BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         STEVEN D. LASH,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 966575
 
         CITY OF KNOXVILLE,    
 
                                                 A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL COMPANIES,     
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         March 27, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Russell J. Hansen
 
         Mr. Daniel L. Manning
 
         Attorneys at Law
 
         820 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. David L. Jenkins
 
         Attorney at Law
 
         801 Grand Ave., Ste 3700
 
         Des Moines, Iowa 50309-2727
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              9998
 
                                              Filed October 28, 1992
 
                                              Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            STEVEN D. LASH,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 966575
 
            CITY OF KNOXVILLE,    
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed March 27, 
 
            1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN D. LASH,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 966575
 
                                          :
 
            CITY OF KNOXVILLE,            :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Steven D. Lash seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant employer City of Knoxville and defendant 
 
            insurance carrier Employers Mutual Companies.  He asserts a 
 
            cumulative injury to the cervical spine attributable to that 
 
            employment on April 8, 1990.
 
            
 
                 This cause came on for hearing in Des Moines, Iowa, on 
 
            February 3, 1992.  The record consists of claimant's 
 
            exhibits 1 through 21, defendants' exhibits A and B and the 
 
            testimony of claimant and Connie Harson.  Official notice of 
 
            Iowa Code chapter 411 was taken.  The depositions of 
 
            claimant, Brian D. Lange, D.C., Douglas R. Koontz, M.D., and 
 
            Daniel J. McGuire, M.D., were received as exhibits.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship between claimant and City of 
 
            Knoxville at all times relevant, to the extent of temporary 
 
            disability if a compensable injury be found, to the rate of 
 
            compensation, and that certain sick pay/disability and 
 
            hospitalization expenses were paid under Iowa Code chapter 
 
            411 prior to hearing.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment on April 8, 1990 (or, as 
 
            defendants maintain, on February 21, 1986);
 
            
 
                 2.  Whether there exists a causal relationship between 
 
            the asserted injury and temporary and/or permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of each;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27;
 
            
 
                 5.  Whether defendants are entitled to credit for 
 
            benefits paid under Iowa Code chapter 411; and,
 
            
 
                 6.  Whether the claim is barred as untimely under Iowa 
 
            Code section 85.26(1).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Steven D. Lash, 44 years of age at hearing, accepted 
 
            work as a patrolman with the City of Knoxville Police 
 
            Department in 1978.  He remained so employed until 1990, but 
 
            is now retired due to disability following cervical fusion 
 
            surgery in April of that year.  Although Mr. Lash did not 
 
            graduate from high school, he earned his GED in 
 
            approximately 1972, went on to earn a bachelor's degree in 
 
            criminal justice from Simpson College and is currently 
 
            taking community college courses to earn a certificate in 
 
            mortuary science.  Officer Lash is clearly motivated, and, 
 
            as shall be seen, stoic in the face of pain.
 
            
 
                 The story begins on February 21, 1986.  Claimant was 
 
            working the radio as a dispatcher that night when a 
 
            disturbance arose between another officer and an intoxicated 
 
            criminal suspect.  Claimant immediately went to help subdue 
 
            the suspect, but was knocked down and struck his head on the 
 
            desk or floor.  Afterwards, claimant noticed pain radiating 
 
            from the neck across the left shoulder and down the arm.  In 
 
            his trial testimony, Officer Lash asserts that he noticed 
 
            pain in both arms, but referred only to left-sided pain in 
 
            deposition testimony on February 29, 1991.
 
            
 
                 On February 24, claimant sought treatment from his 
 
            chiropractor, E. D. Tracy, D.C.  Dr. Tracy gave subsequent 
 
            treatments on April 23, July 24, October 23 and November 13, 
 
            1986, for "primary complaint of brachial neuritis/neuralgia 
 
            of left shoulder, arm and hand," as reported in a letter 
 
            dated March 27, 1987.
 
            
 
                 In August, claimant was seen at the Mater Clinic for 
 
            further evaluation of left shoulder and arm pain of three 
 
            weeks' duration.  Extensive cardiac testing was undertaken, 
 
            but proved negative.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant was next seen by another chiropractor, Brian 
 
            D. Lange, D.C., on November 25, 1986.  Initial complaints 
 
            were of a three-month history of left shoulder/neck and 
 
            arm/forearm pain with symptoms in the left thumb and first 
 
            two fingers.  Dr. Lange's testimony (by deposition on 
 
            October 29, 1991) indicates a recollection of generalized 
 
            unilateral neck pain radiating to the upper arm.  Dr. Lange 
 
            testified that claimant was in obvious acute distress, "at 
 
            times holding his arm, unable to sit still."
 
            
 
                 Dr. Lange took x-rays which he interpreted as showing a 
 
            reversal of the lordotic curve in the lower cervical spine 
 
            and a mild narrowing of the space between the lower two 
 
            cervical discs, consistent with a traumatic injury to the 
 
            cervical spine.  Dr. Lange concluded that the February 21 
 
            incident had probably caused a severe strain/sprain with 
 
            annular tears in the bottom one or two cervical discs 
 
            leading to "leakage" of nuclear material from the disc into 
 
            the nerve foramina.  A course of treatment was begun 
 
            including cervical traction, ultrasound, muscle stimulation 
 
            and hot moist packs.
 
            
 
                 Symptoms rather quickly improved, such that active 
 
            treatment ceased following December 12, 1986.  On that date, 
 
            Dr. Lange advised claimant that the chances were not good 
 
            that he could avoid surgery, at best perhaps 50/50.
 
            
 
                 In 1987, claimant submitted medical bills of Dr. Tracy 
 
            and Dr. Lange to Employers Mutual Companies.  These were 
 
            paid.  The carrier refused to cover costs of cardiac testing 
 
            at the Mater Clinic.  Officer Lash concluded that Employers 
 
            Mutual had (mistakenly, in his view) determined the entire 
 
            incident of February 21, 1986, was not compensable and 
 
            submitted no further medical bills until after April 1990.
 
            
 
                 There can be little doubt that claimant knew his injury 
 
            was work connected and serious in December 1986, since his 
 
            symptoms had continued so long and he was medically advised 
 
            that eventual surgery was probable.  There can also be 
 
            little doubt but that he realized the injury was 
 
            compensable, since he submitted medical billings to 
 
            Employers Mutual in 1987 and was indeed compensated.
 
            
 
                 Claimant returned to Dr. Lange next on March 22, 1988.  
 
            He reported intermittent neck pain since the last visit, but 
 
            further complained of having awakened with right-sided neck 
 
            pain three days before.  Dr. Lange noted that biceps reflex 
 
            was diminished on the right side, indicating the possibility 
 
            of symptoms stemming from a second level of the cervical 
 
            spine.  Treatment for several days brought good relief.
 
            
 
                 Officer Lash returned again on November 7, 1989, 
 
            following a flare-up approximately one week before.  He was 
 
            treated ten days and missed the last appointment, presumably 
 
            because he had improved significantly.
 
            
 
                 Claimant next appeared on April 4, 1990, complaining of 
 
            left and right arm pain, aching and throbbing with 
 
            headaches, low back pain and soreness in the right side of 
 
            the head and neck.  Three days of treatment resulted in no 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            improvement, and as claimant was reaching the end of his 
 
            ability to endure, Dr. Koontz instructed him to seek 
 
            surgical treatment.  Dr. Lange did not recall any particular 
 
            precipitating incident to bring him into the office, but 
 
            believed that symptoms had gradually become more and more 
 
            intense, finally forcing claimant to seek additional 
 
            treatment.  Dr. Lange testified that claimant had, by this 
 
            time, finally reached the point he had foreseen three and a 
 
            half years before.
 
            
 
                 Surgery was performed by Douglas R. Koontz, M.D., a 
 
            board-certified neurosurgeon.  When claimant was seen at 
 
            Mercy Hospital in Des Moines on April 8, 1990, the history 
 
            taken by Dr. Koontz included the following passage:
 
            
 
                 HISTORY:  Mr. Lash is 42 year old police officer 
 
                 from Knoxville, Iowa who states that about two 
 
                 years ago when "wrestling a drunk", he injured his 
 
                 neck.  He states that since that time he has had 
 
                 intermittent episodes of neck pain problems that 
 
                 he dealt with via his home town chiropractor and 
 
                 usually had good results.  He states that his 
 
                 chiropractor felt that more than likely he had a 
 
                 significant neck problem that would eventually 
 
                 require some surgery although the patient 
 
                 continued to get over the intermittent spells and 
 
                 has put this off.  He had a flare up last October 
 
                 which resolved and was doing quite well until 
 
                 about two to three weeks ago when he did some type 
 
                 of yoga maneuver at which point he hyperflexed his 
 
                 neck most likely, from what he describes, and has 
 
                 had severe neck pain on the right side with pain 
 
                 radiating into the right shoulder, arm and into 
 
                 the thumb and somewhat the index finger since.  
 
                 This is associated with intermittent numbness and 
 
                 tingling and he feels that his right arm is 
 
                 somewhat weak as well.
 
            
 
            (Dr. Koontz deposition exhibit 1, page 6)
 
            
 
                 Claimant did not miss any work between February 21, 
 
            1986, and his hospital admission in April 1990.  He 
 
            testified to pain in both arms, but mostly on the left side 
 
            during this lengthy interval.  At deposition, the following 
 
            exchange occurred:
 
            
 
                 Q.  Now, up until April of 1990, all your pain had 
 
                 been pretty much left-sided, hadn't it?
 
            
 
                 A.  Pretty much so.  I may have had one or two 
 
                 incidents where I had pain in the other arm, in 
 
                 the other side; but I would say 99.9 percent of 
 
                 the time it was this area.
 
            
 
                 Q.  And now, in 1990, had it shifted to where you 
 
                 were feeling much more pain and numbness and 
 
                 tingling on your right side?
 
            
 
                 A.  I felt some; but it was nothing compared to my 
 
                 left, and it wouldn't be there all the time.  You 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 know, this here had pain continuously, just some 
 
                 days it was harder than others.
 
            
 
                 This year I had, I thin, maybe--once or twice, 
 
                 maybe, I had problems on this side.  But mostly it 
 
                 was this one.
 
            
 
                 Q.  Okay.
 
            
 
                 A.  Left side.
 
            
 
                 Q.  On the day you went into the hospital, April 
 
                 8th, still you left side--left neck, shoulder, and 
 
                 arm--was the predominant problem for you?
 
            
 
                 A.  Yes.
 
            
 
            (Steven Lash deposition, page 64, line 4 through page 65, 
 
            line 1)
 
            
 
                 After admission, claimant underwent MRI testing which 
 
            showed a massively herniated disc at C5-6 on the right and 
 
            bony stenosis at C6-7 on the left, which Dr. Koontz saw as 
 
            indicating a second ruptured disc.  On April 11, Dr. Koontz 
 
            performed a discectomy and fusion at both levels.
 
            
 
                 Dr. Koontz is of the view that the initial injury in 
 
            1986 certainly created the disc rupture at C6-7 to the left 
 
            and most likely caused an injury to the C5-6 disc as well, 
 
            in that chronic changes were seen on that level 
 
            radiographically.  Dr. Koontz also believed that the C5-6 
 
            disc ultimately ruptured on the right and directly caused 
 
            the need for surgery.  If the acute pathology at C5-6 had 
 
            not developed, it was possible that claimant still could 
 
            have avoided surgery with respect to the left-sided C6-7 
 
            pathology, even though there was stenosis at that level 
 
            which would ultimately have become a problem; the left-sided 
 
            pathology was not the acute problem that required surgery in 
 
            April 1990.
 
            
 
                 As to the immediate need for surgery, the acute 
 
            rupture, Dr. Koontz testified:
 
            
 
                 Q.  Now, as to the C5-C6, is it your view that the 
 
                 rupture that you found there, the disk rupture, 
 
                 did not occur in 1986?
 
            
 
                 A.  I don't feel that the rupture did, no.
 
            
 
                 Q.  It's your belief that that occurred in--at the 
 
                 point where his pain increased in the two or so 
 
                 weeks before he saw you in April of 1990?
 
            
 
                 A.  Correct.
 
            
 
            (Dr. Koontz deposition, page 61, lines 18 through 25)
 
            
 
                 Dr. Koontz believed that the 1986 incident caused a 
 
            severe injury at C6-7 and a resulting injury at C5-6 based 
 
            on x-ray changes seen nine months later consistent with 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            degenerative and advanced change.  The doctor was "more 
 
            confident" that the acute onset of symptoms coincided with a 
 
            right-sided rupture at C5-6 in 1990.
 
            
 
                 Dr. Koontz testified that it was possible claimant's 
 
            work as a police officer could have aggravated his back 
 
            condition in the years following February 21, 1986.  He was 
 
            not familiar with claimant's duties other than generally as 
 
            a police officer and was unaware of any specific incidents, 
 
            such as wrestling more drunks on the job.
 
            
 
                 According to Officer Lash, there was no such acute 
 
            incident in 1990 as is described in Dr. Koontz' history.  To 
 
            start with, he does not do yoga exercises.  However, he was 
 
            doing range of motion neck exercises (unprescribed by any 
 
            physician) when he gradually developed pain.  At hearing, he 
 
            stated that he had not been doing neck exercises and was at 
 
            work when acute pain developed that was so significant as to 
 
            require medical attention.
 
            
 
                 Dr. Lange continued treating claimant.  In his view, 
 
            the "condition" of claimant in 1990 related back to the 1986 
 
            injury.  He believed claimant's continued work as a police 
 
            officer aggravated that condition.  Dr. Lange believed the 
 
            second disc had herniated through "cumulative trauma and 
 
            changes which occurred as a result of the permanent damage 
 
            done to the ligaments, annular disk fibers and the kinetics 
 
            of the cervical spine."  (Dr. Lange deposition, page 49, 
 
            line 24 through page 50, line 2).
 
