Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JOHN WAYNE BUTCHER II,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :       File No. 966329
 
            NINJA, INC. dba ZAZOO THE,      :
 
            BEACH CLUB,      :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            AUTO OWNERS INSURANCE CO.,      :
 
                        :
 
                 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.
 
            issue
 
            The issue on appeal is:  The extent of claimant's healing 
 
            period.
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed April 27, 1992 are adopted as set forth 
 
            below.  Segments designated by brackets ([ ]) indicate 
 
            language that is in addition to the language of the proposed 
 
            agency decision.
 
            
 
                 Claimant is 31 years of age.  He is a high school 
 
            graduate.  He has completed one semester of college at 
 
            Waldorf College.  Currently, claimant is enrolled at 
 
            Kirkwood Community College.
 
            
 
                 Since his high school graduation, claimant has held a 
 
            variety of positions in both Iowa and California.  He has 
 
            sold insurance, driven a beer truck and worked as a 
 
            bartender and lounge manager in several establishments.
 
            
 
                 While claimant was living in California, he sustained a 
 
            work-related injury to his left shoulder.  Surgery was 
 
            performed for a torn rotator cuff.  Subsequent to the 
 
            surgery, claimant returned to Iowa.  He sought additional 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            treatment at the University of Iowa.  The physicians 
 
            diagnosed claimant's condition as:  "Left shoulder posterior 
 
            subluxation, mild impingement, rotator cuff weakness 
 
            particularly in the super spinatus tendon."
 
            
 
                 When claimant was seven years old, he was involved in 
 
            an incident where he had a metal piece trapped in his right 
 
            eye.  Surgery was performed in the form of a cornea 
 
            transplant.
 
            
 
                 Claimant testified he experienced difficulties with his 
 
            right eye from the date of that injury.  He stated he 
 
            experienced blurred vision, problems with depth perception 
 
            as well as problems with his peripheral vision.
 
            
 
                 Claimant also testified that he had no problems with 
 
            his left eye prior to the date of this work injury, August 
 
            24, 1990.
 
            
 
                 At the time of this work injury, claimant was working 
 
            at defendant-employer's establishment as a "bouncer."  His 
 
            duties included walking around the premises, socializing 
 
            with the patrons, cleaning, picking up glasses, watching for 
 
            altercations, and interceding in brawls.
 
            
 
                 Claimant stated there were times when he was 
 
            "physically active."  Such a "physically active" period 
 
            occurred on the date in question.  A patron was pushing and 
 
            shoving the bar manager when claimant approached.  Claimant 
 
            pushed the patron out the door.  Two other bystanders joined 
 
            the unruly patron and they proceeded to engage claimant in 
 
            the stereotypical "barroom brawl."  Punches were hurled back 
 
            and forth.  Ultimately, one of the patrons struck claimant 
 
            on the corner of his left eye.
 
            
 
                 Claimant described the sensation of "having his eye 
 
            pushed."  He testified his eye was bleeding, there were 
 
            stars and he was unable to see.  Claimant sought medical 
 
            treatment for his left eye on that date from C. A. 
 
            Hendricks, M.D.  In his report of November 20, 1990, Dr. 
 
            Hendricks opined:
 
            
 
                 As requested I am enclosing a copy of my record on 
 
                 Wayne Butcher.  It maybe somewhat difficult to 
 
                 read so I will dictate a letter which essentially 
 
                 translates what is in the chart.
 
            
 
                 Mr. Butcher was seen by me on 8-24-90.  He stated 
 
                 that he had been hit in the left eye with a fist 
 
                 the previous night.  He stated that he saw a 
 
                 purple spot in the left eye with a ring around it 
 
                 and an orange background.  He has a history of an 
 
                 old injury to the right eye.  Evidently the right 
 
                 eye had an intraocular foreign body in the past.  
 
                 His vision without glasses was 20/400 in either 
 
                 eye.  The left eye had a clear cornea and anterior 
 
                 chamber and I dilated the eye.  I felt the left 
 
                 eye had a choroidal rupture and while examining 
 
                 the left eye I also looked at the right eye which 
 
                 had a partial cataract.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Because of the extent and nature of the injury to 
 
                 the left eye I referred him to Dr. Steve Jacobs 
 
                 who has his independent practice but we share the 
 
                 same waiting room.  Steve has had considerable 
 
                 training in retinal work and is one of two 
 
                 ophthalmologists in town doing retinal surgery at 
 
                 this time.  I would suggest you request 
 
                 information from him at this same address. I'm 
 
                 sure he can proceed with the progress of Mr. 
 
                 Butcher's injury.
 
            
 
            (Joint Exhibit 2, page 00014)
 
            
 
                 Claimant saw Steven J. Jacobs, M.D.  Dr. Jacobs 
 
            authored a report dated June 13, 1991.  In his report he 
 
            opined that:
 
            
 
                 My initial examination showed an uncorrected 
 
                 visual acuity of 20/300 OD and 20/60- OS.  Slit 
 
                 lamp exam showed an old stellate corneal scar in 
 
                 the optical axis and an inferior cortical cataract 
 
                 OD.  The slit lamp exam was normal OS.  Dilated 
 
                 fundus exam OS showed a large subretinal 
 
                 hemorrhage in the macula.  On sequential 
 
                 observation the hemorrhage began to clear in the 
 
                 macula and revealed a choroidal rupture nasal to 
 
                 the optic nerve head.  He was last seen on January 
 
                 6, 1991 at which time his visual acuity was 20/100 
 
                 in the left eye.
 
            
 
                 My impression is that John Butcher has amblyopia 
 
                 OD as a result of a childhood injury and severe 
 
                 loss of vision in the left eye as a result of a 
 
                 subretinal hemorrhage due to a traumatic choroidal 
 
                 rupture.  I think his overall prognosis of 
 
                 recovery in the future is poor and that he should 
 
                 be considered disabled on the basis of his vision.
 
            
 
            (Jt. Ex. 2, p. 00025)
 
            [Claimant was seen by Dr. Jacobs for the first time on 
 
            August 29, 1990.  Dr. Jacobs next saw claimant on September 
 
            7, 1990 and noted no change in claimant and indicated that 
 
            claimant's visual acuity on that date was 20/200 and 20/70-.  
 
            He next saw claimant on October 9, 1990 and noted no change 
 
            and visual acuity 20/200.  He again saw claimant on November 
 
            27, 1990 and noted no improvement and visual acuity as 
 
            20/200 and 20/60.  He last saw claimant on July 17, 1991 and 
 
            appears to have rated the visual acuity as 20/400 and 
 
            20/70.]
 
            
 
                 Claimant also sought treatment at the Illinois Eye 
 
            Clinic on August 27, 1990.  He was evaluated but claimant 
 
            sought additional treatment at the University of Iowa.
 
            
 
                 At the University of Iowa, claimant was treated by Jay 
 
            H. Krachmer, M.D., a board certified ophthalmologist who is 
 
            a professor in the Department of Ophthalmology at the 
 
            University of Iowa.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Dr. Krachmer examined claimant's eyes on several 
 
            occasions, including August 1, 1991.  On that date, claimant 
 
            was complaining of problems with both eyes.  (Jt. Ex. 1, p. 
 
            5, lines 18-25)
 
            
 
                 With respect to the left eye, Dr. Krachmer testified he 
 
            found:
 
            
 
                 Q.   Doctor, referring to the left eye, what did 
 
                    your        examination reveal?
 
            
 
                 A.   The left eye, his visual acuity was 20/25 
 
                      minus
 
            1.  The cornea on the left was normal.  He 
 
            did not have a cataract on the left.  His 
 
            intraocular pressure was normal on the left.  
 
            But what he did have was a scar in the back 
 
            of the right eye -- of the left eye in the 
 
            retina, a chorioretinal scar because the scar 
 
            involved the retina and choroid.
 
            
 
                 Q.   Doctor, a couple of questions, definitions.  
 
                 What        do you mean when you say 20/25 minus 
 
                 1, what's the    significance of that?
 
            
 
                 A.   That means that he read all the letters on 
 
                    the         visual acuity chart, the 20/25 
 
                    line, except for           one.  I should add 
 
                    that he also -- we noted that        his eyes 
 
                    were not perfectly aligned.  In other          
 
                    words, he -- there was a small misalignment of 
 
                    the    eyes, which I believe we noted on 
 
                    follow-up             examinations.  But that 
 
                    was the major part of the  examination.
 
