuries and 
 
            problems particularly involving his right knee and has had 
 
            knee surgery on April 19, 1985 and February of 1989.  When 
 
            claimant fell on October 22, the first doctor he had gone to 
 
            indicated claimant should have right knee surgery right 
 
            away.  Claimant desired a second opinion and it appears the 
 
            second opinion agreed but claimant never did have that 
 
            surgery.
 
            
 
                 Claimant had incurred a 39 percent permanent impairment 
 
            rating after his April 19, 1985 surgery which resulted from 
 
            his 1984 injury.
 
            
 
                 Claimant has had problems with his left knee but the 
 
            undersigned finds that the greater weight of evidence 
 
            indicates that claimant's left knee problems really became 
 
            substantially exacerbated and ultimately resulted in knee 
 
            surgery on April 21, 1991, because of the October 22, 1990 
 
            injury.
 
            
 
                 The Second Injury Fund takes the position that 
 
            claimant's right and left knee alleged injuries occurred 
 
            simultaneously and therefore since it is a simultaneous 
 
            injury, they would not be involved in any award resulting 
 
            from the same.  That would not necessarily be true in light 
 
            of the fact that claimant had a prior right knee injury and 
 
            there could be a situation which would still involve the 
 
            Second Injury Fund.
 
            
 
                 The undersigned believes the Second Injury Fund issue 
 
            is moot under all the circumstances of this case in light of 
 
            the fact that we do now have an issue of a back injury.  The 
 
            undersigned finds that the greater weight of evidence 
 
            indicates that claimant's back condition and resulting 
 
            impairment was a result of the October 22, 1990 work injury.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 Defendant employer contends that claimant had 
 
            preexisting problems and that those problems are what have 
 
            resulted only in claimant's current medical conditions and 
 
            impairments and any disability.
 
            
 
                 The undersigned finds the greater weight of medical 
 
            testimony and evidence and the record herein indicates that 
 
            claimant did, in fact, incur an injury to his back on 
 
            October 22, 1990, and that on that date claimant also 
 
            incurred an injury to his right knee that substantially and 
 
            materially aggravated a preexisting condition in his right 
 
            knee that has resulted in claimant incurring a substantial 
 
            impairment.
 
            
 
                 Dr. Irey opined claimant had 37 percent impairment of 
 
            his right lower extremity as a result of his right knee 
 
            injury.  He opined claimant had a 30 percent impairment to 
 
            his left knee.  The doctor further opined claimant had a 15 
 
            percent impairment to his body as a whole as a result of his 
 
            back injury.  He opined claimant had a permanent partial 
 
            impairment to his body as a whole in total considering all 
 
            of the alleged injuries of 38 percent (Jt. Ex. 14, dep. 1, 
 
            p. 18).
 
            
 
                 Dr. Chesser, on page 3 of joint exhibit 7, opines 
 
            claimant had a 36 percent impairment to his right knee, a 35 
 
            percent to the left and 5 percent to the back.  His combined 
 
            body as a whole impairments using the combined charts 
 
            resulted in a 30 percent body as a whole impairment.  The 
 
            undersigned believes the respective doctors did use the 
 
            combined charts properly and under the circumstances in this 
 
            case in which the undersigned has found that all three parts 
 
            of the body were affected and that using the combined charts 
 
            was proper by the respective doctors.
 
            
 
                 Dr. Chesser was rendering his report of October 9, 
 
            1992, it appears, on a one-time evaluation of claimant.  Dr. 
 
            Irey has had a long-standing acquaintance with the claimant 
 
            as indicated in his deposition on page 5 of joint exhibit 
 
            14.  He has had contact with the claimant since October 31, 
 
            1984, and has seen claimant through various injuries.
 