            
 
                 Claimant was also seen for evaluation by Daniel J. 
 
            McGuire, M.D.  Dr. McGuire is a board-certified orthopaedic 
 
            surgeon.  He was deposed on January 28, 1992.  Dr. McGuire 
 
            believed that degenerative changes shown on films in 1986 
 
            and in 1990 were very similar, indicating that the 1986 
 
            injury had not been very severe, as degenerative changes 
 
            would become much worse in four years if it had been.  Dr. 
 
            McGuire felt that the 1986 injury had proven nondisabling, 
 
            even though claimant had intermittent increase of symptoms.  
 
            He further believed that the right-sided symptoms developed 
 
            for the first time in 1990 and directly caused the surgery 
 
            and all subsequent disability.  He did not believe that 
 
            employment as a police officer contributed to the 1990 
 
            condition, any more than just basic living.
 
            
 
                 The assumptions specifically relied on by Dr. McGuire 
 
            in formulating his opinions are incorrect in one important 
 
            respect.  He believed that claimant had no right-sided 
 
            symptoms whatsoever until immediately before requiring 
 
            surgery in 1990.  In fact, Dr. Lange and claimant's 
 
            testimony confirm earlier complaints of right-sided 
 
            symptoms.  Nonetheless, it is clear from claimant's 
 
            deposition testimony that left-sided symptoms were much more 
 
            severe, perhaps 99.9 percent of his problem.  Thus, it seems 
 
            that the "massive" right-sided herniation occurred with the 
 
            onset of severe symptoms shortly before surgery, if, as Dr. 
 
            Koontz suggests, against the backdrop of degenerative 
 
            changes related to the 1986 injury.
 
            
 
                 Dr. Koontz' opinions as to causation are the most 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            convincing.  Claimant suffered a left-sided herniation at 
 
            C6-7 in 1986 with damage to the next higher level, C5-6, 
 
            which resulted in degenerative changes seen on x-ray films 
 
            in November of that year.  This would explain intermittent 
 
            symptoms for the next four years, but much greater on the 
 
            left.  In 1990, for whatever reason, claimant suffered an 
 
            acute onset of symptoms which related to a rupture on the 
 
            right side at C5-6.  The increase in symptoms is most 
 
            significantly related to performing neck exercises, if any 
 
            specific incident.
 
            
 
                 Officer Lash filed his petition in arbitration on 
 
            January 30, 1991.
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.26(1) provides:
 
            
 
                 An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 The statute of limitations is an affirmative defense.  
 
            Dart v. Sheller-Globe Corp., II Iowa Industrial 
 
            Commissioner Report 99 (1982).  Defendants paid medical 
 
            benefits on this claim, but no weekly benefits.  Because no 
 
            weekly benefits were paid, the two-year statute of 
 
            limitations applies.  Thus, claimant's petition is untimely 
 
            with respect to the events of February 21, 1986.
 
            
 
                 However, Iowa has adopted the "discovery rule" in cases 
 
            involving the two-year statute of limitations.  Orr v. Lewis 
 
            Cent. School Dist., 298 N.W.2d 256 (Iowa 1980).  That is, 
 
            the two-year period in which to file a claim does not start 
 
            running until the worker should know his injury is both 
 
            serious and work connected.  Id.  In determining when the 
 
            worker "should know," a reasonable person standard is to be 
 
            applied, taking into account the intelligence and education 
 
            of the worker.  Robinson v. Dep't of Transp., 296 N.W.2d 809 
 
            (Iowa 1980); Koopmans v. Iowa Electric Light & Power Co., 
 
            File No. 694831 (App. Decn., December 30, 1987).
 
            
 
                 By November 1986, claimant suffered continuing symptoms 
 
            following treatment by two chiropractors and was 
 
            specifically advised that he would probably require future 
 
            surgery.  There is no question but that Officer Lash 
 
            attributes those symptoms to the February 1986 injury.  
 
            There is also no doubt but that he considered the injury 
 
            compensable, since he submitted bills from Drs. Lange and 
 
            Tracy in 1987, and the bills were accepted by Employers 
 
            Mutual.  Thus, the discovery rule avails claimant naught.
 
            
 
                 But claimant alleges a cumulative injury effective when 
 
            he first had to leave work, April 8, 1990.  He probably 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            would have missed work at an earlier time, but felt that he 
 
            would be "harassed" by the assistant police chief if he did.  
 
            In cases of cumulative trauma, the injury date is deemed to 
 
            have occurred when, due to pain or physical inability, 
 
            claimant is no longer able to work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  Although Dr. 
 
            Lange, the chiropractor, believed that claimant's continued 
 
            work aggravated his condition and Dr. Koontz believed that 
 
            it could, Dr. McGuire believed that it did not.  There is no 
 
            evidence of continued traumas, fights, drunk wrestling or 
 
            the like to indicate what the nature of such cumulative 
 
            "traumas" might be; rather, claimant pointed to such mundane 
 
            activities as looking both ways at intersections while 
 
            driving.  The evidence is much more consistent with the 
 
            opinions of Dr. Koontz and Dr. McGuire:  there was a sudden 
 
            herniation shortly before claimant's 1990 surgery.  While 
 
            this herniation may not have occurred while claimant was 
 
            performing neck exercises, the sudden and dramatic increase 
 
            of symptoms on the right side charted by Dr. Koontz is more 
 
            consistent with a sudden herniation than a "cumulative" 
 
            herniation.  It should also be noted that Drs. Koontz and 
 
            McGuire are board certified as a neurosurgeon and an 
 
            orthopaedic surgeon, while Dr. Lange is a chiropractor.  The 
 
            opinions of board-certified physicians are commonly given 
 
            greater weight.  Richland v. Palco, Inc., Thirty-second 
 
            Biennial Report of the Industrial Commissioner 56 (1975).
 
            
 
                 Although claimant first left work in April 1990, the 
 
            record does not support a conclusion that his right-sided 
 
            herniation came on as a "second" injury resulting from 
 
            gradual trauma.  It is better supported by the evidence to 
 
                     Claimant shall take nothing further from this action.
 
            
 
                 The costs of this action are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Daniel L. Manning
 
            Attorney at Law
 
            820 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. David L. Jenkins
 
            Attorney at Law
 
            801 Grand Avenue, Suite 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               2209; 2402
 
                                               Filed March 27, 1992
 
                                               DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            STEVEN D. LASH,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 966575
 
                                          :
 
            CITY OF KNOXVILLE,            :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2209; 2402
 
            Police officer suffered neck injury with mostly left-sided 
 
            radiating pain in February 1986.  In December, still with 
 
            intermittently severe symptoms, he was advised that eventual 
 
            surgery would probably be required.  In 1987, claimant 
 
            submitted some medical bills to defendants; these were 
 
            honored.
 
            In 1990, claimant experienced severe onset of right-sided 
 
            pain.  Up to this point, he had stoically gone to work every 
 
            day.  Two-level disc herniation was found and treated by 
 
            fusion surgery.
 
            The medical evidence showed that claimant suffered a 
 
            herniation at one level in 1986, plus resulting damage to 
 
            the second level -- which eventually herniated in 1990, 
 
            possibly when claimant was doing neck exercises on his own 
 
            prescription.
 
            The second herniation was not found to be a subsequent, 
 
            cumulative injury, but was causally related to the 1986 
 
            traumatic injury.  Even though this severe exacerbation was 
 
            not foreseen by claimant, the discovery rule did not assist 
 
            him.  LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1985).  
 
            Considering claimant's intelligence and education, he should 
 
            have known by December 1986 that his injury was both serious 
 
            and work connected.  As no weekly benefits were paid, the 
 
            two-year statute of limitations barred the claim.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                        :
 
         LARRY SCHEUERMANN,             :
 
                                        :         File No. 966586
 
              Claimant,                 :
 
                                        :      A R B I T R A T I O N
 
         vs.                            :
 
                                        :         D E C I S I O N
 
         OSCAR MAYER FOODS CORPORATION, :
 
                                        :
 
              Employer,                 :
 
              Self-Insured,             :
 
              Defendant.                :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Larry Scheuermann, against his employer, Oscar Mayer 
 
         Foods Corporation, self-insured employer, defendant.  The case 
 
         was heard on January 13, 1992, in Des Moines, Iowa at the office 
 
         of the Industrial Commissioner.  The record consists of the 
 
         testimony of claimant, as well as the testimony of Ms. Leslie 
 
         Whippen, audiologist, and the testimony of Niel Ver Hoef, 
 
         audiologist.  Additionally, the record consists of claimant's 
 
         exhibits 1-18 and defendant's exhibits A-D.  Finally, 
 
         administrative notice was taken of the official file, as well as 
 
         the official file for Scheuermann v. Oscar Mayer Foods Corp., 
 
         File number 928147 (Arbitration Decision filed March 8, 1991).
 
         
 
                                      issues
 
         
 
              The issues to be determined are:  1) whether claimant 
 
         sustained an occupational hearing loss which arose out of and in 
 
         the course of employment with employer; 2) whether there is a 
 
         causal relationship between the alleged injury and the 
 
         disability; 3) whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial 
 
         disability benefits; and, 4) whether claimant is entitled to 
 
         medical benefits.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant worked for Oscar Mayer for over 25 years as a meat 
 
         cutter.  Primarily, claimant worked on the cut floor where he 
 
         pulled loins, trimmed picnics and trimmed neck bones.
 
         
 
              The last day claimant worked at defendant-employer's plant 
 
         was December 30, 1987.  In January of 1988 claimant had open 
 
         heart surgery for a heart condition which was unrelated to his 
 
         work activity.  Claimant also had hand surgery.  Claimant 
 
         intended to return to work, however, the plant closed on February 
 
         3, 1989.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
              Claimant testified that over the course of his employment, 
 
         he began noticing problems with his hearing.  He stated that when 
 
         people spoke to him, he had difficulty discriminating words and 
 
         certain sounds.
 
         
 
              Claimant described his work station.  For the last 10 years 
 
         of his employment, claimant pulled loins on the cut floor.  He 
 
         testified he would have to talk very loudly if he wanted to speak 
 
         to someone near his work station.  He also testified he would 
 
         have to stand within three feet of a person if he wanted to speak 
 
         to that individual.  Claimant also indicated that in his 
 
         department there were clanging noises and humming motors.
 
         
 
              As far back as 1976, defendant-employer began giving hearing 
 
         tests to its employees.  Claimant was one of the employees.
 
         
 
              Claimant had hearing tests at work in 1976, 1977, 1978, 
 
         1981, 1982, 1984 and in July of 1987.  Additionally, claimant had 
 
         a hearing test by an independent audiologist on March 13, 1989 
 
         and on November 26, 1991.
 
         
 
              Defendant developed a hearing conservation program after the 
 
         Division of Labor Services, consultation bureau, conducted noise 
 
         monitoring surveys.  The results of the September 2, 1987, 
 
         monitoring showed that:
 
         
 
             _______________________________________________________
 
                                      Time Sampled         8-hr. TWA
 
              Location                 (Minutes)           Exposurea
 
         
 
              Wanderer                    425                 90b
 
         
 
              Stomach - Vise Line         415                 90b
 
         
 
              Pull Leaf Lard              420                 90b
 
         
 
              Shaving                     450                 98
 
         
 
              Dropping Heads              445                 91b
 
         
 
              Back Saw                    440                 94
 
         
 
              Head Table                  190                 89c
 
         
 
                 Kill - Utility              455                 98 
 
         
 
         
 
              a8-hour Time Weighted Average (TWA) exposure, assuming 
 
              unsampled time to be less than 80 dBA.
 
         
 
              bThese exposures are not considered to be in excess of 
 
              the PEL due to a plus/minus2 dBA error factor inherent 
 
              in the noise monitoring equipment.
 
         
 
              cThis exposure is a 4 hour sample and represents what 
 
              an 8 hour TWA exposure would be if exposed for eight 
 
              hours.
 
         For the last three years of his employment, claimant wore 
 
         mandatory hearing protection.  Claimant testified he perceived 
 
         his work area as noisy, although a noise monitoring survey was 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         not taken of the cut floor.  It is clear the work environment was 
 
         generally noisy.
 
         
 
              Leslie A. Whippen, M.D., a licensed audiologist, testified 
 
         on behalf of claimant.  She first became acquainted with claimant 
 
         in 1989 when he saw her for an audiometric evaluation.  Ms. 
 
         Whippen performed audiometric tests on claimant.  The test 
 
         results, in Ms. Whippen's opinion showed that:
 
         
 
                 Q.  Were you able to draw any conclusions as a 
 
              consequence of that test as would regard whether this 
 
              gentleman has any hearing loss?
 
         
 
                 A.  Yes.  At the time he had a mild sloping to 
 
              severe hearing loss in the right ear.  The left ear is 
 
              slightly poorer than that extended through more of the 
 
              frequency range in its severity.  And it's 
 
              sensorineural in nature, which means that it's a 
 
              permanent type of hearing loss, in other words, no 
 
              medical correction.  There's nothing wrong with the 
 
              eardrum or the bones.  It's in the cochlea, which is 
 
              nonoperable generally.
 
         
 
         (Transcript page 46, lines 7-18)
 
         
 
              Ms. Whippen recommended correction in both ears as claimant 
 
         had more than a 25 dBA loss.  The audiologist also testified that 
 
         while she did not know the decibel levels on any given day at 
 
         claimant's work station, she opined claimant's audiogram looked 
 
         very similar to an audiogram from someone who was exposed to 
 
         noise.  Additionally, Ms. Whippen opined that claimant's hearing 
 
         loss was obtained through excessive exposure to noise.  She 
 
         confirmed under cross-examination that she had no information 
 
         about decibel levels to which claimant was exposed.  Neither did 
 
         Ms. Whippen have any information relative to the length of 
 
         exposure to noise to which claimant was exposed.
 