            
 
                 Q.   Doctor, the condition that you described 
 
                      concerning the scar on the back of the retina 
 
                      of the left eye, is that a condition that's a 
 
                      result of the injury that he described to you 
 
                      as occurring on August 24, 1990?
 
            
 
                 A.   I don't have the date of the injury, but that 
 
                 was    approximately what the date should be.  And 
 
                 the         scar is consistent with that kind of 
 
                 injury, and           so I would have to say from 
 
                 the history, I would            assume that that 
 
                 was a result of that injury.
 
            
 
            (Jt. Ex. 1, p. 6, l. 17 thru p. 7, l. 23)
 
            
 
                 Dr. Krachmer also examined claimant's right eye.  
 
            Surgery was proposed for the right eye only.  Dr. Krachmer 
 
            performed "a penetrating Keratolplasty and extracapsular 
 
            cataract extraction with a posterior chamber intraocular 
 
            lens."
 
            
 
                 As of March 2, 1992, Dr. Krachmer opined that claimant 
 
            had sustained the following loss relative to his right eye:
 
            
 
                 2.  Visual acuity 20/160 right eye only 72% loss
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            3.  Visual acuity 2/40 right eye only 15% loss
 
            4.  Visual acuity 20/l00 right eye only 50% loss.
 
            
 
                 The surgeon testified in his deposition of February 21, 
 
            1992, that claimant's right eye had not stabilized and that 
 
            claimant would reach maximum medical improvement in 
 
            approximately one to one and one-half years.
 
            
 
                 At the time of the hearing, claimant was enrolled as a 
 
            student at Kirkwood Community College.  He testified that he 
 
            hopes to achieve a bachelors' degree in business.
 
            conclusions of law
 
            
 
                 Iowa Code section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement from the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
            interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
            (Iowa 1986).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            The only issue on appeal is the extent of claimant's healing 
 
            period.  It is noted that while defendant employer and 
 
            insurance company originally offered to stipulate to a date 
 
            the healing period ended, a reading of the transcript on 
 
            that offer clearly indicates that the issue of healing 
 
            period was not stipulated.  (See transcript, page 5, lines 
 
            9-10.)
 
            Dr. Jacobs' records will be relied upon to determine the 
 
            extent of the healing period.  He saw claimant most often 
 
            and rated claimant's vision at least five times in less than 
 
            a year's time beginning five days after the injury.
 
            Beginning on September 7, 1990 Dr. Jacobs generally saw no 
 
            improvement in claimant's vision.  The test results remained 
 
            essentially the same from September 7, 1990 forward.  
 
            Therefore, claimant's maximum medical improvement for his 
 
            left eye occurred on September 7, 1990.  Claimant's healing 
 
            period ended on September 7, 1990.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            order
 
            THEREFORE, it is ordered:
 
            
 
                 That defendant-Second Injury Fund is dismissed as a 
 
            party.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 That defendants-employer and insurance carrier, are to 
 
            pay claimant healing period benefits at the stipulated rate 
 
            of eighty-five and 25/l00 dollars ($85.25) per week for the 
 
            period from August 24, 1990 through September 7, 1990.
 
            
 
                 That defendants-employer and insurance carrier, are to 
 
            pay unto claimant twenty (20) weeks of permanent partial 
 
            disability benefits at the stipulated rate of eighty-five 
 
            and 25/l00 dollars ($85.25) per week commencing on September 
 
            8, 1990.
 
            
 
                 That defendants-employer and insurance carrier, are to 
 
            pay medical benefits in the sum of two hundred thirteen and 
 
            60/l00 dollars ($213.60) as aforementioned and pursuant to 
 
            Iowa Code section 85.27.
 
            
 
                 That accrued benefits are to be paid in a lump sum 
 
            together with statutory interest at the rate of ten percent 
 
            (10%) per year pursuant to Iowa Code section 85.30.
 
            
 
                 That defendants, employer and insurance company, shall 
 
            pay the costs of this matter including transcription of the 
 
            hearing and shall reimburse claimant for the filing fee if 
 
            previously paid by claimant.
 
            That defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James E. Shipman
 
            Mr. Matthew J. Petrzelka
 
            Attorneys at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., STE 111
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1802
 
            Filed January 26, 1993
 
            Byron K. Orton
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            JOHN WAYNE BUTCHER II,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :       File No. 966329
 
            NINJA, INC. dba ZAZOO THE,      :
 
            BEACH CLUB,      :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            AUTO OWNERS INSURANCE CO.,      :
 
                        :
 
                 Insurance Carrier,    :
 
                        :
 
            and         :
 
                        :
 
            SECOND INJURY FUND OF IOWA,     :
 
                        :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1802
 
            Claimant's healing period for an eye injury ended when 
 
            doctor who had most contact with claimant indicated that 
 
            there was generally no further improvement and the visual 
 
            activity remained unchanged.  The doctor relied upon first 
 
            saw claimant five days after the injury and tested him five 
 
            times in less than a year.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN WAYNE BUTCHER II,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            NINJA, INC. dba ZAZOO THE     :         File No. 966329
 
            BEACH CLUB,                   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            AUTO OWNERS INSURANCE CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant against his former employer, Zazoo Beach Club, 
 
            and its insurance carrier, Auto Owners Insurance Company, 
 
            defendants.  Additionally, claimant filed an action against 
 
            the Second Injury Fund of Iowa.  The case was heard on March 
 
            10, 1992, in Cedar Rapids, Iowa at the Linn County 
 
            Courthouse.  The record consists of the testimony of 
 
            claimant.  The record also consists of the following 
 
            exhibits:  claimant's exhibits 1-3; joint exhibits 1 and 2; 
 
            and The Fund's exhibit C.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the injury of August 24, 1990 
 
            and the alleged disability; 2) whether claimant is entitled 
 
            to temporary disability/healing period benefits or permanent 
 
            disability benefits; 3) whether claimant is entitled to 
 
            medical benefits pursuant to section 85.27; and 4) whether 
 
            claimant is entitled to benefits pursuant to the Second 
 
            Injury Fund of Iowa.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 31 years of age.  He is a high school 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            graduate.  He has completed one semester of college at 
 
            Waldorf College.  Currently, claimant is enrolled at 
 
            Kirkwood Community College.
 
            
 
                 Since his high school graduation, claimant has held a 
 
            variety of positions in both Iowa and California.  He has 
 
            sold insurance, driven a beer truck and worked as a 
 
            bartender and lounge manager in several establishments.
 
            
 
                 While claimant was living in California, he sustained a 
 
            work-related injury to his left shoulder.  Surgery was 
 
            performed for a torn rotator cuff.  Subsequent to the 
 
            surgery, claimant returned to Iowa.  He sought additional 
 
            treatment at the University of Iowa.  The physicians 
 
            diagnosed claimant's condition as:  "Left shoulder posterior 
 
            subluxation, mild impingement, rotator cuff weakness 
 
            particularly in the super spinatus tendon."
 
            
 
                 When claimant was seven years old, he was involved in 
 
            an incident where he had a metal piece trapped in his right 
 
            eye.  Surgery was performed in the form of a cornea 
 
            transplant.
 
            
 
                 Claimant testified he experienced difficulties with his 
 
            right eye from the date of that injury.  He stated he 
 
            experienced blurred vision, problems with depth perception 
 
            as well as problems with his peripheral vision.
 
            
 
                 Claimant also testified that he had no problems with 
 
            his left eye prior to the date of this work injury, August 
 
            24, 1990.
 
            
 
                 At the time of this work injury, claimant was working 
 
            at defendant-employer's establishment as a "bouncer."  His 
 
            duties included walking around the premises, socializing 
 
            with the patrons, cleaning, picking up glasses, watching for 
 
            altercations, and interceding in brawls.
 
            
 
                 Claimant stated there were times when he was 
 
            "physically active."  Such a "physically active" period 
 
            occurred on the date in question.  A patron was pushing and 
 
            shoving the bar manager when claimant approached.  Claimant 
 
            pushed the patron out the door.  Two other bystanders joined 
 
            the unruly patron and they proceeded to engage claimant in 
 
            the stereotypical "barroom brawl."  Punches were hurled back 
 
            and forth.  Ultimately, one of the patrons struck claimant 
 
            on the corner of his left eye.
 
            
 
                 Claimant described the sensation of "having his eye 
 
            pushed."  He testified his eye was bleeding, there were 
 
            stars and he was unable to see.  Claimant sought medical 
 
            treatment for his left eye on that date from C. A. 
 