            
 
                 There is no medical testimony that actually apportions 
 
            out any prior impairments that preexisted as relating to 
 
            claimant's current impairments.  Claimant did have a 39 
 
            percent rating pursuant to an October 1984 injury in which 
 
            he had surgery in 1985.  Claimant was still having problems 
 
            in 1989 with his knees, but the fact is he was working and 
 
            able to work and was hired to do this job and apparently was 
 
            able to climb ladders and perform the strenuous work that it 
 
            appears this job would entail.  There was never any rating 
 
            as to claimant's left knee and it appears he strengthened 
 
            and overcame some of his difficulties with his right knee.
 
            
 
                 Claimant in his testimony seems to have been motivated 
 
            in that he tried on different occasions to get himself back 
 
            into condition notwithstanding his injuries and it appears 
 
            his effort did enable him to seek employment and work beyond 
 
            any restrictions.  Defendants are obviously disturbed in 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            that claimant did not even work a day before he got injured.  
 
            It appears he wasn't working at other jobs very long when he 
 
            incurred an injury.  The undersigned feels this is a 
 
            coincidence.  No one will convince the undersigned that 
 
            claimant intentionally attempted to become injured.
 
            
 
                 The parties had agreed that claimant was off work 
 
            beginning October 23, 1990 through October 28, 1992,  and 
 
            apparently this stipulation was additionally influenced by 
 
            Dr. Irey's October 26, 1992 letter in which he indicated 
 
            claimant had reached maximum medical improvement.  This is 
 
            an unnumbered exhibit on Dr. Irey's deposition, joint 
 
            exhibit 14.  Defendants had actually paid 105.429 weeks of 
 
            healing period benefits but, of course, payment is not an 
 
            admission of liability.  They also agree that if there were 
 
            any permanent disability benefits they would begin October 
 
            29, 1992.
 
            
 
                 The undersigned finds there is causal connection as to 
 
            claimant's weeks he was off and the healing period involved 
 
            herein and that claimant is entitled to the 105.429 weeks of 
 
            healing period benefits and that the undersigned finds that 
 
            claimant did incur an injury that arose out of and in the 
 
            course of his employment when on October 22, 1990, he 
 
            slipped and fell down a ladder and his legs got entrapped in 
 
            the rung of the ladder.
 
            
 
                 The undersigned further finds that claimant has 
 
            incurred substantial loss of earning capacity and that 
 
            claimant has substantial body as a whole impairment and 
 
            restrictions that would, as a result of claimant's October 
 
            22, 1990 injury, result in claimant being relegated to 
 
            sedentary type of work with limitations as to the extent of 
 
            sitting and standing.  There have been two 
 
            rehabilitation-type consultants involved and neither has 
 
            been able to find claimant a job and indicates claimant's 
 
            lack of a possibility of getting employment.  This thought 
 
            is also echoed as to the medical testimony on claimant's 
 
            ability to do or inability to do certain things because of 
 
            his restrictions and medical condition.  Although the 
 
            claimant had preexisting injuries, claimant was doing his 
 
            job even though he had been at work only a few hours and 
 
            that it is obvious he is now unable to do the job that he 
 
            was performing and hired to perform on October 22, 1990, but 
 
            at this time obviously unable to perform any other job that 
 
            he had done in the past.
 
            
 
                 After considering claimant's age, prior and post-injury 
 
            medical and work history, transferable skills, intelligence, 
 
            education, location of his injuries, severity, and healing 
 
            period, motivation, functional impairments, restrictions and 
 
            any other element that is considered to determine one's 
 
            industrial disability, the undersigned finds claimant is 
 
            permanently and totally disabled as a result of the October 
 
            22, 1990 injury and that said injury substantially and 
 
            materially aggravated, lighted up and heightened claimant's 
 
            preexisting conditions to his scheduled members and any back 
 
            injury or condition.
 