         
 
              Niel Ver Hoef, an audiologist, testified for defendant.  
 
         From 1975 to 1983 he recertified the testing room and he 
 
         recalibrated defendant's audiometer on an annual basis.  The 
 
         witness opined that claimant sustained a hearing loss between 
 
         1981 or 1982 and 1984.  However, Mr. Ver Hoef was unable to 
 
         establish the cause of that hearing loss.  Moreover, the 
 
         audiologist testified the greatest hearing loss was sustained by 
 
         claimant between 1987 and 1989 and not between 1976 and 1987 when 
 
         claimant was actually working on the cut floor.
 
         
 
              Additionally, Mr. Van Hoef testified that when the Division 
 
         of Labor Services conducted its noise survey, the cut floor was 
 
         not defined as one of the potentially hazardous areas.  Mr. Van 
 
         Hoef assumed that area was not above the PEL or the 90 decibel 
 
         scale, a time - weighted average (Tr. p. 98, ll. 4-10).  However, 
 
         the expert noted that employees on the cut floor were targeted 
 
         for the hearing conservation program.
 
         
 
                                conclusions of law
 
         
 
              Occupational hearing loss is defined in section 85B.4.  
 
         Under the section, an occupational hearing loss is a permanent 
 
         sensorineural loss of hearing in one or both ears in excess of 25 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         decibels which arose out of and in the course of the employment 
 
         and was caused by prolonged exposure to excessive noise levels.  
 
         An excessive noise level is sound capable of producing 
 
         occupational hearing loss or sound exceeding the time and 
 
         intensities listed in the table in section 85B.5 or both.  See 
 
         Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
 
         
 
              The table in section 85B.5 then, is not the minimum standard 
 
         defining an excessive noise level in section 85B.4(2).  The table 
 
         in section 85B.5 lists noise level times and intensities which, 
 
         if met, will be presumptively excessive noise levels of which the 
 
         employer must inform the employee.  See Muscatine County, 409 
 
         N.W.2d 685 (Iowa 1987).
 
         
 
              With any type of workers' compensation claim, including an 
 
         occupational hearing loss claim, the claimant has the burden of 
 
         proving by a preponderance of the evidence that he has a hearing 
 
         loss due to noise exposure in the work environment and it is 
 
         causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-614 (Iowa 
 
         1945).  A possibility is insufficient; a probability is neces
 
         sary.  Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
         738 (Iowa 1955).  The question of causal connection is essen
 
         tially within the domain of expert testimony.  Bradshaw v. Iowa 
 
         Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).
 
         
 
              The Iowa Supreme Court has indicated that there can be a 
 
         hearing loss even if the noise level is below the level indicated 
 
         in Iowa Code section 85B.5 (1989).  Muscatine County, 409 N.W.2d 
 
         685, 688 (Iowa 1987).  The Court also indicated that if the 
 
         tables set out in Iowa Code section 85B.5 (1989) were not impli
 
         cated in claimant's hearing loss, then the claimant must prove 
 
         the loss of hearing was due to exposure to sound at work capable 
 
         of producing that loss.  Duration and intensity of exposure will 
 
         be helpful to prove the necessary link between noise at work and 
 
         the hearing loss.  Id. at 688.
 
         
 
              This deputy refers the parties to the decision of Deputy 
 
         Nelson in Scheuermann v. Oscar Mayer Foods Corp., File No. 
 
         928147, Filed March 8, 1991.  In that case Deputy Nelson wrote in 
 
         relevant part:
 
         
 
              In this instance there is evidence that claimant worked 
 
              in a noisy environment, but that is the only thing the 
 
              claimant proved.  The evidence is [sic] reveals that 
 
              Oscar Mayer thought that the noise on the cut floor was 
 
              at or exceeded 85db.  However, the evidence is not 
 
              clear that this was the noise level all the time and 
 
              that this level of noise caused a permanent occupa
 
              tional hearing loss in the claimant.  The claimant tes
 
              tified that the noise level on the cut floor was not as 
 
              loud as the kill floor.  The kill floor noise level was 
 
              at 98db.  Claimant also testified that he stood about 
 
              50 feet from the shaving area which had a noise level 
 
              of 98db.  From this testimony, the evidence suggests 
 
              that the noise level was less than 98db.  Since the 
 
              differential between the range of noise levels is sig
 
              nificant, it would be speculative to conclude that the 
 
              tables in Iowa Code section 85B.5 were implicated in 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              this instance.  Such speculation cannot form the basis 
 
              for an award for worker's compensation benefits. Burt 
 
              v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
              737-738 (Iowa 1956).  
 
         
 
              However, even assuming that the noise level on the cut 
 
              floor was excessively noisy and claimant was exposed to 
 
              constant noise level for nearly 25 years, which pro
 
              duced a hearing loss as the court in Muscatine County, 
 
              409 N.W.2d at 688 suggests, this conclusion the appli
 
              cation of the duration and intensity test articulated 
 
              in Muscatine County, 409 N.W.2d at 688, does not 
 
              relieve claimant of his burden to show not only a hear
 
              ing loss but one that is permanent and in excess of 
 
              25db.  There is no evidence in the record that shows 
 
              that claimant has suffered a permanent sensorineural 
 
              loss of hearing in one or both ears in excess of 
 
              twenty-five decibels.  The only evidence of sensorineu
 
              ral hearing loss is a statement by the audiologist on 
 
              her report of March 13, 1989 that there has been a 
 
              loss.  There is no evidence of the amount of the loss.  
 
              The follow-up letter dated July 27, 1989 from the audi
 
              ologist reports the result of the March 13, 1989 test.  
 
              But, there is no interpretation, or any comparison of 
 
              the audiometric tests performed at Oscar Mayer and the 
 
              test performed in March of 1989.  The Oscar Mayer 
 
              audiometric tests submitted by claimant are meaningless 
 
              without some accompanying interpretation and comparison 
 
              to the last test performed in March of 1989.  
 
              Additionally, the audiologist apparently marked the 
 
              normal hearing threshold areas on her report, but this 
 
              information is not on the exhibit submitted as part of 
 
              the record in this case.  There is no way to discern 
 
              from the report submitted how much of a loss the 
 
              claimant has suffered.  Consequently, claimant has 
 
              failed to sustain his burden of proof and takes nothing 
 
              from this proceeding.
 
         
 
              In the instant case, claimant has demonstrated that he has a 
 
         permanent sensorineural loss of hearing in one or both ears in 
 
         excess of 25 decibels.  Ms. Whippen's testimony and her test 
 
         results establish the requisite permanent sensorineural loss of 
 
         hearing.  However, the cause of that hearing loss has not been 
 
         established.  Ms. Whippen testified she had no information rela
 
         tive to the noise level on the cut floor.  Likewise, Ms. Whippen 
 
         admitted she had no records relative to the length of exposure to 
 
         noise to which claimant was exposed.  Mr. Van Hoef testified he 
 
         could not establish the cause of claimant's condition.  The 
 
         record indicates cut floor employees, including claimant, were 
 
         targeted for a hearing conservation program.  However, there was 
 
         no evidence that the actual noise level was above the Permissible 
 
         Exposure level (PEL), or even what the actual level was.  
 
         Claimant has not met his burden of proof.
 
         
 
              In light of the foregoing, claimant is unable to establish 
 
         the cause of his permanent hearing loss.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
              Claimant shall take nothing from these proceedings.
 
         
 
              Costs of this action are taxed to claimant.
 
         
 
         
 
              Signed and filed this ____ day of March, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Avenue
 
         Suite 201
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street
 
         Suite 16
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1108; 2208
 
            Filed March 6, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                           :
 
            LARRY SCHEUERMANN,             :
 
                                           :         File No. 966586
 
                 Claimant,                 :
 
                                           :      A R B I T R A T I O N
 
            vs.                            :
 
                                           :         D E C I S I O N
 
            OSCAR MAYER FOODS CORPORATION, :
 
                                           :
 
                 Employer,                 :
 
                 Self-Insured,             :
 
                 Defendant.                :
 
            ___________________________________________________________
 
            
 
            
 
            1108; 2208
 
            In file number 928147 claimant alleged a hearing loss due to 
 
            exposure to noise in the work environment.  Deputy Nelson 
 
            determined claimant had failed to meet his burden of proof 
 
            that claimant had suffered a permanent sensorineural hearing 
 
            loss in excess of 25 decibels in one or both ears.
 
            Claimant then filed file number 966586 and alleged a 
 
            separate injury date.  A hearing was held on January 13, 
 
            1992.  In the latter case, claimant, along with the 
 
            testimony of an audiologist, was able to establish the 
 
            requisite permanent sensorineural loss of hearing.  However, 
 
            claimant was not able to establish the cause of the hearing 
 
            loss.  Claimant's expert testified that she had no 
 
            information relative to the length of exposure to noise, if 
 
            any.
 
            Likewise, the audiologist had no information concerning the 
 
            level of noise at claimant's work station.  Additionally, 
 
            defendant's expert audiologist testified he could not 
 
            establish the cause of claimant's condition.  finally, there 
 
            was no evidence that the actual noise level at claimant's 
 
            work station above the PEL.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY LAMBERSON,               :
 
                                          :
 
                 Claimant,                :
 
                                          :     File No. 966589
 
            vs.                           :              966590
 
                                          :
 
            OSCAR MAYER FOODS CORP.,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                  STATEMENT OF THE CASE
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Judy Lamberson, claimant, against Oscar Mayer 
 
            Foods Corp, employer, and the Second Injury Fund, 
 
            defendants, for workers' compensation benefits as a result 
 
            of alleged injuries on July 7, 1989, and April 26, 1990.   
 
            On September 15, 1992, a hearing was held on claimant's 
 
            petitions and the matters were considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript. 
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Oscar Mayer Foods Corp. at the time of the 
 
            alleged injuries.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits beyond those stipulated as paid 
 
            in the prehearing report.                    
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is a scheduled member 
 
            disability to the body as a whole with reference to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            defendant Oscar Mayer Foods Corp.
 
                 4. If permanent partial disability benefits are 
 
            awarded, they shall begin as of September 18, 1989, for the 
 
            first injury and April 14, 1991, for the second injury.
 
            
 
                 5.  At the time of injuries, claimant's gross rate of 
 
            weekly compensation was $348; she was married; and, she was 
 
            entitled to two exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $222.90, according to the industrial 
 
            commissioner's published rate booklet for injuries during FY 
 
            90.  This rate is different than the parties' stipulation 
 
            but the parties were advised at hearing that the 
 
            commissioner's rate booklets are controlling.
 
            
 
                                        ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                 I.  Whether claimant received injuries arising out of 
 
            and in the course of employment;
 
            
 
                 II. The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27.
 
            
 
                                  FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant worked for Oscar Mayer Foods Corp. from 
 
            December 1970 until August 1990, when she was advised by her 
 
            treating physician to leave work entirely following an 
 
            attempt to return to work part-time during the spring and 
 
            summer of 1990.  She has not returned to Oscar Mayer Foods 
 
            Corp. since.  Claimant began as a cafeteria worker in 1979 
 
            but transferred into the plant after ten years.  During the 
 
            time of the alleged injuries herein, she was a packer which 
 
            required extensive repetitive use of her hands and arms in 
 
            packing meat products into boxes.  According to an Oscar 
 
            Mayer Foods Corp. safety committee report, overuse injuries 
 
            similar to the ones alleged by claimant occurred in packing 
 
            jobs throughout the plant.
 
            
 
                 On or about July 7, 1989, claimant injured her right 
 
            wrist, forearm and elbow in the packing job at Oscar Mayer 
 
            Foods Corp.  This injury arose out of and in the course of 
 
            her employment.  The injury involved carpal tunnel syndrome 
 
            of the right wrist, pronator syndrome  of the right forearm 
 
            and ulnar nerve neuropathy of the right elbow.  These 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            overuse conditions were caused by claimant's repetitive use 
 
            of her right hand and arm at Oscar Mayer Foods Corp. in the 
 
            packing job prior to July 7, 1989.  Medical opinions 
 
            causally connecting these conditions to her packing work at 
 
            Oscar Mayer Foods Corp. are uncontroverted.  
 
                 
 
                  Pain and aching symptoms from these diagnosed 
 
            conditions on the right began in the latter part of 1988.  
 
            The injury date of July 7, 1989, was chosen because this was 
 
            the first date these symptoms compelled claimant to leave 
 
            work for an extended period of time to receive treatment in 
 
            the form of decompression surgery to the right wrist, right 
 
            forearm and right elbow and recovery therefrom.
 
                 
 
                 On or about April 26, 1990, claimant separately injured 
 
            her left wrist and left elbow in her job at Oscar Mayer 
 
            Foods Corp.  This injury arose out of and in the course of 
 
            her employment.  The injury involved carpal tunnel syndrome 
 
            of the left wrist and ulnar nerve neuropathy of the left 
 
            elbow.  These overuse conditions were caused by claimant's 
 
            repetitive use of her left hand and arm at Oscar Mayer Foods 
 
            Corp. in the packing job prior to April 26, 1990. Medical 
 
            opinions causally connecting these conditions to her packing 
 
            work at Oscar Mayer Foods Corp. are uncontroverted.  
 
                 
 
                 Pain and aching symptoms from these diagnosed 
 
            conditions on the left began at approximately the same time 
 
            as the right arm symptoms in the latter part of 1988.  The 
 
            injury date of April 26, 1990 was chosen because this was 
 
            the first date left wrist and elbow symptoms compelled 
 
            claimant to leave work for an extended period of time to 
 
            receive treatment in the form of decompression surgery of 
 
            the left wrist and a transposition of the ulnar nerve in the 
 
            elbow and recovery therefrom.
 
            
 
                 It is specifically found that the left hand and elbow 
 
            injury is a separate and distinct injury from the right 
 
            hand, forearm and elbow injury.  This is based primarily 
 
            upon the views and observations of the treating physician, 
 
            William Irey, M.D., an orthopedic surgeon.  Two other 
 
            opinions in the record were not given much weight as they 
 
            were  one-time evaluators who are not orthopedic surgeons.  
 