            Hendricks, M.D.  In his report of November 20, 1990, Dr. 
 
            Hendricks opined:
 
            
 
                 As requested I am enclosing a copy of my record on 
 
                 Wayne Butcher.  It maybe somewhat difficult to 
 
                 read so I will dictate a letter which essentially 
 
                 translates what is in the chart.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Mr. Butcher was seen by me on 8-24-90.  He stated 
 
                 that he had been hit in the left eye with a fist 
 
                 the previous night.  He stated that he saw a 
 
                 purple spot in the left eye with a ring around it 
 
                 and an orange background.  He has a history of an 
 
                 old injury to the right eye.  Evidently the right 
 
                 eye had an intraocular foreign body in the past.  
 
                 His vision without glasses was 20/400 in either 
 
                 eye.  The left eye had a clear cornea and anterior 
 
                 chamber and I dilated the eye.  I felt the left 
 
                 eye had a choroidal rupture and while examining 
 
                 the left eye I also looked at the right eye which 
 
                 had a partial cataract.
 
            
 
                 Because of the extent and nature of the injury to 
 
                 the left eye I referred him to Dr. Steve Jacobs 
 
                 who has his independent practice but we share the 
 
                 same waiting room.  Steve has had considerable 
 
                 training in retinal work and is one of two 
 
                 ophthalmologists in town doing retinal surgery at 
 
                 this time.  I would suggest you request 
 
                 information from him at this same address. I'm 
 
                 sure he can proceed with the progress of Mr. 
 
                 Butcher's injury.
 
            
 
            (Joint Exhibit 2, page 00014)
 
            
 
                 Claimant saw Steven J. Jacobs, M.D.  Dr. Jacobs 
 
            authored a report dated June 13, 1991.  In his report he 
 
            opined that:
 
            
 
                 My initial examination showed an uncorrected 
 
                 visual acuity of 20/300 OD and 20/60- OS.  Slit 
 
                 lamp exam showed an old stellate corneal scar in 
 
                 the optical axis and an inferior cortical cataract 
 
                 OD.  The slit lamp exam was normal OS.  Dilated 
 
                 fundus exam OS showed a large subretinal 
 
                 hemorrhage in the macula.  On sequential 
 
                 observation the hemorrhage began to clear in the 
 
                 macula and revealed a choroidal rupture nasal to 
 
                 the optic nerve head.  He was last seen on January 
 
                 6, 1991 at which time his visual acuity was 20/100 
 
                 in the left eye.
 
            
 
                 My impression is that John Butcher has amblyopia 
 
                 OD as a result of a childhood injury and severe 
 
                 loss of vision in the left eye as a result of a 
 
                 subretinal hemorrhage due to a traumatic choroidal 
 
                 rupture.  I think his overall prognosis of 
 
                 recovery in the future is poor and that he should 
 
                 be considered disabled on the basis of his vision.
 
            
 
            (Jt. Ex. 2, p. 00025)
 
            
 
                 Claimant also sought treatment at the Illinois Eye 
 
            Clinic on August 27, 1990.  He was evaluated but claimant 
 
            sought additional treatment at the University of Iowa.
 
            
 
                 At the University of Iowa, claimant was treated by Jay 
 
            H. Krachmer, M.D., a board certified ophthalmologist who is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            a professor in the Department of Ophthalmology at the 
 
            University of Iowa.
 
            
 
                 Dr. Krachmer examined claimant's eyes on several 
 
            occasions, including August 1, 1991.  On that date, claimant 
 
            was complaining of problems with both eyes.  (Jt. Ex. 1, p. 
 
            5, lines 18-25)
 
            
 
                 With respect to the left eye, Dr. Krachmer testified he 
 
            found:
 
            
 
                 Q.   Doctor, referring to the left eye, what did 
 
                    your        examination reveal?
 
            
 
                 A.   The left eye, his visual acuity was 20/25 
 
                      minus
 
            1.  The cornea on the left was normal.  He 
 
            did not have a cataract on the left.  His 
 
            intraocular pressure was normal on the left.  
 
            But what he did have was a scar in the back 
 
            of the right eye -- of the left eye in the 
 
            retina, a chorioretinal scar because the scar 
 
            involved the retina and choroid.
 
            
 
                 Q.   Doctor, a couple of questions, definitions.  
 
                 What        do you mean when you say 20/25 minus 
 
                 1, what's the    significance of that?
 
            
 
                 A.   That means that he read all the letters on 
 
                    the         visual acuity chart, the 20/25 
 
                    line, except for           one.  I should add 
 
                    that he also -- we noted that        his eyes 
 
                    were not perfectly aligned.  In other          
 
                    words, he -- there was a small misalignment of 
 
                    the    eyes, which I believe we noted on 
 
                    follow-up             examinations.  But that 
 
                    was the major part of the  examination.
 
            
 
                 Q.   Doctor, the condition that you described 
 
                      concerning the scar on the back of the retina 
 
                      of the left eye, is that a condition that's a 
 
                      result of the injury that he described to you 
 
                      as occurring on August 24, 1990?
 
            
 
                 A.   I don't have the date of the injury, but that 
 
                 was    approximately what the date should be.  And 
 
                 the         scar is consistent with that kind of 
 
                 injury, and           so I would have to say from 
 
                 the history, I would            assume that that 
 
                 was a result of that injury.
 
            
 
            (Jt. Ex. 1, p. 6, l. 17 thru p. 7, l. 23)
 
            
 
                 Dr. Krachmer also examined claimant's right eye.  
 
            Surgery was proposed for the right eye only.  Dr. Krachmer 
 
            performed "a penetrating Keratolplasty and extracapsular 
 
            cataract extraction with a posterior chamber intraocular 
 
            lens."
 
            
 
                 As of March 2, 1992, Dr. Krachmer opined that claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            had sustained the following loss relative to his right eye:
 
            
 
                 2.  Visual acuity 20/160 right eye only 72% loss
 
            3.  Visual acuity 2/40 right eye only 15% loss
 
            4.  Visual acuity 20/l00 right eye only 50% loss.
 
            
 
                 The surgeon testified in his deposition of February 21, 
 
            1992, that claimant's right eye had not stabilized and that 
 
            claimant would reach maximum medical improvement in 
 
            approximately one to one and one-half years.
 
            
 
                 At the time of the hearing, claimant was enrolled as a 
 
            student at Kirkwood Community College.  He testified that he 
 
            hopes to achieve a bachelors' degree in business.
 
            
 
                                conclusions of law
 
            
 
                 Defendant-employer and its insurance carrier admitted 
 
            at the close of the hearing that claimant sustained a 
 
            work-related injury to his left eye on August 24, 1990.  Dr. 
 
            Krachmer testified there was permanent damage done to 
 
            claimant's left eye as a result of the work injury.  (Jt. 
 
            Ex. l, p. 10, ll. 9-17).  Claimant has established the 
 
            requisite causal connection to a permanent impairment of the 
 
            left eye.  See Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348 (1980).
 
            
 
                 Permanent injuries to the eyes are governed by sections 
 
            85.34(2)(p)(q).
 
            
 
                 These sections provide that:
 
            
 
                   p.  For the loss of an eye, weekly compensation 
 
                 during one hundred forty weeks.
 
              q.  For the loss of an eye, the other eye having 
 
            been lost prior to the injury, weekly compensation 
 
            during two hundred weeks.
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 In the instant case, claimant sustained a permanent 
 
            partial disability to the left eye.  Claimant had previously 
 
            sustained a loss to the right eye.  Since the work injury 
 
            was a second eye loss, claimant is entitled to weekly 
 
            compensation under 85.34(2)(q).  Since claimant has a 10 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            percent loss, he is entitled to 20 weeks of permanent 
 
            partial disability benefits at the stipulated rate of $85.25 
 
            per week.
 
            
 
                 The next issue to address is the nature and extent of 
 
            any healing period benefits.  Healing period benefits are 
 
            governed by section 85.34(1).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            App. 1981).  Healing period benefits can be interrupted or 
 
            intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 Claimant has done a less than adequate job in proving 
 
            that any healing period benefits are due to him.  His 
 
            testimony indicates he commenced employment at the Tycoon 
 
            Lounge approximately one month before his surgery on January 
 
            6, 1992.  That would place his return at December 6, 1991.  
 