            
 
                 There has been no apportioning out of any prior 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            disability other than claimant did in 1985 have 39 percent 
 
            impairment to his right knee.  The undersigned finds that in 
 
            light of the finding of claimant being totally and 
 
            permanently disabled, there would be no apportionment out of 
 
            that disability to a scheduled member.  Also, there is no 
 
            evidence of what impairment claimant had as of October 22, 
 
            1990, resulting from his October 1984 knee injury.
 
            
 
                 The undersigned further finds that as to the Second 
 
            Injury Fund, the Second Injury Fund is not liable in this 
 
            matter for the reason that the injury of October 22, 1990 in 
 
            and of itself caused claimant's permanent total disability.  
 
            The undersigned finds that there is insufficient evidence to 
 
            show that if there had not been the first injury in 1984, 
 
            claimant would not have been totally and permanently 
 
            disabled as a result of claimant's October 22, 1990 injury.
 
            
 
                 The parties are disputing the rate at which benefits 
 
            should be paid if any are awarded.  Claimant contends that 
 
            he was making $11 per hour for a six day week which would 
 
            amount to 72 hours a week and result in gross weekly income 
 
            of $792, which would lead to a weekly rate of $481.68.  
 
            Defendants contend that claimant was making $11 an hour on 
 
            eight hours a day five days a week which would result in a 
 
            gross weekly wage of $440 and a rate of $284.46.  There is 
 
            no dispute in the hourly rate and there is no dispute that 
 
            claimant was paid 12 hours of work at the $11 rate on the 
 
            date of his injury and that this date of his injury was the 
 
            only day claimant worked and he only worked four hours that 
 
            day even though he was paid for 12 hours.  There is no other 
 
            evidence of claimant's income.  We have only claimant's 
 
            testimony.  Defendants do not have any contrary evidence 
 
            other than there is joint exhibit 16 which indicates that 
 
            which defendants filled out on April 8, 1993, the Thursday 
 
            before the Monday hearing of this case in which they 
 
            indicate gross weekly wages of $440.
 
            
 
                 It appears to the undersigned that what claimant was 
 
            actually paid based on an hourly rate paid weekly is what 
 
            should determine the rate.  Actions speak louder than words 
 
            or format as joint exhibit 16 was prepared by the employer 
 
            just prior to the hearing which was approximately two and 
 
            one-half years after the injury.  It is undisputed that 
 
            claimant was paid for 12 hours.  If, in fact, claimant was 
 
            paid on the basis of an eight hour day, then why would an 
 
            employer pay an employee for 12 hours instead of 8 hours 
 
            when he only worked four hours before he was injured.  There 
 
            is no other evidence to dispute the claimant's six days 
 
            versus employer's five day contention that claimant worked 
 
            per week.  It is understandable to the undersigned that with 
 
            the nature of this business and asbestos removal that there 
 
            could be more than five days per week worked because of the 
 
            nature of the job, the nature of the work and obviously the 
 
            effect on a particular company who was having the asbestos 
 
            removed as far as getting in and getting out.  Defendants 
 
            could have had a witness testify if they truly believe 
 
            claimant was to work a five-day week, eight hours per day.  
 
            Defendants knew that the rate of benefits was a highly 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            contested issue.  The undersigned therefore finds that 
 
            claimant's weekly gross weekly was $792 per week which 
 
            results in a rate of $481.68.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury on October 
 
            12, 1990, which arose out of and in the course of  
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 12, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is 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, 815 
 
            (1962).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. 
 
            United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251.  Barton v. 
 
            Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up tes & the full day of the date of injury.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record shows that 
 
            defendants previously paid one hundred five point four two 
 
            nine (105.429) weeks at two hundred eighty-four and 46/100 
 
            dollars ($284.46).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Ms. Carole J Anderson
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            111 E Third St
 
            Davenport IA 52801-1987
 
            
 
            Mr James F Christensen
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           5-1100; 5-1108; 5-1804
 
                                           5-3002; 5-3200
 
                                           Filed May 14, 1993
 
                                           Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL CONRAD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 962663
 
            ENVIRONMENTAL MANAGEMENT      :
 
            SERVICES,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1804
 
            Found claimant permanently and totally disabled as a result 
 
            of an October 22, 1990 injury found to have arose out of and 
 
            in the course of claimant's employment and found to have 
 
            caused claimant's total disability.
 