            Dr. Irey states that although the symptoms began on the left 
 
            and right at approximately the same time, these problems 
 
            developed at different times.  From a review of the record, 
 
            Dr. Irey did not diagnose left carpal tunnel or left ulnar 
 
            nerve problems until April 3, 1990, after claimant had 
 
            attempted a return-to-work and began to experience symptoms 
 
            similar to the right side.  This, then, compelled Dr. Irey 
 
            to retest claimant with an EMG.  This retesting in April 
 
            1990 revealed left carpal tunnel syndrome and ulnar nerve 
 
            neuropathy.  EMG testing before that time on June 22, 1989,  
 
            was abnormal on the right but normal on the left, according 
 
            to Dr. Irey.  Given what she reported as symptoms to Dr. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Irey and Dr. Irey's testing, claimant's work activity after 
 
            she returned to work in September 1989 from the right hand 
 
            surgery was the precipitating cause of claimant's second 
 
            work injury of April 26, 1990.  This finding is further 
 
            supported by Dr. Irey's separate healing periods for each 
 
            condition.  The doctor felt claimant had reached maximum 
 
            healing for the right side injury when he gave his right arm 
 
            permanent impairment rating in December 1990. But, the 
 
            doctor felt claimant reached maximum healing on the left 
 
            side much later when he gave his left arm permanent rating 
 
            in May 1991.
 
            
 
                 The work injury of July 7, 1989 is found to be a cause 
 
            of a 12 percent permanent impairment to the right arm.   The 
 
            work injury of April 26, 1990  is found to be a cause of a 
 
            15 percent permanent impairment to the left arm.  Ratings of 
 
            the treating orthopedic surgeon were given greater weight 
 
            than the ratings of the two one-time evaluators, J.R. Lee, 
 
            M.D., and Barry Lake Fischer, M.D., who were not orthopedic 
 
            surgeons.  Also, only Dr. Irey specifically mentioned use of 
 
            a standardized rating guide, namely the AMA Guides to the 
 
            Evaluation of Permanent Impairment.
 
            
 
                 Claimant asserts that the rating of Dr. Lee was not a 
 
            true independent or separate examination from the rating of 
 
            Dr. Irey.  No evidence was submitted to support such a 
 
            contention.  The fact that the rating results were identical 
 
            by itself is not proof of any collusion between Dr. Lee and 
 
            Dr Irey.  It is just as likely that the results were the 
 
            same because they were the most accurate ratings.
 
            
 
                 With reference to the loss of earning capacity as a 
 
            result of the combined effects of the first and second 
 
            injuries, it is found claimant is 44 years of age and a high 
 
            school graduate.  She held only minimum wage jobs as a 
 
            waitress and cashier prior to working at Oscar Mayer Foods 
 
            Corp.  Dr Irey imposed permanent work restrictions as a 
 
            result of the right-sided arm problems in November 1990 
 
            consisting of no lifting over 10 pounds, no working in the 
 
            cold, no repetitive lifting and no repetitive gripping.  
 
            Such permanent restrictions would prevent claimant from 
 
            working in her packing job at Oscar Mayer Foods Corp. and 
 
            most other jobs at Oscar Mayer Foods Corp.  Attempts by 
 
            claimant to return to full duty before she left work for the 
 
            second injury were clearly unsuccessful due to continued 
 
            work aggravation of her right arm problems.  However, it is 
 
            found that claimant was highly motivated to return to work. 
 
            She made several attempts to continue working despite the 
 
            pain but the attempts failed.
 
            
 
                 Furthermore, Dr. Irey gave a separate impairment rating 
 
            for the left-sided problems.  No permanent work restrictions 
 
            were specifically given by Dr. Irey as a result of the left 
 
            arm problems probably because Dr. Irey already concluded 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant could not return to work at Oscar Mayer Foods Corp. 
 
            due to her right arm problems.  Plant nurses at Oscar Mayer 
 
            Foods Corp., however, applied Dr. Irey's restrictions to 
 
            both hands.   
 
            
 
                 It was not until claimant began to experience 
 
            disability left-sided problems in November 1989 from which 
 
            she did not recover that Dr. Irey began to discuss with 
 
            claimant the need to consider alternate type of work.  Also, 
 
            claimant was not able to work in limited duty until after 
 
            the left arm injury.  Although the first injury herein is 
 
            the primary cause of claimant's current disability, the  
 
            combined effect of the first and second injury has resulted 
 
            in a substantial loss of employability.
 
            
 
                 Claimant is unable to return to work at Oscar Mayer 
 
            Foods Corp., the highest paying job she has ever held.  She 
 
            has applied at over 20 local businesses in the area of her 
 
            residence without securing employment.  However, no 
 
            physician has indicated that she is wholly unable to work.  
 
            There is no evidence that she would  be unable to return to 
 
            the waitress or cashier work she had in the past albeit at 
 
            minimum wage.
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the combined effect of the 
 
            first and second work injuries in this case is a cause of a 
 
            50 percent loss of earning capacity.
 
            
 
                 It is found that a second opinion as to treatment 
 
            alternatives by a Dr. Eugene Collins would be beneficial and 
 
            reasonable.  In his office note of January 17, 1992, Dr. 
 
            Irey states that he concurred with claimant's request for a 
 
            second opinion as to further care and agreed to arrange for 
 
            this.  Dr. Irey had no further treatment recommendations to 
 
            offer claimant at that time.  This request was rejected by 
 
            defendant Oscar Mayer Foods Corp. for unspecified reasons.  
 
            It is found that this second opinion constitutes reasonable 
 
            and necessary treatment.
 
            
 
                 It cannot be found from the evidence that the 
 
            examination of claimant in this matter by Barry Lake 
 
            Fischer, M.D., constituted treatment of the work injury. It 
 
            is clear from the wording of the report that claimant was 
 
            not inquiring as to treatment alternatives but desired only 
 
            an impairment rating. Evaluation of disability is not 
 
            treatment.  
 
            
 
                                        CONCLUSIONS OF LAW
 
            
 
                 I. Claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant received an 
 
            injury arising out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury. See generally, Cedar Rapids, 
 
            Comm. Sch.  Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979);  
 
            Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 
 
            63 (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments. A work-connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and 
 
            cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event. It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            to give up his job.  This date was then used by the court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.  
 
            
 
                 In the case sub judice, claimant demonstrated by the 
 
            preponderance of the evidence two separate injury processes 
 
            at different times under the McKeever doctrine.   
 
            
 
                 II. LIABILITY OF DEFENDANT OSCAR MAYER.  The parties 
 
            stipulated that Oscar Mayer Foods Corp.'s liability for 
 
            permanent disability benefits is scheduled.  When the result 
 
            of an injury is loss to a scheduled member, the compensation 
 
            payable is limited to that set forth in the appropriate 
 
            subdivision of Code section 85.34(2).  Barton v.  Nevada 
 
            Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
            of use" of a member is equivalent to "loss" of the member.   
 
            Moses v. National Union C.M. Co., 184 N.W. 746 (1922).  
 
            Pursuant to Code section 85.34(2)(u), the industrial 
 
            commissioner may equitably prorate compensation payable in 
 
            those cases where the loss is something less than that 
 
            provided for in the schedule. Blizek v. Eagle Signal 
 
            Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 12 percent permanent loss of use of his right arm 
 
            and a 15 percent permanent loss of use of his left arm.   
 
            Based on such a finding, claimant is entitled to 30 weeks 
 
            (for the right arm) and 37.5 weeks (for the left) of 
 
            permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(m) which is 12 percent and 15 percent 
 
            respectively of 250 weeks, the maximum allowable number of 
 
            weeks of disability for an injury to the arm in that 
 
            subsection.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 III.  SECOND INJURY FUND LIABILITY.  Claimant also 
 
            seeks additional disability benefits from the Second Injury 
 
            Fund under Iowa Code sections 85.63--85.69.  This fund was 
 
            created to compensate an injured worker for a permanent 
 
            industrial disability resulting from the combined effect of 
 
            two separate injuries to a scheduled member.  The purpose of 
 
            such a scheme of compensation was to encourage employers to 
 
            hire or retain handicapped workers. See Anderson v Second  
 
            Injury Fund, 262 N.W.2d 789 (Iowa 1978).  There are three 
 
            requirements under the statute to invoke second injury fund 
 
            liability.  First, there must be a permanent loss or loss of 
 
            use of one hand, arm, foot, leg or eye.  Secondly, there 
 
            must to a permanent loss or loss of use of another such 
 
            member or organ through a compensable subsequent injury.  
 
            Third, there must be permanent industrial disability to the 
 
            body as a whole arising from both the first and second 
 
            injuries which is greater in terms of relative weeks of 
 
            compensation than the sum of the scheduled allowances for  
 
            those injuries.  If there is greater industrial disability 
 
            due to the combined effects of the prior loss and the 
 
            secondary loss than equals the value of the prior and 
 
            secondary losses combined, then the fund will be charged 
 
            with the difference.  Id.
 
            
 
                 In the case sub judice, it was found that the combined 
 
            effect of both injuries resulted in a 50 percent loss of 
 
            earning capacity or industrial disability.  Based on such a 
 
            finding, claimant is entitled to 250 weeks of permanent 
 
            partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 50 percent of 500 weeks, the maximum 
 
            allowable number of weeks allowed for an industrial or body 
 
            as a whole disability which is less than total. Of this 
 
            amount, as set forth above, the employer is liable for a 
 
            total of 67.5 weeks caused by the first and second injuries. 
 
            The Fund was liable for the remaining 182.5 weeks disability 
 
            from the date of the last payment of benefits by Oscar Mayer 
 
            Foods Corp.
 
            
 
                 IV.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of  reasonable medical expenses incurred 
 
            for treatment of a work injury.  In the case at bar, the 
 
            treating physician concurred with claimant's request for a 
 
            second treatment alternative opinion from Dr. Collins after 
 
            he indicated that he had no other care to offer.  Defendant 
 
            Oscar Mayer Foods Corp. cannot deny second opinion and 
 
            consultations agreed to and recommended by treating 
 
            physicians without supportive medical opinion or other 
 
            evidence to suggest that the second opinion or consultation 
 
            is unnecessary or unreasonable.
 
            
 
                 Claimant seeks payment for the evaluation by Dr. 
 
            Fischer subsequent to the evaluation by Dr. Lee.  Dr. Lee's 
 
            evaluation was performed pursuant to a request for 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            independent evaluation under Iowa Code section 85.39.  Dr. 
 
            Fischer made no treatment recommendations. This was 
 
            appropriate for the doctor as his involvement was solely to 
 
            rate claimant's impairment for purposes of litigation, not 
 
            to provide treatment alternatives.  Claimant is not entitled 
 
            to payment for the evaluation by Dr. Fischer under Iowa Code 
 
            section 85.27.
 
            
 
                                        ORDER
 
            
 
                 1.  Defendant Oscar Mayer Foods Corp. shall pay to 
 
            claimant thirty (30) weeks of permanent partial disability 
 
            benefits at the rate of two hundred twenty-two and 90/100 
 
            dollars ($222.90) per week from September 18, 1990.  
 
            Defendant Oscar Mayer Foods Corp. shall also pay to claimant 
 
            thirty-seven point five (37.5) weeks of permanent partial 
 
            disability benefits at the rate of two hundred twenty-two 
 
            and 90/100 dollars ($222.90) per week from April 14, 1991.
 
            
 
                 2.  Defendant Second Injury Fund shall pay to claimant 
 
            one hundred eighty-two point five (182.5) weeks of permanent 
 
            partial disability benefits at  the rate of two hundred 
 
            twenty-two and 90/100 ($222.90) per week beginning 
 
            immediately after completion of payment of benefits by 
 
            defendant Oscar Mayer Foods Corp., as ordered in paragraph 1 
 
            above.
 
            
 
                 3.  Defendant Oscar Mayer Foods Corp. shall provide a 
 
            second opinion from Dr. Eugene Collins as to treatment 
 
            options and alternatives, if any, at the expense of Oscar 
 
            Mayer Foods Corp.  This order does not authorize or order 
 
            any treatment recommendations which are made by Dr. Collins.  
 
            If any dispute arises as a result of any recommendations of 
 
            Dr. Collins, the parties may utilize the summary procedures 
 
            for alternate care that are now available in Iowa Code 
 
            section 85.27 and rule 343 IAC 4.48.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 5.  Defendant Oscar Mayer Foods Corp. shall receive 
 
            credit for previous payments of benefits under a 
 
            non-occupational group insurance plan, if applicable and 
 
            appropriate under Iowa Code section 85.38(2), less any tax 
 
            deductions from those payments.   
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30 but 
 
            Fund interest shall not begin until the date of this 
 
            decision. 
 