            However, in August of 1991, claimant returned to the college 
 
            setting.  It stands to reason that if claimant could return 
 
            to the classroom in August of 1991, he could also return to 
 
            the work setting at that time.  Therefore, it is the 
 
            determination of this deputy that claimant is entitled to 
 
            healing period benefits from August 24, 1990 through August 
 
            1, 1991, the date Dr. Krachmer first examined claimant for 
 
            his left eye and the date on which Dr. Krachmer opined 
 
            claimant's left eye was stable.  (Jt. Ex. 1, p. 8, ll. 1-7)  
 
            The healing period is comprised of 49 weeks at the 
 
            stipulated rate of $85.25 per week.
 
            
 
                 The next issue under discussion is the issue of medical 
 
            benefits pursuant to section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review decision 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., file number 850096 (Appeal Decision 
 
            1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa App. 1983).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Since defendants, employer and insurance carrier, 
 
            denied liability until the completion of the hearing, the 
 
            defendants cannot argue that claimant lacked authorization 
 
            for the care of claimant's left eye.  Therefore, defendants, 
 
            employer and insurance carrier, are liable for:
 
            
 
                      Dr. Steven J. Jacobs          $  75.00
 
            
 
                      Medical mileage for 660 miles x $.21 per mile =
 
                                                              $138.60
 
                                                    Total     $213.60
 
            
 
                 Claimant is making a claim against defendant-Second 
 
            Injury Fund of Iowa for benefits pursuant to the Second 
 
            Injury Compensation Act.
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 Interest accrues on benefits the Fund pays commencing 
 
            on the date of the decision.  Second Injury Fund of Iowa v. 
 
            Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                 Claimant argues that he has sustained a permanent 
 
            injury to his right eye as an initial injury and that the 
 
            injury to the left eye is permanent as well.  Consequently, 
 
            claimant maintains he is entitled to Second Injury Fund 
 
            benefits.  Claimant is premature in trying this portion of 
 
            his claim.  The alleged initial right eye injury is not 
 
            stabilized.  The treating surgeon cannot determine whether 
 
            claimant's vision in the right eye on March 2, 1992, is 
 
            permanent.  Dr. Krachmer expects the right eye vision to 
 
            change over the course of the eighteen months following the 
 
            surgery.  Dr. Krachmer has testified that claimant's vision 
 
            can change for the better or for the worse.  The right eye 
 
            has not reached the stage of maximum medical improvement.  
 
            Therefore, this deputy is unable to determine whether 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant is entitled to Second Injury Fund benefits or the 
 
            amount of those benefits, if any.
 
            
 
                 While it is acknowledged that claimant has also 
 
            sustained an injury to his left shoulder, this particular 
 
            injury does not qualify as an initial injury under the 
 
            Second Injury Fund Act.  The left shoulder injury qualifies 
 
            as a body as a whole injury.  When disability is found in 
 
            the shoulder, a body as a whole situation may exist.  Alm v. 
 
            Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
            (1949).  In Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (App. Decn. 1982), a torn 
 
            rotator cuff was found to cause disability to the body as a 
 
            whole.
 
            
 
                 Here, the shoulder injury affects the body as a whole.  
 
            Claimant's medical record for March 9, 1990, indicates the 
 
            pain is "an area deep within the anteralateral aspect of the 
 
            shoulder."  (Jt. Ex. 2, p. 00026)  He "has no radiation down 
 
            the arm."  This is different than Shirley v. Shirley Ag 
 
            Service, File No. 811696 (Appeal Decision filed March 21, 
 
            1990).  The shoulder injury does not qualify as an injury 
 
            under the Second Injury Fund Act. The defendant-Second 
 
            Injury Fund is dismissed as a party from this action.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant-Second Injury Fund is dismissed as a party.
 
            
 
                 Defendants-employer and insurance carrier, are to pay 
 
            unto claimant forty-nine (49) weeks of healing period 
 
            benefits at the stipulated rate of eighty-five and 25/l00 
 
            dollars ($85.25) per week for the period from August 24, 
 
            1990 through August 1, 1991.
 
            
 
                 Defendants-employer and insurance carrier, are to pay 
 
            unto claimant twenty (20) weeks of permanent partial 
 
            disability benefits at the stipulated rate of eighty-five 
 
            and 25/l00 dollars ($85.25) per week commencing on August 2, 
 
            1991.
 
            
 
                 Defendants-employer and insurance carrier, are to pay 
 
            medical benefits in the sum of two hundred thirteen and 
 
            60/l00 dollars ($213.60) as aforementioned and pursuant to 
 
            section 85.27, Iowa Code.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Costs of the action are assessed to defendants pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. James E. Shipman
 
            Mr. Matthew J. Petrzelka
 
            Attorneys at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            Terrace Center, STE 111
 
            2700 Grand
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         3200; 3202; 1803.1
 
         Filed April 27, 1992
 
         MICHELLE A. McGOVERN
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         JOHN WAYNE BUTCHER II,        :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :
 
         NINJA, INC. dba ZAZOO THE     :         File No. 966329
 
         BEACH CLUB,                   :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         AUTO OWNERS INSURANCE CO.,    :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         3200; 3202
 
         The Second Injury Fund was dismissed as a party where the alleged 
 
         first injury (eye) had not reached maximum medical improvement 
 
         and where the treating ophthalmologist testified that permanent 
 
         loss of vision could not be established for 12 to 18 months.
 
         Additionally, the Second Injury Fund was dismissed as a party 
 
         because another alleged first injury was an injury to the 
 
         shoulder.
 
         
 
         
 
         1803.1
 
         Defendants employer and insurance carrier were held liable for a 
 
         10 percent loss of the left eye because of a work injury 
 
         involving a "stereotypical barroom brawl."  Section 85.34(q) was 
 
         used to calculate benefits since claimant had sustained a prior 
 
         injury to his right eye when he was a child.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY L. ATCHISON,          :
 
                                          :
 
                 Claimant,                :    File Nos. 930697
 
                                          :              966331
 
            vs.                           :
 
                                          :
 
            MERCY HOSPITAL,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on October 3, 1991, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of injuries occurring on 
 
            September 21, 1989 and February 3, 1990.  The record in the 
 
            proceeding consists of the testimony of claimant, Amy 
 
            Desenberg-Wines, and Joe McManus; and joint exhibits 1 
 
            through 10.
 
            
 
                 At the beginning of the hearing, the claimant moved 
 
            that file number 920755, representing a petition alleging an 
 
            injury on June 14, 1989, be dismissed.  The defendant had no 
 
            objection.  The undersigned finds that there is no prejudice 
 
            or undue expenses incurred as a result of this dismissal 
 
            and, therefore, this file was dismissed and the parties 
 
            proceeded on the two files and two alleged injuries 
 
            previously set out herein.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged permanent disability or 
 
            the extent thereof is causally connected to his work 
 
            injuries of September 21, 1989 and February 3, 1990;
 
            
 
                 2.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits as a result of the 
 
            injuries.  The parties did agree that any disability would 
 
            be an industrial disability and benefits would commence, if 
 
            any, on May 8, 1990.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 39-year-old who completed the ninth grade 
 
            and then got married.  She received her GED in 1984.  Her 
 
            only other form of education was her attendance at a 
 
            clerical program course at DMACC at the end of 1984 and 
 
            beginning of 1985, which she did not complete.  She 
 
            indicated she could not type, which was a requirement.  She 
 
            received no certificate.  Claimant also attended a certified 
 
            nursing assistant program in 1986 involving a two weeks 
 
            clinic and two weeks of classroom work.  This taught a 
 
            person how to make beds, give baths and perform other 
 
            requirements on the hospital floor.  Claimant completed this 
 
            course and received a certificate indicating she is a 
 
            certified nurse's assistant.
 
            
 
                 Claimant described her work history prior to working 
 
            for defendant beginning in April 1987.  Claimant's prior 
 
            history from 1968 to 1972 involved labor-type jobs, such as 
 
            operating a sewing machine or mail order-envelope inserting 
 
            work.
 
            
 
                 From 1972 to 1987, claimant was a homemaker and was 
 
            home caring for her children.  Claimant testified she had no 
 
            injuries prior to working for defendant, at which job she 
 
            started at $4.50 per hour.
 
            
 
                 Claimant described the nature of the work for 
 
            defendant.  This work basically involved serving breakfast, 
 
            feeding patients, making beds, bathing patients and 
 
            servicing the patients' needs.
 