            
 
            5-3002
 
            Rate determined to be $481.68 instead of defendants' 
 
            contention of $284.46.
 
            
 
            5-3200
 
            Found Second Injury Fund not liable to claimant for any 
 
            benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            SHELLIE KISSNER (MRS. THOMAS),:
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 963058
 
            COMPOSITE TECHNOLOGIES,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 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 August 28, 1991 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            Claimant's Exhibit A was properly excluded.  The hearing 
 
            assignment order dated July 17, 1991 required that all 
 
            exhibits be served on the opposing party no later than 15 
 
            days prior to the date of the hearing.  Claimant's Exhibit A 
 
            was not served until four days prior to the hearing which 
 
            was less than 15 days before the August 17, 1991 hearing.  
 
            The exhibit itself is irrelevant for purposes of determining 
 
            whether the decedent may or may not have been a full-time 
 
            employee for workers' compensation purposes.  The decedent's 
 
            alleged status for purposes of entitlement to life insurance 
 
            benefits is irrelevant for purposes of determining the rate 
 
            of compensation for workers' compensation benefits.
 
            Claimant seeks weekly benefits pursuant to Iowa Code section 
 
            85.31 for the death of her spouse.  The rate of compensation 
 
            should be computed under Iowa Code section 85.36(10) for 
 
            this claimant as the decedent was a part-time employee at 
 
            the time of his death.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles Deppe
 
            Mr. Douglas Cook
 
            Attorneys at Law
 
            P.O. Box 86
 
            Jewell, Iowa 50130
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-3001
 
            Filed February 28, 1992
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            SHELLIE KISSNER (MRS. THOMAS),:
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 963058
 
            COMPOSITE TECHNOLOGIES,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-3001
 
            Although a college student was putting in over 40 hours a 
 
            week during the summer preceding his death, he reduced his 
 
            hours while attending fall clases at the actual time of his 
 
            death.  Although it was found that the decedent intended on 
 
            working full time after the first few weeks, he was viewed 
 
            as only part-time at the time of his death and the rate was 
 
            computed accordingly.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHELLIE KISSNER (MRS. THOMAS),:
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 963058
 
            COMPOSITE TECHNOLOGIES,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Shellie 
 
            Kissner, claimant, against Composite Technologies, employer 
 
            (hereinafter referred to as Composite), and United Fire & 
 
            Casualty Company, insurance carrier, defendants, for work
 
            ers' compensation benefits as a result of the death of 
 
            Thomas Kissner on September 14, 1990.  On August 19, 1991, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On September 14, 1990, Thomas Kissner died from 
 
            injuries which arose out of and in the course of his employ
 
            ment with Composite.
 
            
 
                 2.  In computing claimant's rate of weekly compensa
 
            tion, claimant is entitled to a rate of compensation using 
 
            marital status and two exemptions.  What is in dispute is 
 
            the gross weekly rate.
 
            
 
                 3.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the proper rate of weekly compen
 
            sation.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the employ
 
            ment of her late husband.  From her demeanor while testify
 
            ing, claimant is found credible.
 
            
 
                 At the time of his death on September 14, 1990, Thomas 
 
            Kissner (hereinafter referred to as Tom), was married to 
 
            claimant, Shellie Kissner.  Prior to his death, Tom and 
 
            Shellie had no children and Tom had no other dependants.
 
            
 
                 Tom was a college student at the time of his death.  
 