            
 
                 7.  Defendants Oscar Mayer Foods Corp. and the Second 
 
            Injury Fund shall equally pay the costs of this action 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this _____ day of October, 1992
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Burton H Fagan
 
            Attorney at Law
 
            2535 Tech Dr  Ste 206
 
            Bettendorf IA 52722
 
            
 
            Ms Vicki L Seeck
 
            Ms Deborah Dubik
 
            Mr Richard M McMahon
 
            Attorneys at Law
 
            600 Union Arcade Bldg
 
            111 E third St
 
            Davenport IA 52801-1550
 
            
 
            Mr James F Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
                      
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         JUAN CHAVEZ,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                            File Nos. 966627/993942
 
         SIPCO, INC. d/b/a MONFORT,      
 
                                                  A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         HOME INSURANCE,       
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed May 
 
         28, 1993 is affirmed and is adopted as the final agency action in 
 
         this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of January, 1994.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                              BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Max Schott
 
         Attorney at Law
 
         6959 University Ave.
 
         Des Moines, Iowa 50311
 
         
 
         Juan Chavez
 
         900 SE 10th St.
 
         Des Moines, Iowa 50309
 
         CERTIFIED & REGULAR MAIL
 
         
 
         Mr. W. Timothy Wegman
 
         Attorney at Law
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
 
            
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed January 6, 1994
 
                                             Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JUAN CHAVEZ,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                             File Nos. 966627/993942
 
            SIPCO, INC. d/b/a MONFORT,      
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            HOME INSURANCE,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Nonprecedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUAN CHAVEZ,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 966627
 
                                          :                 993942
 
            SIPCO, INC. dba MONFORT,      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Juan 
 
            Chavez, claimant, against SIPCO, Inc. d/b/a Monfort, 
 
            employer, hereinafter referred to as Monfort, and Home 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of alleged 
 
            injuries on September 27, 1990 and October 1, 1990.  On 
 
            April 14, 1993, a hearing was held on claimant's petition 
 
            and the matter was considered fully submitted at the close 
 
            of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have stip
 
            ulated to the following matters:
 
            
 
                 1.  On September 27, 1990 and October 1, 1990, claimant 
 
            received injuries arising out of and in the course of 
 
            employment with Monfort.
 
            
 
                 2.  Claimant is not seeking additional temporary total 
 
            or healing period benefits in this proceeding
 
            
 
                 3.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $236.00; he was married; and he was 
 
            entitled to three exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $163.81 according to the Industrial 
 
            Commissioner's published rate booklet for this injury. 
 
            
 
                 4.  Medical benefits are no longer in dispute.
 
            
 
                                      ISSUE
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is extent of claimant's entitlement 
 
            to permanent disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is unnecessary to this decision 
 
            as defendants did not appear to place claimant's credibility 
 
            at issue during the hearing.
 
            
 
                 Claimant, a 22-year-old Mexican national, worked for 
 
            Monfort from July 24, 1990 until January 1993 when he was 
 
            terminated for the stated reason that he failed to have per
 
            mission to work in this country.  Claimant moved to this 
 
            country to work as a laborer at one of Monfort's meat pack
 
            ing plants.  Claimant initially was assigned to cleaning up 
 
            fat from the floor but later he was given a job consisting 
 
            of cleaning ribs using a knife in his right hand.  This job 
 
            involved repetitive use of the right hand and arm.
 
            
 
                 The first injury in September 1990 involved a lacera
 
            tion of the right hand.  Claimant was treated and returned 
 
            to work.  The remaining scar is approximately one and a half 
 
            inches above his right wrist.  The second injury in October 
 
            1990 was a gradual or cumulative trauma to the right wrist 
 
            and arm from the repetitive movements of his hand and arm 
 
            during his meatpacking work.  Claimant suffered both carpal 
 
            tunnel and cubital tunnel syndromes in the right wrist and 
 
            elbow respectively at this time.  These are conditions in 
 
            which surrounding tendons and soft tissue swells, placing 
 
            pressure on nerves in the hand and arm.  This condition 
 
            results in chronic pain, swelling and numbness in the 
 
            fingers, hands and arms.  Claimant received surgeries in the 
 
            wrist and arm as a treatment modality in addition to 
 
            restricted work activity, medication and physical therapy.  
 
            The above findings are based upon the uncontroverted views 
 
            of the treating and evaluating physicians in this case.  
 
            Claimant also was diagnosed by one physician as suffering 
 
            from reflex sympathetic dystrophy.  However, the record is 
 
            controverted on this diagnosis and no findings could be made 
 
            as to this particular condition.  There was no dispute in 
 
            the medical evidence that claimant's carpal and cubital tun
 
            nel problems were work related.
 
            
 
                 The work injury of September 27, 1990, the laceration, 
 
            is not found to have caused permanent impairment.  
 
            Claimant's only complaint from the laceration is the remain
 
            ing scar which is not disabling.  No physician has issued an 
 
            impairment rating for the laceration.  Claimant's continuing 
 
            pain complaints have all been related to residual problems 
 
            from the overuse syndromes.
 
            
 
                 The work injury of October 1, 1990 is found to be a 
 
            cause of an eight percent permanent impairment to the right 
 
            arm.  Both of the physicians who have rated claimant's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            impairment in this case attribute his continued hand, arm, 
 
            shoulder and neck pain to residual effects of the carpal and 
 
            cubital tunnel syndrome.  Their only disagreement has been 
 
            the extent of impairment.  A. B. Grunberg, M.D., the ortho
 
            pedic surgeon who performed that cubital tunnel release, has 
 
            given claimant an eight percent impairment rating to the 
 
            arm.  A one time evaluator, Sinesio Misol, M.D., rated 
 
            claimant as suffering from a 12 percent impairment to the 
 
            arm.  Neither physician mentioned whether or not they used a 
 
            published guide to assist them in their ratings.  Both 
 
            appear equally qualified orthopedic surgeons.  The only dif
 
            ference is that Dr. Grundberg has more clinical involvement 
 
            with claimant.  Given his greater familiarity with 
 
            claimant's condition, Dr. Grunberg's rating was given more 
 
            weight in making the above finding.
 
            
 
                 It could not be found that claimant suffers from an 
 
            injury to the body as a whole from either work injury 
 
            herein.  No physician extends the injury to the body as a 
 
            whole.  The only evidence of injury beyond the arm is that 
 
            claimant still experiences pain in the shoulder and neck.  
 
            However, both Dr. Grundberg and Dr. Misol attribute this 
 
            pain to residual or referred pain from the wrist and elbow 
 
            syndrome problems.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The extent of claimant's entitlement to permanent dis
 
            ability benefits is determined next.  A permanent partial 
 
            disability is either scheduled or unscheduled.  A scheduled 
 
            disability is evaluated by the functional method.  The 
 
            industrial method is used to evaluate an unscheduled dis
 
            ability.  Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 
 
            N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 
 
            116 (Iowa 1983); Simbro v. Delong's Sportswear 332 N.W.2d 
 
            886, 997 (Iowa 1983).  When the result of an injury is loss 
 
            to a scheduled member, the compensation payable is limited 
 
            to that set forth in the appropriate subdivision of Code 
 
            section 85.34(2).  Barton v. Nevada Poultry Company, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).  "Loss of use" of a member 
 
            is equivalent to "loss" of the member.  Moses v. National 
 
            Union C.M. Co., 184 N.W. 746 (1922).  Pursuant to Code sec
 
            tion 85.34(2)(u), the industrial commissioner may equitably 
 
            prorate compensation payable in those cases where the loss 
 
            is something less than that provided for in the schedule.  
 
            Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered an eight percent permanent loss of use of his arm.  
 
            Based on such a finding, claimant is entitled to 20 weeks of 
 
            permanent partial disability benefits under Iowa Code sec
 
            tion 85.34(2)(m) which is eight percent of 250 weeks, the 
 
            maximum allowable number of weeks of disability for an 
 
            injury to the arm in that subsection.
 
            
 
                 According to the hearing report, claimant has already 
 
            been paid his entitlement of 20 weeks of permanent weekly 
 
            benefits.
 
            
 
                                      ORDER
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 1.  Claimant's petition is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Timothy W. Wegman
 
            Attorney at Law
 
            405 6th Avenue  STE 700
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed May 28, 1993
 
                                                 LARRY P. WALSHIRE
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JUAN CHAVEZ,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                  File Nos. 966627
 
                                                           993942
 
            SIPCO, INC. dba MONFORT, 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TOM TAYLOR,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 966646
 
            SIPCO, INC., d/b/a MONFORT    
 
             BEEF     
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY c/o    
 
             GALLAGHER BASSETT SERVICES,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration.  The only issue to 
 
            be determined is the rate of compensation.  The evidence 
 
            considered is the stipulations made by counsel at the 
 
            commencement of the hearing and joint exhibit 1, and a wage 
 
            statement.  The issue in the case revolves around whether or 
 
            not the week ending October 5, 1990 should be counted in 
 
            computing the rate of compensation.  The parties stipulated 
 
            that the hearing be conducted as an expedited hearing in 
 
            accordance with rule 343 IAC 4.44.  The stipulation was 
 
            approved.  A tape recorded record of the hearing was made.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 It was stipulated that the claimant sustained injury 
 
            which arose out of and in the course of employment.  His 
 
            entitlement to weekly compensation and medical expenses had 
 
            been resolved by the parties.  The only issue is the weekly 
 
            rate of compensation.  If the week in dispute, when the 
 
            claimant worked 16 hours, is included in the 13 weeks used 
 
            in computing the gross average weekly earnings those gross 
 
            average weekly earnings are $434.40.  If that week is 
 
            excluded the gross average weekly earnings are $470.60.  It 
 
            was stipulated that at the time of injury the claimant was 
 
            single and entitled to two exemptions.  
 
            
 
                 Counsel stipulated that the claimant took a personal 
 
            leave of absence during the week in question in order to 
 
            obtain medical care for a condition unrelated to employment.  
 
            He only worked 16 hours that week.  The employer had more 
 
            than 40 hours of work available for the claimant during that 
 
            week.  As shown by joint exhibit 1, the claimant customarily 
 
            worked in excess of 40 hours per week when both straight 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            time and overtime hours are considered.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The agency precedent is well settled.  Work weeks which 
 
            are not representative of the customary work week are to be 
 
            excluded.  In particular, when an employee takes unpaid time 
 
            off work for personal reasons, the week which includes the 
 
            unpaid absence is not to be used when computing the rate of 
 
            compensation.
 
            
 
                 Alvin Davis v. Weitz Company, File No. 898933 Appeal 
 
            Decn., November 25, 1992, Schotanus v. The Command 
 
            Hydraulics Inc., I Iowa Industrial Commissioner Report 94 
 
            (1981), Lewis v. Aalf's Manufacturing Co., I Iowa Industrial 
 
            Commissioner Report 206 (1980), Lawyer & Higgs, Iowa 
 
            Workers' Compensation Law and Practice, 2nd Edition Section 
 
            12-4.  
 
            
 
                 It is therefore concluded that the fourth week, the 
 
            week during which the claimant worked only 16 hours, should 
 
            not be included in the 13 weeks which are used in 
 
            determining the rate of compensation in this case pursuant 
 
            to section 85.36(6).  In view of the stipulations made by 
 
            the parties it is therefore determined that the correct 
 
            gross weekly earnings in this case are $470.60.  With the 
 
            claimant being single and entitled to two exemptions his 
 
            rate of compensation using the appropriate benefit booklet 
 
            is $288.18 per week.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That the weekly benefits payable to Tom Taylor in this 
 
            proceeding be paid at the rate of two hundred eighty-eight 
 
            and 18/100 ($288.18) per week.  
 
            
 
                 That costs of this proceeding are assessed against 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports in 
 
            accordance with rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Channing Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, IA  50265
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, IA  50306-9130
 
            
 
            
 
 
            
 
 
 
                   
 
 
 
                                                 53001, 2909 
 
                                                 Filed April 2, 1993
 
                                                 Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TOM TAYLOR,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 966646
 
            SIPCO, INC., d/b/a MONFORT    
 
             BEEF     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY c/o    
 
             GALLAGHER BASSETT SERVICES,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            53001, 2909
 
            
 
                 Parties who had only a rate issue stipulated at 
 
            commencement of hearing to conduct the hearing as an 
 
            expedited proceeding.  A tape recorded record was made.  The 
 
            case was originally one which did not meet the criteria for 
 
            an expedited proceeding but the hearing was conducted under 
 
            the expedited rule with the consent of counsel.  The hearing 
 
            consisted of presenting stipulated facts and exhibits.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
       
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
               
 
       RALPH NURNBERG,  
 
               
 
          Claimant, 
 
                                                File Nos. 966671
 
       vs.                                               1088029
 
               
 
       FARMERS COOPERATIVE COMPANY,          A R B I T R A T I O N
 
               
 
          Employer,                             D E C I S I O N
 
               
 
       and          
 
               
 
       LEGION INSURANCE COMPANY,  
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
       _________________________________________________________________
 
                           STATEMENT OF THE CASE
 
            
 
            This is a consolidated proceeding in arbitration brought by 
 
       Ralph M. Nurnberg, claimant, against Farmers Cooperative Company, 
 
       employer, and Legion Insurance Company, insurance carrier, 
 
       defendants, for workers' compensation benefits as a result of 
 
       alleged injuries on November 1, 1990 and September 11, 1993.  On 
 
       April 26, 1995 a hearing was held on claimant's petition and the 
 
       matter was considered fully submitted at the close of this 
 
       hearing.
 
            
 
            The parties have submitted a hearing report of contested 
 
       issues and stipulations which was approved and accepted as a part 
 
       of the record of this case at the time of hearing.  The oral 
 
       testimony and written exhibits received during the hearing are 
 
       set forth in the hearing transcript.
 
            
 
            According to the hearing report, the parties have stipulated 
 
       to the following matters:
 
            
 
            1.  On the dates alleged, claimant received injuries arising 
 
       out of and in the course of employment with the Coop.
 
            
 
            2.  Healing period benefits are not in dispute.
 
            
 
            3.  The injury is a cause of permanent industrial disability 
 
       to the body as a whole.
 
            
 
            4.  Permanent partial disability benefits shall begin on 
 
       January 9, 1991 and September 20, 1994 respectively for each 
 
       injury.
 
            
 
            5.  At the time of the 1990 and 1993 injuries, claimant's 
 
       gross rates of weekly compensation were $550.00 and $546.29 
 
       respectively; he was married and entitled to four exemptions.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       Therefore, claimant's weekly rate of compensation is $346.42 and 
 
       $352.64 respectively according to the industrial commissioner's 
 
       published rate booklet for this injury.
 
            
 
            6.  Medical benefits are not in dispute.
 
       
 
                               ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
       in this proceeding:
 
            
 
             I.  The extent of claimant's entitlement to permanent 
 
       disability benefits.
 