            
 
                 On September 21, 1989, claimant was moving and turning 
 
            a patient with the help of another nurse.  Claimant suddenly 
 
            felt a knot in her neck and pain in her leg.  When she moved 
 
            the next patient, the knot went up the neck and claimant had 
 
            pain in the lower shoulder and neck.
 
            
 
                 Claimant explained her medical care.  Defendant sent 
 
            her originally to David T. Berg, D.O.  There was an attempt 
 
            to put claimant back to work on light duty on the hospital 
 
            floor with her restrictions but claimant was unable to do 
 
            her job which still involved making beds and giving patients 
 
            a bath or walking them.
 
            
 
                 Claimant indicated that during the early part of 1990, 
 
            Dr. Berg allowed claimant to do light duty work restricting 
 
            her to office duty only.  These duties involved making 
 
            copies, mailing, staff scheduling and running errands.  
 
            Claimant said she did this until December 1990.
 
            
 
                 On February 3, 1990, claimant incurred another injury 
 
            while on her light duty job.  Claimant testified that on 
 
            this date another nurse was trying to move a patient from a 
 
            bed to a chair and asked for assistance.  No one would help 
 
            the nurse so claimant, who was in the area, helped her 
 
            fellow employee with the patient.  Claimant injured her neck 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and shoulder again.  Claimant insisted the nurse needed 
 
            assistance.  Claimant was reprimanded for violating her work 
 
            restrictions.
 
            
 
                 Claimant was being treated continuously by Dr. Berg up 
 
            to the February 3, 1990 incident.  Claimant said this event 
 
            worsened her problems temporarily but eventually the pain 
 
            came down to the same level claimant had prior to her 
 
            February 3, 1990 incident.
 
            
 
                 Claimant related she went to the Block Center to get 
 
            Cortisone shots immediately prior to February 3, 1990, and 
 
            afterwards, but indicated they only helped her temporarily.
 
            
 
                 On August 31, 1990, claimant received a certified 
 
            letter from Joe McManus, defendant's workers' compensation 
 
            coordinator (Joint Exhibit 8, page 1), explaining Mercy's 90 
 
            day policy for permanent employees.  This policy gave 
 
            claimant an option of voluntary terminating or taking a 
 
            leave of absence.  Claimant doesn't recall defendant telling 
 
            her the light duty office job she was then performing was 
 
            temporary but she said they told her she was still an 
 
            employee of the department in which she worked at the time 
 
            of her September 1989 injury.
 
            
 
                 Claimant tried to find a job and defendant helped place 
 
            her in the purchasing department beginning December 17, 
 
            1990.  This job was classified as general office work and 
 
            involved answering the telephone, data entry, greeting sales 
 
            people, etc.  Claimant said she got along fine in this job 
 
            and worked December 17, 1990 to March 15, 1991.
 
            
 
                 Claimant related she was making $6.25 per hour on 
 
            September 21, 1989, and this increased to $6.43 in September 
 
            1990, but claimant's pay in December 1990 in the purchasing 
 
            department was $6.11 per hour.  This lighter duty job paid 
 
            less per hour.
 
            
 
                 Claimant knew this purchasing department job was to be 
 
            temporary.  She tried to find another job at Mercy Hospital.  
 
            Claimant said she checked each week looking at defendant's 
 
            bulletin boards for job listings, etc.  She did not find any 
 
            work and defendant did not help her.  She indicated Mercy 
 
            Hospital didn't send her a bulletin.
 
            
 
                 Claimant has not worked since March 15, 1991, and 
 
            defendant has offered her no jobs.  Claimant related her job 
 
            attempts and records and considered her restrictions.  
 
            Claimant related Dr. Berg's restrictions given to her on 
 
            March 27, 1990, which involved a 5 pound weight limit.  On 
 
            June 5, 1990, claimant acknowledged James L. Blessman, M.D., 
 
            Dr. Berg's associate, put her on a 20 pound limit with no 
 
            above the shoulder level lifting.
 
            
 
                 Claimant said Mercy Hospital provided a vocational 
 
            rehabilitation company, namely, Resources Opportunities, 
 
            Inc., hereafter referred to and also known as R.O.I., to 
 
            help her find a job.  Claimant related her working with them 
 
            in her job search but no jobs were found.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Claimant said she last saw Dr. Berg two and one-half 
 
            months ago (July 1991).
 
            
 
                 Claimant testified she had no other injuries after 
 
            September 21, 1989, or February 3, 1990, except in December 
 
            1990, while raising both hands above the head and 
 
            stretching, she evidenced pain in the left side which 
 
            eventually resolved itself back to her pre-December 1990 
 
            condition.  Also, in August 1991, claimant ducked to avoid a 
 
            bee and again temporarily incurred pain in the same parts of 
 
            her previously injured body.
 
            
 
                 Claimant related the problems she is currently having, 
 
            i.e., constant pain; can't sleep; can't mop; can't get items 
 
            from the cupboard; problems moving her head, particularly 
 
            fast; trouble driving; and doing certain other things around 
 
            the house.
 
            
 
                 Claimant said her husband has a mental disability, 
 
            which he had prior to his becoming 18.  Claimant also has 
 
            back trouble.  Claimant said her daughter now lives with 
 
            her.
 
            
 
                 Claimant was referred to Dr. Blessman on July 24, 1990.  
 
            Claimant insisted she doesn't have full range of motion in 
 
            her left shoulder notwithstanding what the doctor said.
 
            
 
                 On cross-examination, claimant was asked and discussed 
 
            the problems her daughter is having with her husband, the 
 
            court appearances, etc.  Defendant was trying to show 
 
            claimant was babysitting for her grandchildren and therefore 
 
            not able to work or seek employment.
 
            
 
                 Claimant was asked several questions as to her contact 
 
            with Lori Hackett, the vocational rehabilitation specialist, 
 
            who worked with R.O.I. and which company was hired by 
 
            defendant to help claimant find a job.
 
            
 
                 Claimant acknowledged that her family problems 
 
            involving her daughter during March 1991 were overwhelming 
 
            and that any job claimant would have, she would have to 
 
            avoid working around 4:00 to 12:00 midnight because claimant 
 
            was babysitting her grandchildren.  
 
            
 
                 Claimant indicated she has recovered from her February 
 
            1990 incident to the point medically that existed prior to 
 
            February 3, 1990.  Therefore, claimant emphasized she is not 
 
            claiming she has any permanency from the February 3, 1990 
 
            accident (File No. 966331).
 
            
 
                 Claimant is not claiming the defendant is preventing 
 
            her from getting a job and acknowledged that Mercy Hospital 
 
            hired a vocational rehabilitation company to help her from 
 
            December 1990 to October 1991.  Claimant seems to have put 
 
            things on hold due to her family problems, but is excited as 
 
            to getting training beginning October 7, 1991, at the state 
 
            vocational rehabilitation department and possibly getting a 
 
            good job.  Claimant emphasized she would still like to work 
 
            at Mercy Hospital.  Claimant said she could never go back as 
 
            a certified nurse assistant.  Her restrictions have not been 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            released.
 
            
 
                 Claimant testified that if she had not been given a 
 
            letter as to her leave of absence-option effective March 15, 
 
            1991, she believes she would still be working at defendant's 
 
            as far as she knows, if it were not for her injuries.  
 
            Claimant emphasized Joe McManus, defendant's workers' 
 
            compensation coordinator, never came to her and said that 
 
            there was a full-time job for her.
 
            
 
                 Amy Desenberg-Wines, a vocational rehabilitation 
 
            specialist with R.O.I. began working for R.O.I. in May 1991.  
 
            She knows claimant and testified a file was open for 
 
            claimant in December 1990.  She took over for Lori Hackett, 
 
            who was originally assigned this case.  Ms. Wines testified 
 
            as to her contact with claimant and what she did.  Her 
 
            contact with claimant began on August 22, 1991.
 
            
 
                 Ms. Wines' testimony for the period prior to May 1991, 
 
            when she began working for R.O.I., was from the record made 
 
            by her predecessor, Lori Hackett.  These records reflect 
 
            that claimant missed some appointments because of family 
 
            problems.  Ms. Wines said that the records reflect that Ms. 
 
            Hackett recommended claimant should participate in the state 
 
            vocational rehabilitation program.  Ms. Wines indicated 
 
            claimant did not follow some job leads she suggested in 
 
            March 1991.  She further indicated claimant was affected by 
 
            her problems at home and that claimant's daughter's custody 
 
            fights affected claimant's job search placement.  Ms. Wines 
 
            said these problems affected claimant searching for jobs on 
 
            her own so she put claimant's R.O.I. file on hold from March 
 
            to August 1991.  She also said claimant at this time was 
 
            getting unemployment benefits and was applying for long-term 
 
            disability.
 