            When he died, he had only just started the fall quarter at 
 
            Iowa State University in Ames, Iowa.  Tom attended only two 
 
            and a half weeks of classes prior to his death.  Tom was a 
 
            full time student and was taking ten courses at the time of 
 
            his death.  Prior to the summer of 1990, Tom, along with 
 
            Shellie, had attended Simpson College in Indianola, Iowa.  
 
            For the 12 months preceding his death, Tom worked for four 
 
            employers.  The parties stipulated in the prehearing report 
 
            that claimant earned $72.03 from employment at Simpson 
 
            College, $1,815.75 from a business called Heartland and a 
 
            total of $2,947.45 from defendant Composite.  Claimant tes
 
            tified that Tom also worked in a bar in Indianola but she 
 
            could not recall what he had earned.
 
            
 
                 Tom's employment with Composite began in June 1990.  
 
            During that summer, he worked on average more than 40 hours 
 
            a week at the rate of $5.00 per hour with time and a half 
 
            for overtime.  A normal work week at Composite for other 
 
            employees was 40 hours according to claimant's testimony.
 
            
 
                 According to Tom's time cards at Composite, he worked 
 
            eight or more hours per day prior to August 27, 1990.  
 
            Between August 27 and his death on September 14, Tom worked 
 
            from four to five hours per day.  This reduction in hours 
 
            occurred when others performing similar work at the plant 
 
            were working a normal 40 hour work week.
 
            
 
                 Claimant explained that Tom had an arrangement with 
 
            Composite while he was attending school that he would only 
 
            put in what hours he could given his class schedule.  
 
            Claimant states that Tom intended on eventually working 40 
 
            hours a week at Composite after the initial few weeks at 
 
            school.  His schedule permitted uninterrupted work time two 
 
            days a week.  Claimant explained that she and Tom had only 
 
            recently been married and that they needed the money.  
 
            Claimant was working at Composite as well at the time of 
 
            Tom's death.
 
            
 
                 Although claimant's testimony with reference to Tom's 
 
            intention to work full time later on in the school year is 
 
            accepted as true, Tom's weekly earnings at the time of his 
 
            death were less than the earnings of a regular full time 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            worker at Composite.  Clearly on August 27, 1990, there was 
 
            a de facto change in the number of work hours at Composite 
 
            and this was due to his attendance at classes at Iowa State.
 
            
 
                 One fiftieth of claimant's earnings from all employment 
 
            in the 12 calendar months immediately preceding his death is 
 
            $96.70.  This was the same amount of gross weekly earnings 
 
            that was used by defendant's insured to calculate claimant's 
 
            rate of compensation.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant is seeking benefits as a result of the 
 
            death of her husband.  Such benefits are available under 
 
            Chapter 85, Code of Iowa, because a work injury is defined 
 
            in the statute to include death as a result of an injury.  
 
            Iowa Code section 85.61(5)(a).  The parties stipulated that 
 
            the death was work related.  In such cases, the employer is 
 
            libel for the expenses of the deceased employee's last ill
 
            ness, Iowa Code sections 85.27 and 85.29; for burial 
 
            expenses of decedent not to exceed the sum of $1,000, Iowa 
 
            Code section 85.2A; and, to the Second Injury Fund in the 
 
            amount of $4,000, if the employee died with dependants or 
 
            $15,000 if no dependants survive the deceased employee, Iowa 
 
            Code section 85.65.  Secondly, weekly benefits are also 
 
            available from the employer for surviving dependants of the 
 
            deceased employee.  Such benefits are paid in the same 
 
            amount and manner as work injuries accept that the benefits 
 
            are paid to the surviving spouse for life or until remar
 
            riage, Iowa Code section 84.3.  A surviving spouse is con
 
            clusively presumed dependant unless there has been a willful 
 
            desertion of decedent by the spouse.  Iowa Code section 
 
            85.41(1), 85A.6.
 