            
 
            II.  The extent of defendants' entitlement to credit against 
 
       the disability award for payments of salary and non-occupational 
 
       disability plan benefits.
 
       
 
                          FINDINGS OF FACT
 
            
 
            Having heard the testimony and considered all of the 
 
       evidence, the deputy industrial commissioner finds as follows:
 
            
 
            A credibility finding is necessary to this decision as 
 
       defendants placed claimant's credibility at issue during cross- 
 
       examination as to the nature and extent of the injury and 
 
       disability.  From his demeanor while testifying, claimant is 
 
       found credible.
 
            
 
            Claimant, Ralph Nurnberg, worked for the Coop from 1979 
 
       until he quit in January 1995 to accept similar employment 
 
       elsewhere.  Ralph worked himself up over the years at the Coop 
 
       from a general laborer to an operations manager.  However, he was 
 
       demoted back to general labor work in 1990 shortly before the 
 
       first work injury herein.  According to his supervisor, claimant 
 
       was a good and valued employee.  The record is clear that he has 
 
       been and continues to be a hard worker.  Ralph's demotion in 1990 
 
       occurred when upper management became dissatisfied with Ralph's 
 
       managerial performance.  Ralph's job at the Coop consisted of 
 
       various tasks in operating a grain elevator.  Generally, such 
 
       work involves the operation of equipment and machinery to 
 
       receive, store, mix and transfer feed grains such as soy beans 
 
       and corn.  This work also involved some paper work and repair and 
 
       maintenance of the equipment.  At times, heavy work is required 
 
       to handle grain and equipment.  Also, climbing stairs and 
 
       ladders, as well as walking on high walkways, is usually 
 
       required.
 
            
 
            Both injuries involved a so-called "closed head" trauma.  
 
       The 1990 injury occurred when a metal handle on a hand operated 
 
       wench struck claimant in the head above the right eyebrow 
 
       requiring several stitches to repair the resulting laceration.  
 
       The 1993 injury occurred when he fell approximately ten feet onto 
 
       a concrete floor severely fracturing the nasal area on his face.  
 
       He also fractured his right wrist in this fall.  Claimant has 
 
       suffered similar organic brain injury syndrome symptoms after 
 
       each injury but the evidence is clear that the second injury 
 
       worsened his condition.
 
            
 
            The brain syndrome symptoms consist of dizziness/vertigo; 
 
       loss of concentration/attention; loss of comprehension; noise 
 
       sensitivity; reduced sense of smell and taste; some speech 
 
       difficulty; chronic headaches; and depression.  These symptoms 
 
       have been considered by treating physicians to be classic for 
 
       persons suffering closed head injuries.
 
            
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            Treatment after the first injury was fairly conservative 
 
       utilizing local physicians and psychotherapists.  This involved 
 
       primarily chemotherapy.  Claimant returned to his job two months 
 
       after the injury.  Ralph stated that his loss of memory and 
 
       dizziness improved substantially but failed to return to normal.  
 
       He stated that he was able to keep tract of grain in various bins 
 
       without resorting to use of written notes.
 
            
 
            Treatment after the second injury was similar to the 
 
       treatment offered after the first injury except that Ralph was 
 
       extensively evaluated and treated at the Kansas City 
 
       Rehabilitation Network, a facility specializing in head injuries.  
 
       Claimant did not return to work until July 1994 and then only 
 
       part-time.  By September, claimant was working full time and his 
 
       usual weekly hours until he left in January 1995.  His usual 
 
       weekly hours were in excess of 40 and many times in excess of 70.
 
            
 
            Claimant's primary physician for the two injuries has been 
 
       Charles Denhart, M.D., a physiatrist, specializing in head 
 
       injuries.  Upon referral from Dr. Denhart in June 1992, Ralph has 
 
       received several evaluations and treatment recommendations from 
 
       William McMordie, Ph.D., a clinical neuropsychologist.  According 
 
       to Dr. McMordie after the 1993 injury, claimant significantly 
 
       worsened in attention and concentration abilities thereby 
 
       reducing his overall intellectual abilities.  Also, his 
 
       depression worsened.  Although his memory improved during 
 
       recovery from the first injury, the second injury left his memory 
 
       function variable and Ralph now must use written notes to assist 
 
       him in keeping tract of grain storage at work.
 
            
 
            Both injuries are found to be a cause of a significant 
 
       permanent impairment to the body as a whole.  The second injury 
 
       also permanently impaired the use of claimant's left wrist due to 
 
       on-going symptoms and loss of grip strength.  Claimant is 
 
       currently restricted from climbing due to his vertigo.  It is 
 
       also recommended that claimant have employment that will allow 
 
       him to take his medications and continue relaxation and pain 
 
       management therapy once each day which consists of listening to 
 
       tapes.  Ralph's physicians rate his impairment from 14 percent to 
 
       35 percent of the body as a whole.  The majority consider the 
 
       second injury to have contributed more towards this impairment.
 
            
 
            Claimant's medical condition before the work injury was 
 
       excellent and he had no functional impairments or ascertainable 
 
       disabilities.  Claimant was able to fully perform all physical 
 
       and mental tasks assigned to him.  However, to date, his 
 
       condition has not prevented a return to the work or similar work 
 
       he was performing at the time of the first injury.  However, 
 
       after the second injury, the Coop lowered Ralph's pay by $.25 per 
 
       hour on grounds that, due to his restrictions, they expected less 
 
       work from him.  However, the record was clear that with the 
 
       exception of climbing, claimant eventually returned to full duty 
 
       with considerable overtime but his pay was not restored.
 
            
 
            Ralph quit the Coop in January 1995 to accept similar 
 
       employment in the state of Nebraska.  Although the Nebraska 
 
       facility is smaller, Ralph performs much of the same work and 
 
       this work also involves long hours.  Ralph is convinced that his 
 
       new job is working out for him as he just completed his 90 day 
 
       probation. He plans on moving his family to Nebraska very soon.  
 
       Although the Coop had been accommodating for his disability, 
 
       especially the restriction against climbing, he was convinced 
 
       that he had better opportunities for advancement in the Nebraska 
 
       job even though it paid $.50 per hour less than his job at the 
 
       Coop.  This is essentially what was told to him by his supervisor 
 
       at the Coop before he left based upon his experience with upper 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       management as an operations manager.  It is found that claimant's 
 
       change in jobs is not due to either work injury.
 
            
 
            Ralph's continued employment in elevator operations, despite 
 
       his disability, is somewhat of a surprise to his primary treating 
 
       neuropsychologist, Dr. McMordie.  The doctor described Ralph in 
 
       his deposition as one "hell of a liability" with reference to his 
 
       risk of future injury.  He explained that the second head injury 
 
       was not unusual for patients like claimant.  Persons with 
 
       neurological head trauma are four times more likely to suffer 
 
       additional neurological trauma as a result of brain symptoms.  
 
       Dr. McMordie states that he has his "fingers crossed" and states 
 
       that he does not feel claimant's scenario is over.
 
            
 
            Claimant is 47 years of age.  Claimant has a Bachelor of 
 
       Arts Degree in biology and completed 9-12 hours of post graduate 
 
       work in neuropsychology.  However, despite his excellent 
 
       education, claimant's past employment primarily consists of 
 
       manual labor.  He worked as a farmhand after college.  For a 
 
       period of time, he was self-employed in agricultural chemical 
 
       spraying; livestock truck driving; and in heating and air 
 
       conditioning.  His reduced intellectual capacity and memory 
 
       adversely affects his ability to perform jobs, especially 
 
       intellectual duty, according to Dr. McMordie.  This is largely 
 
       due to the impaired attention/concentration from chronic 
 
       headaches and depression. His depression and noise sensitivity 
 
       compels him to withdraw socially.
 
            
 
            However, his employment to date is only partly due to 
 
       accommodations made by the Coop and his current employer.  Ralph 
 
       is a very well motivated person.  He is a hard worker.  Largely 
 
       on his own initiative, he has adjusted to accommodate for his 
 
       current shortcomings.  He remains a devoted husband and father 
 
       and a valued member of society despite his serious injuries.  
 
       However, Ralph has suffered a significant disability from each 
 
       injury which should be compensated.
 
            
 
            From examination of all of the factors of industrial 
 
       disability, it is found that the work injury of November 1, 1990 
 
       was a cause of a 10 percent loss of earning capacity.  It is 
 
       further found that the work injury of September 11, 1993 resulted 
 
       in a more serious disability and was a cause of an additional 20 
 
       percent loss of earning capacity.
 
            
 
            With reference to the credit issue, it is found that during 
 
       his absences from work, claimant received either a continuation 
 
       of his salary or group disability plan payments in weekly amounts 
 
       in excess of the weekly rate of compensation.
 
       
 
                         CONCLUSIONS OF LAW
 
            
 
             I.  As the claimant has shown that the work injury was a 
 
       cause of permanent physical impairment or limitation upon 
 
       activity involving the body as a whole, the degree of permanent 
 
       disability must be measured pursuant to Iowa Code section 
 
       85.34(2)(u).  However, unlike scheduled member disabilities, the 
 
       degree of disability under this provision is not measured solely 
 
       by the extent of a functional impairment or loss of use of a body 
 
       member.  A disability to the body as a whole or an "industrial 
 
       disability" is a loss of earning capacity resulting from the work 
 
       injury.  Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 
 
       N.W. 899 (1935).  A physical impairment or restriction on work 
 
       activity may or may not result in such a loss of earning 
 
       capacity.  Examination of several factors determines the extent 
 
       to which a work injury and a resulting medical condition caused 
 
       an industrial disability.  These factors 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.  See Peterson v. Truck Haven Cafe, Inc., 
 
       Vol. I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App. 
 
       February 28, 1985).
 
            
 
            A showing that claimant had no loss of his job or actual 
 
       earnings does not preclude a finding of industrial disability.  
 
       See Michael v. Harrison County, Thirty-fourth Biennial Rep., Iowa 
 
       Industrial Comm'r 218, 220 (App. 1979); Bearce v. FMC Corp., 465 
 
       N.W.2d 531 (Iowa 1991) only held that continued employment with 
 
       no loss of earnings is significant evidence that should not be 
 
       overlooked in measuring loss of earning capacity.  Loss of 
 
       potential employment is also a factor to consider in assessing 
 
       industrial disability.  Collier v. Sioux City Comm. Sch. Dist., 
 
       File No. 953453 (App. February 25, 1994).
 
            
 
            In the case sub judice, it was found that claimant suffered 
 
       a 10 percent loss of his earning capacity as a result of the 
 
       first work injury and an additional 20 percent for the second.  
 
       Such a finding entitles claimant to 50 weeks of permanent partial 
 
       disability benefits for the first injury under Iowa Code section 
 
       85.34(2)(u) which is 10 percent of 500 weeks, the maximum 
 
       allowable number of weeks for an injury to the body as a whole in 
 
       that subsection.  Claimant is also entitled as a matter of law to 
 
       an additional 100 weeks of such benefits for the second injury.
 
            
 
            II.  Defendants seek a credit against the award herein for 
 
       salary and group disability payments in excess of the weekly rate 
 
       or compensation periods.
 
            
 
            The primary purpose of the workers' compensation statute is 
 
       to benefit workers and workers' dependents insofar as the statute 
 
       permits and is to be interpreted liberally with view toward that 
 
       objective.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 
 
       (1981).  Workers' compensation statutes are to be liberally 
 
       construed in favor of the injured worker.  Beier Glass Co. v. 
 
       Brundige, 329 N.W.2d 280, 283 (Iowa 1983).
 
            
 
            Iowa Code section 85.38(2) states in part as follows:
 
            
 
            In the event the disabled employee shall receive any 
 
            benefits...under any group plan covering 
 
            nonoccupational disabilities contributed to wholly or 
 
            partially by the employer...then such amounts so paid 
 
            ...shall be credited to or against any compensation 
 
            payments...made or to be made under this chapter...
 
            
 
            Obviously, the language of the statute does not specify 
 
       whether or not such a credit can be taken for salary amounts or 
 
       benefits paid under group plans before or after a disability 
 
       period covered by the workers' compensation laws.  
 
            
 
            The purpose of the Iowa Code section 85.38(2) credit 
 
       provision is to avoid double recovery by disabled employees who 
 
       receive both worker's compensation and group benefits.  State v. 
 
       Erbe, 519 N.W.2d 812 (Iowa 1994).  Given the purpose of the 
 
       credit, it appears that defendants should take a credit for 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
       amounts paid during any period of disability for which weekly 
 
       worker's compensation benefits are payable, whether or not they 
 
       are temporary total, healing period or permanent partial 
 
       disability benefits.
 
            
 
            First, defendants are clearly not entitled to take a credit 
 
       against future weekly benefit payments for salary payments in 
 
       excess of the workers' compensation rate.  Division of Industrial 
 
       Services Rule 343 IAC 8.4.  Anderson v. Woodward State Hospital - 
 
       School, and the State of Iowa, 2-1 Iowa Industrial Comm'r 
 
       Decisions 24 (App. December 1985).
 
            
 
            In the event weekly short or long-term disability plan 
 
       benefits are more than the weekly compensation rate, the 
 
       undersigned believes that defendants should not take a credit for 
 
       the excess against future liability for weekly compensation 
 
       benefits.  First, such payments can be construed as excess salary 
 
       and the credit prohibited by administrative rule 343 IAC 8.4 
 
       cited above.  In addition, worker's compensation benefits are 
 
       viewed as wage replacement.  Allowing such a credit would replace 
 
       the current compensation system in Iowa with a system that pays 
 
       more per week but for a shorter period of time.  This would be 
 
       inconsistent with the purpose of protecting the worker and his 
 
       family from the devastating effects of a loss of wages during the 
 
       entire period of recovery or during the statutory periods of 
 
       disability as set forth in Iowa Code section 85.34(2).  Baker v. 
 