            
 
                 The R.O.I. report is joint exhibit 1A.  Ms. Wines 
 
            elaborated on claimant's employability and jobs targeted for 
 
            her and the hourly range of $5.77 to $7.30 per hour.
 
            
 
                 It is of interest that Ms. Hackett or Ms. Wines never 
 
            apparently tried to get defendant to take claimant back.  
 
            Ms. Wines was emphatic that R.O.I.'s primary charge when 
 
            hired by defendant was to place claimant in a job within her 
 
            restrictions and qualifications.  Ms. Wines agreed that 
 
            R.O.I.'s records show all job activity is regarding 
 
            employment outside of Mercy Hospital.  She would qualify 
 
            some of her answers by saying she didn't know if Lori 
 
            Hackett checked other jobs with Mercy, itself.  In every 
 
            case, the written record notes and reports were relied upon.  
 
            It is obvious to the undersigned that Lori Hackett didn't 
 
            look at Mercy for a job any more than Ms. Wines.  It is 
 
            apparent that R.O.I. was looking for an outside employer.
 
            
 
                 Although the vocational rehabilitation experts 
 
            expressed the opinion that claimant would be good in the 
 
            medical field, there is no evidence whatsoever that R.O.I. 
 
            looked to Mercy, their client, for a job for claimant even 
 
            though the hospital and most of its jobs are in the medical 
 
            field.  It appears R.O.I. never talked to Joe McManus at 
 
            Mercy concerning this.  Ms. Wines indicated that R.O.I. has 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            other cases for Mercy Hospital currently pending.
 
            
 
                 Ms. Wines indicated it is a priority to get an employee 
 
            back to employment if there is a position an employee can do 
 
            but that didn't occur in this case.
 
            
 
                 It appears claimant's employability is in an entry 
 
            level job considering that her medical restrictions dictate 
 
            a sedentary type work.  Ms. Wines indicated claimant is very 
 
            employable but obvious when it comes to Mercy Hospital, 
 
            R.O.I. doesn't feel claimant is employable or at least their 
 
            client does not feel that way.
 
            
 
                 The undersigned feels there is no necessity to go into 
 
            any further detail with the vocational rehabilitation 
 
            expert's testimony.
 
            
 
                 Joe McManus, Mercy Hospital workers' compensation 
 
            coordinator, testified he coordinated defendant's effort 
 
            with R.O.I., as a self-insured employer and coordinates 
 
            light duty work efforts.  When asked if R.O.I. is to contact 
 
            Mercy for a job for an injured employee, he indicated Mercy 
 
            Hospital never drew the line.  He said if an employee is 
 
            going into the 90 day grace period and doesn't have a 
 
            permanent position, he brings in R.O.I. at that time and 
 
            asked the employee if she or he desires help with an outside 
 
            source as well as inside help.  McManus emphasized Mercy 
 
            doesn't have its own outside source.
 
            
 
                 Mr. McManus indicated that defendant tries to retain an 
 
            injured worker.  He elaborated in more detail the 
 
            defendant's procedure.  McManus emphasized he can facilitate 
 
            an injured employee's application to get a job with the 
 
            defendant.  He went through the Mercy Hospital bulletins and 
 
            highlighted jobs he thought claimant could do within her 
 
            restrictions.  He believed claimant could get a job with 
 
            Mercy at this time.
 
            
 
                 It appears from Mr. McManus' testimony that Mercy is 
 
            doing all it can to get claimant back to work and that there 
 
            are jobs available yet he has obviously not conveyed that to 
 
            R.O.I. or to the claimant.
 
            
 
                 There is no disagreement that claimant cannot go back 
 
            to work as a certified nurse's assistant.
 
            
 
                 Joint exhibit 8 is an August 31, 1990 letter from Mr. 
 
            McManus to claimant.  In this letter, defendant indicates it 
 
            will work closely with personnel to assist claimant in 
 
            securing any job of interest for which she qualifies.  It is 
 
            of interest to the undersigned why Mercy Hospital did not 
 
            tell claimant there were jobs available or tell R.O.I., for 
 
            whom it was paying, that there were jobs available.
 
            
 
                 McManus acknowledged that if an employee takes a job 
 
            outside Mercy Hospital, the paid leave of absence (21 
 
            months) or any remainder of time on her leave would 
 
            terminate.  It is obvious it is to defendant's advantage to 
 
            try to get an outside job for claimant.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Claimant began working for defendant employer on April 
 
            8, 1987, at $4.50 per hour.  Claimant has received good to 
 
            very good job reviews up to the August 23, 1989 review, the 
 
            last one prior to claimant's September 21, 1989 injury.  At 
 
            this review, claimant's hourly pay went to $6.25 (Jt. Ex. 
 
            10).  Claimant's next review appears to have been September 
 
            6, 1990, at which time she still had a "good, meets 
 
            expectation" rating and she went to $6.43 per hour.  On 
 
            October 21, 1988, claimant had a physical examination which 
 
            resulted in claimant being recommended for the job she was 
 
            doing with no restrictions (Jt. Ex. 10).  The pages to this 
 
            lengthy exhibit are not numbered, which would have helped in 
 
            more particulars to identify the particular part of the 
 
            exhibit.
 
            
 
                 Joint exhibit 1A is the vocational rehabilitation 
 
            report from which Ms. Wines testified in detail.  The 
 
            written information supports the fact that R.O.I. was 
 
            basically looking outside Mercy Hospital for any full-time 
 
            job leads for the claimant.
 
            
 
                 Claimant was released to light duty on January 30, 
 
            1990, with "no lifting restriction."  (Jt. Ex. 1B, p. 5)  
 
            Claimant was released to light duty on March 27, 1990, with 
 
            no lifting, pushing or pulling over five pounds (Jt. Ex. 1B, 
 
            p. 7).
 
            
 
                 On September 12, 1991, Dr. Berg opined claimant had a 5 
 
            percent impairment to her body as a whole based on 
 
            claimant's objective complaint of chronic pain.  The 
 
            doctor's impairment rating was based on claimant's August 
 
            1990 examination (Jt. Ex. 1C, p. 1).  The doctor refers to 
 
            claimant's injury but his December 12, 1990 report which 
 
            gave the same impairment rating, indicated he was giving his 
 
            rating on a September 1989 lifting injury (Jt. Ex. 1C, p. 
 
            2).
 
            
 
                 Since there is no dispute that claimant incurred a work 
 
            injury on September 21, 1989 and February 3, 1990, there is 
 
            no necessity of going into certain aspects of the medical 
 
            evidence herein.  The extent of claimant's permanent 
 
            disability and whether it is causally connected to 
 
            claimant's injuries are the issues herein.
 
            
 
                 Dr. Berg's medical records on claimant show her 
 
            complaint and treatment.  On January 22, 1990, these records 
 
            reflect claimant was having shoulder and cervical pain and 
 
            was referred to the Block Center for trigger point 
 
            injections on February 6, 1990.  Claimant was still on 
 
            restrictions (Jt. Ex. 1D, p. 7).  On January 30, 1990, 
 
            claimant told the doctor defendant was making her lift 
 
            patients and she was having difficulty (Jt. Ex. 1D, p. 8).
 
            
 
                 On February 5, 1990, the doctor's records show claimant 
 
            returned following a recurrence of pain on February 3, 1990, 
 
            while lifting a patient over the weekend (Jt. Ex. 1D, p. 8).  
 
            On March 27, 1990, Dr. Blessman, Dr. Berg's associate, gave 
 
            claimant a 5 pound lifting and pulling restriction and 
 
            claimant was not to make beds (Jt. Ex. 1D, p. 11).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 On June 5, 1990, claimant was improving and her lifting 
 
            limit was raised to nothing over 20 pound and no lifting 
 
            above shoulder level.  Claimant reached maximum healing on 
 
            December 6, 1990 (Jt. Ex. 1D, pp. 19 and 23).
 
            
 
                 Mercy Hospital records reflect claimant's trigger point 
 
            injections and visits to the Nerve Block Center (Jt. Ex. 
 
            1E).  Joint exhibit 6 reflects several of claimant's job 
 
            requests from January 15, 1990 to July 17, 1991.  Claimant 
 
            was not successful in obtaining any of these jobs.
 