            
 
                 In the case sub judice, the only dispute was the proper 
 
            rate of compensation.  The dispute centers around the alter
 
            native methods of computation set forth in Iowa Code section 
 
            85.36.  With reference to computing rate of compensation, 
 
            the introductory paragraph of Iowa Code section 85.36 states 
 
            as follows:
 
            
 
                 Weekly earnings means gross salary, wages, or 
 
                 earnings of an employee to which such employee 
 
                 would have been entitled had the employee worked 
 
                 the customary hours for the full pay period in 
 
                 which the employee was injured...
 
            
 
                 Thereafter, various subsections are contained in Iowa 
 
            Code section 85.36 which describe numerous alternative meth
 
            ods to arrive at gross weekly earnings.  In the case at bar, 
 
            many subsections could apply.  As claimant's husband 
 
            received his check every two weeks, subparagraph 2 may apply 
 
            which divides by 2 the biweekly pay.  As claimant's husband 
 
            was paid on an hourly rate, Iowa Code section 85.36(6) can 
 
            be utilized which would average the earnings over the last 
 
            13 weeks.
 
            
 
                 However, it was found that claimant's husband at the 
 
            time of his death changed his employment status from full 
 
            time to part-time by working less than the normal 40 hours 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            per week for almost three weeks prior to his death.  
 
            Although it may have been his intent to work more hours 
 
            later on and skip classes to accomplish this, claimant's 
 
            husband was customarily working less than 40 hours a week at 
 
            the time of his death.  As a matter of law, it is concluded 
 
            that the rate of compensation should be computed under Iowa 
 
            Code section 85.36(10) which annualizes over 50 weeks income 
 
            from all sources over 12 months for "so-called" part-time 
 
            employees.  The choice of this code section over the other 
 
            subparagraphs is consistent with the intent as set forth in 
 
            the introductory paragraph of Iowa Code section 85.36.  As 
 
            the use of any other method of compensation would not result 
 
            in a reasonable approximation of the workers' earnings dur
 
            ing the week of his death.
 
            
 
                 It was found that one fiftieth of the total earnings 
 
            over the preceding 12 calendar months was $96.70.  Utilizing 
 
            the commissioner's rate booklet for an injury or death in 
 
            September 1990, and the parties' stipulation as to marital 
 
            status and exemptions, claimant's rate of compensation shall 
 
            be $89.58.  This is the amount that she is currently being 
 
            paid by the defendant insurance company.
 
            
 
                 As claimant's case was at least arguable, she will be 
 
            awarded costs.
 
            
 
                                      order
 
            
 
                 1.  Defendants shall pay to claimant weekly death bene
 
            fits at the rate of eighty-nine and 58/l00 dollars ($89.58) 
 
            per week from September 14, 1990, until her death or remar
 
            riage, whichever occurs first.  Defendants shall receive 
 
            credit against this award for all benefits previously paid.
 
            
 
                 2.  If not already done so, defendants shall pay to 
 
            claimant the expenses of her husband's last illness and 
 
            burial expenses up to a maximum of one thousand and no/l00 
 
            dollars ($1000.00).
 
            
 
                 3.  Defendants shall pay to the Treasurer of the State 
 
            of Iowa as custodian of the Second Injury Fund the sum of 
 
            four thousand and no/l00 dollars ($4,000.00).
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles Deppe
 
            Attorney at Law
 
            P O Box 86
 
            Jewell  IA  50130
 
            
 
            Mr. Robert C. Landess
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-3001
 
                           Filed August 28, 1991
 
                           LARRY P. WALSHIRE
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHELLIE KISSNER (MRS. THOMAS),:
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 963058
 
            COMPOSITE TECHNOLOGIES,       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-3001
 
            Although a college student was putting in over 40 hours a 
 
            week during the summer preceding his death, he reduced his 
 
            hours while attending fall classes at the actual time of his 
 
            death.  Although it was found that the decedent intended on 
 
            working full time after the first few weeks, he was viewed 
 
            as only part-time at the time of his death and the rate was 
 
            computed accordingly.