       Humbolt Sausage Co., File No. 980571 (App. May 31, 1995).
 
            
 
            Furthermore, in the event weekly short or long-term 
 
       disability benefits are less than the weekly worker's 
 
       compensation rate, this deputy commissioner believes that 
 
       defendants should not take a credit against this deficiency for 
 
       any payment of short or long-term benefits made after the 
 
       expiration of a period of time for which workers' compensation 
 
       weekly benefits are payable.  After the expiration of the 
 
       worker's compensation disability period, there is no longer a 
 
       possibility of double recovery.  Long-term benefits paid after 
 
       completion of workers' compensation payments are for a different 
 
       disability.  Claimant would not receive payments from two sources 
 
       for the same period of disability.  Also, as stated previously, 
 
       worker's compensation is viewed as a statutory system of wage 
 
       replacement.  Allowing a credit against deficiency payments would 
 
       replace the current system with a system that pays less per week 
 
       but for a longer period of time.  This would also be inconsistent 
 
       with the purpose of protecting the worker and his family from the 
 
       devastating effects of a sudden loss of wages.  Id.
 
            
 
            The credit, as requested by defendants, for payments of 
 
       salary or disability benefit payments beyond the weekly rate of 
 
       compensation or worker's compensation benefits period is denied.
 
       
 
                                ORDER
 
            
 
            1.  Defendants shall pay to claimant fifty (50) weeks of 
 
       permanent partial disability benefits at a rate of three hundred 
 
       forty-six and 42/l00 dollars ($346.42) per week from January 9, 
 
       1991.
 
            
 
            2.  Defendants shall pay to claimant one hundred (100) weeks 
 
       of permanent partial disability benefits at a rate of three 
 
       hundred fifty-two and 64/l00 dollars ($352.64) per week from 
 
       September 20, 1994.
 
            
 
            3.  Defendants shall pay accrued weekly benefits in a lump 
 
       sum and shall receive credit against this award for all benefits 
 
       previously paid.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
            4.  Defendants shall receive credit for previous payments of 
 
       benefits or salary under a non-occupational group insurance plan, 
 
       if applicable and appropriate under Iowa Code section 85.38(2) 
 
       only to the extent of the weekly benefit and weekly benefit 
 
       period, less any tax deductions from those payments.
 
            
 
            5.  Defendants shall pay interest on weekly benefits awarded 
 
       herein as set forth in Iowa Code section 85.30. 
 
            
 
            6.  Defendants shall pay the costs of this action pursuant 
 
       to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
       filing fee paid in this matter.
 
            
 
            7.  Defendants shall file activity reports on the payment of 
 
       this award as requested by this agency pursuant to rule 343 IAC 
 
       3.1.
 
       
 
       
 
       
 
          Signed and filed this ____ day of June, 1995.
 
       
 
       
 
       
 
       
 
       
 
                                   ______________________________
 
                                   LARRY P. WALSHIRE
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Terry L. Monson
 
       Attorney at Law
 
       100 Court Ave  STE 600
 
       Des Moines  IA  50309
 
       
 
       Mr. William D. Scherle
 
       Attorney at Law
 
       8th Flr  Fleming Bldg
 
       218 Sixth Ave
 
       Des Moines  IA  50309
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            1700
 
                                            Filed June 29, 1995
 
                                            LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         ____________________________________________________________
 
               
 
         RALPH NURNBERG,     
 
               
 
          Claimant, 
 
                                              File Nos. 966671
 
         vs.                                           1088029
 
               
 
         FARMERS COOPERATIVE COMPANY,       A R B I T R A T I O N
 
               
 
          Employer,                            D E C I S I O N
 
               
 
         and        
 
               
 
         LEGION INSURANCE COMPANY,     
 
               
 
          Insurance Carrier,  
 
          Defendants.    
 
         ___________________________________________________________
 
         1700
 
         Credit against weekly benefits awarded was denied for salary 
 
         and group disability plan payments in excess of the weekly 
 
         rate or weekly benefit period.
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         KEVIN J. DONAHUE,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :       File Nos. 966727
 
                                       :                1000700
 
         TRAFFIX DEVICES INC.,         :
 
                                       :    A R B I T R A T I O N
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         THE ST. PAUL PROPERTY &       :
 
         LIABILITY INSURANCE,          :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                               STATEMENT OF THE CASE
 
         
 
              This is a consolidated proceeding in arbitration brought by 
 
         Kevin J. Donahue, claimant, against Traffix Devices, Inc., 
 
         employer, hereinafter referred to as Traffix, and St. Paul 
 
         Companies, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of alleged injuries on July 26, 
 
         1990 and October 14, 1991.  On August 9, 1994, a hearing was held 
 
         on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.
 
         
 
              According to the hearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  On both July 26, 1990 and October 14, 1991 claimant 
 
         received injuries arising out of and in the course of employment 
 
         with Traffix.
 
         
 
              2.  Claimant is not seeking additional temporary total or 
 
         healing period benefits in this proceeding.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is a scheduled member 
 
         disability to the left foot or leg.
 
         
 
              4.  Claimant has been paid permanent partial disability 
 
         benefits subsequent to the second injury herein in the amount of 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         15.4 weeks based upon an impairment rating of seven percent of 
 
         the leg.
 
         
 
              5.  At the time of the July 26, 1990 injury claimant's gross 
 
         rate of weekly compensation was $317; he was single; and he was 
 
         entitled to one exemption.  Therefore, claimant's weekly rate of 
 
         compensation is $194.02 according to the Industrial 
 
         Commissioner's published rate booklet for this injury.
 
         
 
              At the time of the October 14, 1991 injury claimant's gross 
 
         rate of weekly compensation was $280; he was single; and, he was 
 
         entitled to one exemption.  Therefore, claimant's weekly rate of 
 
         compensation is $173.28 according to the Industrial 
 
         Commissioner's published rate booklet for this injury.
 
         
 
              6.  Medical benefits were not at issue.
 
         
 
                                       ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to 
 
         permanent disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              A credibility finding is necessary to this decision as 
 
         defendants placed claimant's credibility at issue during cross- 
 
         examination as to the nature and extent of the disability.  From 
 
         his demeanor while testifying claimant is found credible.
 
         
 
              The injury in July 1990 was to claimant's left ankle caused 
 
         by a fall from a ladder.  Claimant underwent treatment for a soft 
 
         tissue injury to the ankle and torn ligaments.  After recovery, 
 
         claimant returned to his job without restrictions and his 
 
         treating orthopedic physician, Donald Berg, M.D., opined that 
 
         claimant suffered no permanent impairment from the injury.  Based 
 
         upon the uncontroverted views of Dr. Berg, the work injury of 
 
         July 1990 is not found to have caused any permanent impairment.
 
         
 
              The injury of October 1991 occurred after claimant jammed 
 
         his left foot between "bases" that he was loading onto a truck.  
 
         Witnesses stated that claimant had been kicking at the bases and 
 
         was advised at the time to stop this or he would injury his 
 
         ankle.  Claimant has again treated by Dr. Berg but when 
 
         conservative care failed to alleviate chronic instability of the 
 
         ankle, Dr. Berg performed a "Watson-Jones Procedure" surgical 
 
         procedure on the ankle.  After recovery from the surgery claimant 
 
         returned to work and was subsequently laid off in a general plant 
 
         wide economic layoff. Claimant now works for a parts dealer 
 
         selling and delivering auto parts.
 
         
 
              Claimant testified that he continues to have significant 
 
         problems with use of his leg despite the absence of any formal 
 
         physician imposed restrictions on claimant's physical activity.  
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         He walks with a slight limp.  The ankle hurts after prolonged 
 
         walking and standing.  He cannot run without extensive pain and 
 
         must sleep with the foot off the end of the bed.  Claimant stated 
 
         that his relatively light duty job at the parts store is 
 
         necessary due to his disability.
 
         
 
              Three physicians have rated claimant's impairment.  Dr. Berg 
 
         opined that claimant's loss of range of motion equates to a seven 
 
         percent permanent partial impairment to the leg.  Another 
 
         orthopedic surgeon and one-time evaluator opines that claimant 
 
         suffers from a 13 percent permanent partial impairment to the 
 
         leg.  A chiropractor, Raymond Hanks, Jr., D.C., opines that the 
 
         impairment is 16 percent of the ankle.  Official notice of the 
 
         AMA guides was taken upon request of both parties and such a 
 
         rating is equivalent to an 11 percent permanent partial 
 
         impairment to the leg.
 
         
 
              All of these various ratings have their good and bad 
 
         aspects. Dr. Berg certainly, as the treating physician for both 
 
         injuries over a span of three years, is more clinically familiar 
 
         with claimant's leg problems.  However, Dr. Berg does not 
 
         delineate the numerical findings used to arrive at the rating and 
 
         does not state whether or not he used any rating guide to arrive 
 
         at his opinion.  Keith W. Riggins, M.D., on the other hand, does 
 
         specify the numerical findings but again fails to specify use of 
 
         any rating guide.  Dr. Hanks, although not a medical doctor, does 
 
         specify how he arrived at the rating and that he used the most 
 
         recent edition of the AMA rating guides.  Additionally, it is 
 
         clear that the impairment extends beyond the foot due to the 
 
         surgical involvement of the tissues extending well above the 
 
         common foot structures.
 
         
 
              As all of the ratings have their advantages and 
 
         disadvantages, the only logical approach is to give weight to 
 
         all.  Therefore, it is found that the work injury of October 1991 
 
         is a cause of a 10.3 percent permanent partial impairment to the 
 
         leg.  This figure was arrived at by averaging all of the 
 
         impairment ratings.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              A permanent partial disability is either scheduled or 
 
         unscheduled.  A scheduled disability is evaluated by the 
 
         functional method.  The industrial method is used to evaluate an 
 
         unscheduled disability.  Martin v. Skelly Oil Co., 252 Iowa 128, 
 
         133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 
 
         N.W.2d 116 (Iowa 1983); Simbro v Delong's Sportswear 332 N.W.2d 
 
         886, 997 (Iowa 1983).  When the result of an injury is loss to a 
 
         scheduled member, the compensation payable is limited to that set 
 
         forth in the appropriate subdivision of Code section 85.34(2).  
 
         Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).  "Loss of use" of a member is equivalent to "loss" of the 
 
         member.  Moses v. National Union C.M. Co., 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u), the industrial commissioner 
 
         may equitably prorate compensation payable in those cases where 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         1969).
 
         
 
              In the case sub judice, it was found that claimant suffered 
 
         a 10.3 percent permanent loss of use of his leg.  Based on such a 
 
         finding, claimant is entitled to 22.7 weeks of permanent partial 
 
         disability benefits under Iowa Code section 85.34(2)(0) which is 
 
         10.3 percent of 220 weeks, the maximum allowable number of weeks 
 
         of disability for an injury to the leg in that subsection.  
 
         Claimant is entitled to an additional 7.3 weeks of weekly 
 
         disability benefits.
 
         
 
              Averaging of impairment ratings to arrive at an award is 
 
         utilized by this agency when the available ratings appear to have 
 
         relatively equal weight.  Lawyer & Higgs, Iowa Worker's 
 
         Compensation Law and Practice (2nd Ed.), Section 13-4, p. 125.
 
         
 
                                       ORDER
 
         
 
              1.  Defendants shall pay to claimant an additional 7.3 weeks 
 
         of permanent partial disability benefits at a rate of $173.28 per 
 
         week from August 10, 1992.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of August, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven S. Hoth
 
         Attorney at Law
 
         PO Box 982
 
         Burlington  IA  52601
 
         
 
         Mr. Greg A. Egbers
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd St
 
         Davenport  IA  52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed August 30, 1994
 
                                            LARRY P. WALSHIRE
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            KEVIN J. DONAHUE,   
 
                      
 
                 Claimant,
 
                     
 
            vs.                                File Nos. 966727
 
                                                      1000700
 
            TRAFFIX DEVICES INC.,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            THE ST. PAUL PROPERTY &  
 
            LIABILITY INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
                 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
MARY K. NELSON,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                             File Nos. 966893 & 1037224
 
MAURICES, INC.,    
 
                               A R B I T R A T I O N
 
     Employer, 
 
                                  D E C I S I O N
 
and       
 
          
 
LIBERTY MUTUAL INSURANCE CO. 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
                        STATEMENT OF THE CASE
 
 
 
This is a consolidated proceeding in arbitration brought by Mary K. 
 
Nelson, claimant, against Maurices, Inc., employer, hereinafter 
 
referred to as Maurices, and Liberty Mutual Insurance Co., insurance 
 
carrier, defendants, for workers' compensation benefits as a result of 
 
two alleged injuries on October 22, 1990 and February 25, 1992.   On 
 
March 1, 1995,  a hearing was held on claimant's petitions and the 
 
matter was considered fully submitted at the close of this hearing.
 
 
 
The parties have submitted a hearing report of contested issues and 
 
stipulations which was approved and accepted as a part of the record of 
 
this case at the time of hearing.  The oral testimony and written 
 
exhibits received during the hearing are set forth in the hearing 
 
transcript.    
 
 
 
According to the hearing report, the parties have stipulated  to the 
 
following matters:
 
 
 
1.  On October 22, 1990,  claimant received an injury arising out of 
 
and in the course of  employment with Maurices;
 
 
 
2. Claimant is seeking additional temporary total or healing period 
 
benefits from February 25, 1992 through May 30, 1992 and defendants 
 
agree that she  was not working at this time; 
 
 
 
3. If any of the injuries are found to have caused permanent 
 
disability, the type of disability is an industrial disability to the 
 
body as a whole;
 
 
 
4.  At the time of both injuries, claimant was married  and, entitled 
 
to five exemptions; and 
 
 
 
5.  It was stipulated that the providers of the requested medical 
 
expenses would testify as to their reasonableness and defendants are 
 
not offering contrary evidence.  
 