            
 
                 There is no dispute that there is a causal connection 
 
            to an injury on both September 21, 1989 and February 3, 
 
            1990.  The dispute is basically as to whether there is any 
 
            permanent disability and the extent thereof.  Claimant, 
 
            herself, indicated that she is no longer suffering from any 
 
            problems from her February 3, 1990 injury.  The medical 
 
            evidence would indicate that any permanency that exists is 
 
            the result of the September 21, 1989 injury.
 
            
 
                 The greater weight of medical evidence shows that 
 
            claimant incurred an injury on September 21, 1989 and that 
 
            this injury and healing of the same continued and that the 
 
            events on February 3, 1990 aggravated an already existing 
 
            injury situation.  The undersigned finds that this February 
 
            3, 1990 incident aggravated temporarily the medical problems 
 
            claimant had incurred from the September 21, 1989 injury and 
 
            that the reason the incident on February 3, 1990 aggravated 
 
            the injury was because claimant was still healing and 
 
            suffering from the September 21, 1989 injury.  It would 
 
            appear that claimant healed and has no permanency from the 
 
            February 3, 1990 injury and the undersigned so finds.
 
            
 
                 It is undisputed that claimant is not able to return to 
 
            her certified nurse's assistant's job for which she was 
 
            trained and at which job she was doing good work as shown by 
 
            her reviews.  It would appear that her skills are in the 
 
            medical area.  Claimant basically has few transferable 
 
            skills and her work as a certified medical assistant seems 
 
            to have been a suitable field for her with her limited 
 
            education and specific training for approximately four weeks 
 
            in that field plus her job experience while working for 
 
            defendant.  It is obvious Mercy Hospital is an institution 
 
            in which a majority of their employees would be working in 
 
            the medical field.  They hired R.O.I. to help find claimant 
 
            a job.  To date, they have been unsuccessful.  It is obvious 
 
            to the undersigned that their intentions were placed on 
 
            obtaining a job for claimant with an outside source and not 
 
            Mercy Hospital.  Mr. McManus emphasized in his testimony 
 
            that there are jobs at Mercy Hospital claimant could do and 
 
            yet he has made no real effort to convey this to either the 
 
            claimant or to R.O.I.  It is to Mercy Hospital's advantage 
 
            that claimant obtain an outside job at the earliest possible 
 
            date, particularly while claimant was on the 21 month leave 
 
            of absence as this would terminate all benefits claimant 
 
            would otherwise be receiving.
 
            
 
                 Claimant obviously had, for a few months, family 
 
            problems involving her daughter and that her time was taken 
 
            up with her daughter's problems and her babysitting for her 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            grandchildren.  It is obvious from the record that had not 
 
            claimant been injured, she would have still been working at 
 
            Mercy Hospital as a certified nurse's assistant and that any 
 
            family problems that might have occurred could have been 
 
            resolved or handled without claimant quitting her job.  The 
 
            fact that she wasn't able to get work and the nature of her 
 
            injury enabled her to at least do some other things she may 
 
            have not been able to do if she had a full-time job.  It 
 
            would appear that claimant could have made a better effort 
 
            and a more complete effort when she was searching for a job 
 
            to take all approaches to find a job, particularly at Mercy 
 
            Hospital.  It appears to the undersigned that we have two 
 
            people and one institution, namely, defendant and Mr. 
 
            McManus and claimant waiting for each other to take a step 
 
            in certain instances and neither Mercy or McManus going to 
 
            the extent that they should to help claimant find a job at 
 
            Mercy Hospital.  Mercy, in good faith, hired an outside 
 
            source, R.O.I., but it seems like they then washed their 
 
            hands of claimant's problems.  There obviously is not the 
 
            necessary communication between the vocational 
 
            rehabilitation specialist and defendant even though they 
 
            were in a contractual relationship to attempt to help 
 
            claimant find a job.  It appears to the undersigned that 
 
            defendant may have thought it was to their advantage, 
 
            particularly with their leave of absence policy, etc., that 
 
            once they hired R.O.I., they could eventually and hopefully 
 
            get out of the picture and this would be to their advantage.  
 
            Apparently, they did not realize the provisions of the law 
 
            in which refusal to hire or rehire can affect the extent of 
 
            any industrial disability that may be awarded.  The 
 
            undersigned finds defendant has not made the effort it 
 
            should have made in attempting to find claimant a job with 
 
            its own institution.  This is further brought out by the 
 
            many jobs Mr. McManus now claims that claimant can do and 
 
            feels would be within her restrictions.  Claimant may not 
 
            know whether a particular job could be within her 
 
            restrictions and it would seem the greater burden would be 
 
            on the employer to notify the claimant who they knew was 
 
            looking for a job to notify her that there are jobs they 
 
            feel are within her restrictions and invite her back to at 
 
            least attempt to do that work.
 
            
 
                 Considering claimant's age; pre- and post-medical 
 
            history and work history; her present condition; her 
 
            education; her physical qualifications; her impairment; 
 
            current lifting restrictions and the fact she is unable to 
 
            return to the work for which she was trained and working at 
 
            the time of her injury; the location and severity of her 
 
            injury and the extent of the healing period; the extent of 
 
            her motivation; the extent or lack of the extent of the 
 
            employee leaving work after her injury; and claimant's 
 
            inability to find suitable work after making bona fide 
 
            efforts, including efforts by R.O.I.; and the fact that 
 
            claimant has a loss of income, the undersigned finds that 
 
            claimant has a loss of earning capacity and has incurred an 
 
            industrial disability of 35 percent.  The undersigned finds 
 
            that this industrial disability was caused by claimant's 
 
            September 21, 1989 injury.
 
            
 
                                conclusions of law
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            21, 1989 is causally related to the disability on which she 
 
            now bases her 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). 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury that arose out of and in 
 
            the course of her employment on September 21, 1989, and that 
 
            this injury caused claimant to incur an impairment, lifting 
 
            restrictions and a 35 percent industrial disability.
 
            
 
                 Claimant's September 21, 1989 caused claimant to not be 
 
            able to return to her occupation as a certified nurse's 
 
            assistant.
 
            
 
                 Defendant did not make sufficient efforts to rehire 
 
            claimant or to enable her to return to a job within her 
 
            restrictions, which actions had the effect of defendant 
 
            having refused to rehire claimant.  That refusal affected 
 
            the extent of claimant's industrial disability.
 
            
 
                 Claimant incurred an aggravation of her September 21, 
 
            1989 injury due to another injury which occurred on February 
 
            3, 1990.  this latter injury aggravated temporarily the 
 
            condition claimant was already suffering from her September 
 
            21, 1989 injury.
 
            
 
                 Claimant did not incur any permanent disability as a 
 
            result of her February 3, 1990 injury.
 
            
 
                 Claimant's disability benefits as a result of her 
 
            September 21, 1989 injury should commence on May 8, 1990, at 
 
            the weekly rate of $171.49 per week, as stipulated by the 
 
            parties.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of one hundred seventy-one and 49/100 
 
            dollars ($171.49) per weeks beginning May 8, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 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.
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert E McKinney
 
            Attorney at Law
 
            480 6th Ave
 
            P O Box 209
 
            Waukee IA 50263-0209
 
            
 
            Mr Stephen W Spencer
 
            Mr Lee P Hook
 
            Attorneys at Law
 
            218 6th Ave  Ste 300
 
            Box 9130
 
            Des Moines IA 50306
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 1807
 
                      Filed November 8, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY L. ATCHISON,          :
 
                                          :
 
                 Claimant,                :    File Nos. 930697
 
                                          :              966331
 
            vs.                           :
 
                                          :
 
            MERCY HOSPITAL,               :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Found claimant incurred a 35% industrial disability as a 
 
            result of her September 21, 1989 work injury.
 
            
 
            1807
 
            Found defendant's action paramount to refusing to rehire 
 
            claimant.  Defendant hired a vocational rehabilitation 
 
            company to find claimant a job but it was obvious the 
 
            rehabilitation consultant looked only outside of defendant 
 
            company for jobs for claimant and found none.  Defendant 
 
            company contended at hearing there were jobs for claimant at 
 
            the hospital but didn't tell anyone.  Claimant was unable to 
 
            perform the former job, but it appears defendant had jobs 
 
            within claimant's restrictions.
 
            Claimant did not incur any permanent disability from her 
 
            February 3, 1990 work injury.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WANDA J. WILKEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966343
 
            ARMOUR DIAL CO.,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SELF-INSURED,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Wanda J. Wilken, against her employer, Armour-
 
            Dial, defendant.  The case was heard on April 28, 1992, at 
 
            the Des Moines County Courthouse, in Burlington, Iowa.  The 
 
            record consists of the testimony of claimant.  The record 
 
            also consists of the testimony of Bill Davis, packaging and 
 
            hydro-stat supervisor.  Additionally, the record consists of 
 
            joint exhibits 1-21.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and any temporary or permanent disability;
 
            
 
                 3.  Whether claimant is entitled to any healing period 
 
            or permanent partial disability benefits;
 
            
 
                 4.  Whether claimant is entitled to any medical 
 
            benefits pursuant to section 85.27; and,
 
            
 
                 5.  Whether claimant has notified defendant pursuant to 
 
            section 85.23.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 50 years old and married.  She has a high 
 
            school diploma, but no education beyond the twelfth grade.  
 
            Claimant is a very petite woman.
 
            
 
                 For nearly 20 years, claimant has worked for defendant.  
 
            Currently, claimant is a can and product inspector which is 
 
            a non-skilled position.
 
            
 
                 Prior to October 1, 1990, the date of the alleged 
 
            injury, claimant had been working as a can inspector.  She 
 
            sat parallel to the "can line."  She sat with her left hand 
 
            raised above her breast, while the cans moved down the 
 
            production line and underneath her left hand.  Claimant 
 
            testified that she felt for labels and defective cans and 
 
            that she would segregate the defective cans from the good 
 
            ones.  Then, according to her testimony, she would request 
 
            her supervisor to shut down the line.  Claimant also 
 
            testified she had to twist her body in order to perform her 
 
            tasks.
 
            
 
                 There is no question that claimant performed repetitive 
 
            tasks.  The rate set for the production line was at 400 cans 
 
            per minute.  On a given day, claimant could have inspected 
 
            between 120,000 and 400,000 cans.  Claimant worked five days 
 
            a week, and 50 weeks out of a year.
 
            
 
                 Claimant testified she began experiencing difficulties 
 
            in her right wrist, elbow and arm in April of 1990.  The 
 
            difficulties increased over time.  Claimant modified her 
 
            work station.  However, as of October 1, 1990, she 
 
            experienced excruciating pain.  She was off work due to neck 
 
            pain, stiffness and right upper extremity difficulties 
 
            (Exhibit 11, page 68).
 
            
 
                 On October 8, 1990, claimant sought treatment from 
 
            Keith W. Riggins, M.D., for neck and right arm pain.  Dr. 
 
            Riggins diagnosed claimant as:
 
            
 
                    X-ray examination of the cervical spine 
 
                 demonstrates the presence of intervertebral disc 
 
                 disease with spurs extending into the neural 
 
                 foramina.
 
            
 
                   DX:  Herniated nucleus pulposus, cervical with 
 
                 radiculopathy, code 722.71.
 
            
 
            (Ex. 12, p. 70)
 
            
 
                 Later that month claimant sought treatment at the Mayo 
 
            Clinic from Cameron G. Strong, M.D., and D.G. Piepgras, 
 
            M.D., a neurological surgeon.  Dr. Piepgras performed a 
 
            right partial hemilaminectomy at C6-7, on October 26, 1990.
 
            
 
                 Subsequent to the surgery, claimant engaged in physical 
 
            therapy and strengthening.  She remained off work on the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            following dates:
 
            
 
                      10-1-90 and 10-2-90
 
            
 
                      10-15-90 - 2-4-91
 
            
 
                      8-22-92 - 10-7-91
 
            
 
                 Eventually, claimant returned to her same position with 
 
            defendant.  Her work station was modified for comfort.  At 
 
            the hearing, Mr. Davis testified that he had a conversation 
 
            with claimant in late September of 1990 or early October of 
 
            that year, and that she related she had experienced a 
 
            problem with her shoulder over the prior weekend.  She 
 
            informed him that she was uncertain where or how the injury 
 
            had occurred.  Mr. Davis testified he informed claimant she 
 
            should fill out an incident report, but that claimant 
 
            replied she would rather see her own physician.  Mr. Davis 
 
            completed a supervisor's incident investigation on October 
 
            3, 1990.
 
            
 
                 The evidence offered established that on December 17, 
 
            1990, Bill Davis and claimant met to discuss claimant's 
 
            alleged work injury.  In a memo dated December 17, 1990, Mr. 
 
            Davis wrote:
 
            
 
                    Wanda Wilken was asked by Richard Leverington 
 
                 to explain, in as much detail as possible, her 
 
                 injury and in particular any dates that would help 
 
                 us achieve a clear understanding of when she 
 
                 started having trouble up until her surgery.
 
            
 
                    She could not recall specific dates, but gave 
 
                 us general time frames.  She said she would have 
 
                 to ask her doctor for specifics.  Most of her 
 
                 discussion outlined her seeking medical help 
 
                 through her own doctor.  Mr. Leverington took 
 
                 notes during this meeting and read back to Wanda 
 
                 Wilken what he had written down and she agreed 
 
                 with the information.
 
            
 
            (Ex. 21, p. 1)
 
            
 
                                conclusions of law
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 In the case at hand, there is insufficient evidence to 
 
            establish a causal connection between claimant's condition 
 
            and her work activities.
 
            
 
                 Firstly, as early as September 28, 1990, claimant 
 
            reported to her supervisor that "she had a [sic] inflamed 
 
            ligament in rt. shoulder over the weekend.  Does not know 
 
            how or when it happened and does n't [sic] want to blame the 
 
            company." (Jt. Ex. 20)
 
            
 
                 Claimant gave no history of any alleged work injury to 
 
            her medical practitioners upon her initial consultation with 
 
            them.  With Dr. Riggins she spoke of a prior motor vehicle 
 
            accident.
 
            
 
                 Thirdly, the treating neurosurgeon, Dr. Piepgras, 
 
            opined there was no causal relationship between claimant's 
 
            work activities and the condition of her cervical spine.  In 
 
            exhibit 16, he wrote that:
 
            
 
                    In response to your inquiry regarding the 
 
                 possible causative factors relative to the 
 
                 extruded cervical disk for which Ms. Wanda J. 
 
                 Wilken underwent surgery here on October 26, 1990, 
 
                 I have reviewed our records of that time, and it 
 
                 appears that the symptoms developed spontaneously 
 
                 on October 1, 1990.  Specifically, there was no 
 
                 mention made of a specific work-related incident 
 
                 which triggered these symptoms, and based on this 
 
                 information I could not establish a true 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 relationship between Ms. Wilken's work and the 
 
                 extruded disk.
 
            
 
                 This deputy has given great weight to the treating 
 
            surgeon.  He had numerous occasions to observe and treat 
 
            claimant.
 
            
 
                 Finally, there is the opinion of John E. Sinning, Jr., 
 
            M.D.  He too concurred with the opinion of Dr. Piepgras, 
 
            that there was no causal relationship between claimant's job 
 
            and her cervical spine condition.  According to Dr. Sinning, 
 
            he opined:  "It is my opinion that Mrs. Wilken's cervical 
 
            disc herniation came about as a spontaneous occurence [sic], 
 
            unrelated to her work.  I agree with Dr. Peipgras' [sic] 
 
            statement in this regard."  (Ex. 18, p. 210)
 
            
 
                 In light of the foregoing, it is the determination of 
 
            the undersigned deputy that claimant has failed to prove a 
 
            necessary element of her case.  Claimant has not established 
 
            the requisite causation element.  Claimant take nothing from 
 
            these proceedings.
 
            
 
                 Other issues need not be addressed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing from these proceedings
 
            
 
                 Each party shall pay her/its own costs pursuant to 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd  Box 1087
 
            Keokuk IA 52632
 
            
 
            Mr E J Giovannetti
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1108
 
                                          Filed May 18, 1992
 
                                          Michelle A. McGovern
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WANDA J. WILKEN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966343
 
            ARMOUR DIAL CO.,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SELF-INSURED,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108
 
            Claimant has failed to establish the requisite causal 
 
            connection between her cervical spine condition and her work 
 
            activities.  Claimant informed her supervisor that over a 
 
            weekend her neck started hurting, but she did not want to 
 
            blame the company.  Claimant gave no history of a work 
 
            injury to her treating medical practitioners.  Both the 
 
            treating surgeon and the evaluating physician denied there 
 
            was a causal relationship between claimant's work activities 
 
            and her cervical spine condition.