 
 

 
 
 
 
 
 
 
                                 ISSUES
 
 
 
The parties submitted the following issues for determination in this 
 
proceeding:
 
 
 
I.  Whether claimant received an injury on February 25, 1992, arising 
 
out of and in the course of  employment; 
 
 
 
II. The extent of claimant's entitlement to disability benefits; and
 
 
 
III. The extent of claimant's entitlement to medical benefits and 
 
alternate care.
 
 
 
                            FINDINGS OF FACT
 
 
 
Having heard the testimony and considered all of the evidence, the 
 
deputy industrial commissioner finds as follows:
 
 
 
A credibility finding is necessary to this decision as defendants 
 
placed Mary's credibility at issue during cross-examination as to the 
 
nature and extent of the injury and disability.   From her demeanor 
 
while testifying, Mary is found credible.
 
 
 
Mary worked for Maurices from October 1989 until February 1991 at which 
 
time she resigned.   Maurices is a retail clothing store chain.  
 
Initially Mary was hired as a part-time sales associate but after a 
 
year moved to full-time as a floor supervisor at the store in Ft. 
 
Dodge, Iowa.   In July 1992,  Mary transferred to the store in Mason 
 
City, Iowa and continued as a floor supervisor.  Although her primary 
 
duty was to supervise subordinates,  Mary's position required heavy 
 
lifting up to 50 pounds to help when needed in stocking, moving store 
 
items, erecting displays and assisting customers.  Claimant's testimony 
 
with reference to her duties was not challenged by defendants' 
 
witnesses at hearing.   In her resignation Mary listed two motivating 
 
factors compelling her to leave, (1) her medical problems stemming from 
 
a prior work injury; and, (2) dissatisfaction with upper management in 
 
failing to advance her and disagreement with her last performance 
 
appraisal.
 
 
 
The stipulated work injury of October 22, 1990, consisted of  a neck 
 
strain when a 60-pound box fell on Mary's head while attempting to 
 
remove it from an overhead shelf in a storeroom.   Upon an initial 
 
diagnosis of a pinched nerve, Mary was treated by a local physician 
 
with heat and medication for a very sore neck.  After a week or so, she 
 
began treating with a chiropractor and chiropractic manipulations 
 
occurred regularly for almost two years.   Mary was off work for a 
 
brief time after this injury and gradually returned to work, first 
 
part-time and then full-time in December 1990.
 
 
 
After transferring to Mason City in the summer of 1991,  Mary began to 
 
have more problems with her neck from increased physical activity while 
 
moving into a new store.  These recurrent symptoms were reported to 
 
upper management in September 1991.  Mary continued with chiropractic 
 
care to obtain relief but also continued to perform her job at 
 
Maurices. 
 
 
 
Mary claims to have injured herself a second time on February 25, 1991. 
 
 She states that the pain grew worse and she was compelled to leave 
 
work on a medical leave.  Interestingly, this occurred at the same time 
 
as a performance evaluation which in Mary's opinion was adverse to her. 
 
 
 
She received her next three chiropractic manipulations on March 11, 
 
1992, March 19, 1992 and April 6, 1992.  Upon referral by defendants, 
 
Mary was evaluated by a neurosurgeon, David Beck,  M.D., the day before 
 
her resignation.  Dr. Beck views her condition as a soft tissue neck 
 
injury.  In April 1992, Dr. Beck submitted a report to Job Service 
 
indicating that Mary was not released to return to work when he first 
 

 
 
 
 
 
 
 
 
 
saw her but does not state anything with reference to her ability to 
 
work prior to March 25, 1992.  No opinion was obtained from the 
 
chiropractor at the time as to claimant's ability to work when she 
 
first left on February 25, 1992.  It appears to the undersigned that 
 
the primary event causing her absence on February 25, 1992 was the 
 
upsetting performance evaluation.  All physicians relate her symptoms 
 
and treatment after March 25, 1992 to her first injury October 22, 
 
1990.  Therefore, it could not be found that claimant suffered a second 
 
injury.  Mary, however, has shown an absence from work beginning on 
 
March 25, 1992, attributable to the work injury of October 22, 1990.
 
 
 
Following the examination of Dr. Beck, Mary began physical therapy 
 
other than chiropractic care under the direction of Enrique Cohen, 
 
M.D., during the balance of 1992.   After that date, defendants refused 
 
to pay for further therapy.   In late May, 1992, Mary began a new job 
 
as swimming pool manager at her new residence in Dunlap, Iowa during 
 
the summers of 1992 and 1993.  Since May 1994 she has been working as a 
 
convenience store clerk working part-time while attending a local 
 
community college. 
 
 
 
Mary today complains of chronic neck pain which adversely affects her 
 
ability to stand, carry, reach or lift.  She has been evaluated by 
 
several medical doctors and chiropractors who most often describe 
 
Mary's condition as a chronic neck strain.  All opine that Mary has 
 
suffered to some degree a significant permanent partial impairment to 
 
the body as a whole as a result of the original injury of October 22, 
 
1990, due to limited range of motion and probable future flare-ups from 
 
activity.  The percentages of impairment range from 4-15 percent.  Mary 
 
today has no physician imposed formal work activity restrictions but in 
 
his deposition testimony, Raymond Koski, D.C., recommends that Mary not 
 
perform repetitious activities involving her neck, shoulder or arms 
 
outstretched.  He does not recommend lifting more than 10 pounds with 
 
arms extended and no more than occasional lifting up to 40 pounds.   
 
Dr. Koski's views are not controverted in the record.  
 
 
 
Therefore, it is found that Mary has suffered permanent partial 
 
impairment to the body as a whole from the October 22, 1990 injury 
 
which restricts her ability to perform certain physical tasks in 
 
employment.
 
 
 
Claimant's medical condition before the work injury was excellent and 
 
she had no functional impairments or ascertainable disabilities.  
 
Claimant was able to fully perform physical tasks involving heavy or 
 
repetitive lifting bending, twisting and prolonged standing.  
 
Claimant's only significant work before Maurices was in hair styling 
 
which Dr. Koski does not feel claimant should perform due to the work 
 
with extending arms.  Clearly, given her physical limitations, she is 
 
precluded in the future from a very large number of manual labor jobs 
 
which on whole pay far more than non-skilled light duty or sedentary 
 
jobs which do not pay much more than her current minimum wage job.
 
 
 
Mary is 39 years of age.  She obtained a GED in 1975.  She attended 
 
Manikato State for one semester before completing a vocational training 
 
course in cosmetology.  Mary attended one semester at DMACC in Boone, 
 
Iowa.   Mary currently is about to complete a liberal arts course of 
 
study at DMACC in Carroll, Iowa and most likely will receive her 
 
Associate of Arts degree this year.  Mary is intending to complete her 
 
education and obtain a Bachelor of Arts in social work.  She appears to 
 
be physically and financial able to complete these plans but it would 
 
be speculation at this time to find that she will obtain a four-year 
 
degree or that she would actually obtain a job in the field of social 
 
work at some point in time in the future.    However, obtaining the 
 
Associate degree alone will greatly improve her chances to find 
 
suitable employment.
 
 
 
From examination of all of the factors of industrial disability, it is 
 

 
 
 
 
 
 
 
 
 
found that the work injury of October 22, 1990 was a cause of a 25 
 
percent loss of earning capacity.  
 
 
 
Given Mary's uncontroverted  testimony at hearing, the medical expenses 
 
listed as unpaid in the hearing report, including the medical mileage 
 
expenses, are found causally related to the injury and necessary for 
 
treatment of the work injury.    One exhibit refers to prescription 
 
expenses which is disputed by defendants as many are for antibiotics.  
 
However, these expenses were not listed as unpaid requested expenses in 
 
the hearing report and that issue was not properly submitted to the 
 
undersigned.
 
 
 
Mary seeks alternate care with Dr. Koski.  She states that she has 
 
continuing problems with her stomach with medication and that his care 
 
would be helpful to her.  Defendants are concerned about costs of such 
 
care which is estimated by Dr. Koski to last indefinitely.  It is clear 
 
that claimant has had several years of chiropractic care with little 
 
improvement.  However, other forms of physical therapy were 
 
discontinued by defendants.  Therefore, alternate care with Dr. Koski 
 
is found to be currently necessary and reasonable until such time as 
 
defendants provide an alternate physical therapy recommended by a 
 
medical doctor.
 
 
 
Also, Mary asserts that her vertigo and tinnitus in her ears are 
 
related to the work injury.  Dr. Koski's deposition testimony causally 
 
relating this condition to the injury is unrebutted.  The causation 
 
views of an evaluating otolaryngologist are not clear in the record.  
 
It is therefore found that the work injury of October 22, 1990 is a 
 
cause of Mary's current vertigo and tinnitus condition and defendants 
 
are directed to designate a suitable physician to deal with these 
 
complaints.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
I.  Claimant has the burden of proving by a preponderance of the 
 
evidence that claimant received an injury arising out of and in the 
 
course of employment.  The words "out of" refer to the cause or source 
 
of the injury.  The words "in the course of" refer to the time and 
 
place and circumstances of the injury. see generally, Cedar Rapids, 
 
Comm. Sch.  Dist. v. Cady, 278 N.W. 2d 298 (Iowa 1979);  Crowe V. 
 
DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W. 2d 63 (1955).  An 
 
employer takes an employee subject to any active or dormant health 
 
impairments. A work connected injury which more than slightly 
 
aggravates the condition is considered to be a personal injury.  
 
Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W. 2d 591 (1961), and 
 
cases cited therein.
 
 
 
In the case sub judice,  claimant failed to show a second work injury.  
 
However, much of the time off work following the claimed injury was 
 
found causally connected to the stipulated work injury.
 
     
 
II.  The question of causal connection is essentially within the domain 
 
of expert medical opinion.  Bradshaw v. Iowa Methodist Hospital, 251 
 
Iowa 375, 101 N.W. 2d 167 (1960).   The opinion of experts need not be 
 
couched in definite, positive or unequivocal language and the expert 
 
opinion may be accepted or rejected, in whole or in part, by the trier 
 
of fact. Sondag v. Ferris Hardware, 220 N.W. 2d 903 (Iowa 1974). The 
 
weight to be given to such an opinion is for the finder of fact to 
 
determine from the completeness of the premise given the expert or 
 
other surrounding circumstances.  Bodish v. Fischer, Inc.,  257 Iowa 
 
516, 133 N.W. 2d 867 (1965).    
 
 
 
Furthermore, if the available expert testimony is insufficient alone to 
 
support a finding of causal connection, such testimony may be coupled 
 
with non-expert testimony to show causation and be sufficient to 
 
sustain an award.  Giere V. Aase Haugen Homes, Inc. 259 Iowa 1065, 146 
 

 
 
 
 
 
 
 
 
 
N. W. 2d 911, 915 (1966) Such evidence does not, however, compel an 
 
award as a matter of law.  Anderson v. Oscar Mayer & Co., 217 N.W. 2d 
 
531, 536 (1974)  To establish compensability, the injury need only be a 
 
significant factor, not be the only factor causing the claimed 
 
disability.  Blacksmith at 354.  In the case of a preexisting 
 
condition, an  employee is not entitled to recover for the results of a 
 
preexisting injury or disease but can recover for an aggravation 
 
thereof which resulted in the disability found to exist.  Olson v. 
 
Goodyear Service Stores, 255 Iowa 1112, 125 N.W. 2d 251 (1963).
 
 
 
As the claimant has shown that the work injury was a cause of permanent 
 
physical impairment or limitation upon activity involving the body as a 
 
whole,  the degree of  permanent disability must be measured pursuant 
 
to Iowa Code section 85.34(2)(u).  However, unlike scheduled member 
 
disabilities, the degree of disability under this provision is not 
 
measured solely by the extent of a functional impairment or loss of use 
 
of a body member.   A disability to the body as a whole or an 
 
"industrial disability" is a loss of earning capacity resulting from 
 
the work injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 
 
258 N.W. 899 (1935).  A physical impairment  or  restriction on work 
 
activity may or may not result in such a loss of earning capacity.  
 
 
 
Examination of several factors determines the extent to which a work 
 
injury and a resulting medical condition caused an industrial 
 
disability.  These factors 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.  See Peterson v. Truck Haven Cafe, Inc. Vol. 1, No. 3 
 
Iowa Industrial Commissioner Decisions 654,  658  (App. Feb. 28, 1985).
 
 
 
In the case sub judice,  it was found that claimant suffered a 20 
 
percent loss of her earning capacity as a result of the work injury.  
 
Such a finding entitles claimant to 100 weeks of permanent partial 
 
disability benefits as a matter of law under Iowa Code section 
 
85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable 
 
number of weeks for an injury to the body as a whole in that 
 
subsection. 
 
 
 
Claimant's entitlement to permanent partial disability also entitles 
 
her to weekly benefits for healing period under Iowa Code section 85.34 
 
from the date of injury until claimant returns to work; until claimant 
 
is medically capable of returning  to substantially similar work to the 
 
work she  was performing at the time of injury; or, until it is 
 
indicated that significant improvement from the injury is not 
 
anticipated, whichever occurs first.
 
 
 
After her first return to work, claimant was found to have a second 
 
period of healing period attributable to the original injury beginning 
 
on March 25, 1992 and lasting until her re-employment on May 30, 1992.  
 
 Additional healing period benefits will be awarded.    Healing period 
 
may terminate and then begin again.  Willis v. Lehigh Portland Cement 
 
Co., I-2 Iowa Industrial Comm'r Dec. 485 (1984);   Clemens v. Iowa 
 
Veterans Home, I-1 Iowa Industrial Comm'r Dec 35 (1984);  See 
 
generally, Lawyer & Higgs, Iowa Workers Compensation--Law and Practice, 
 
Section 13-3.   
 
 
 
III.  Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
payment of  reasonable medical expenses incurred for treatment of a 
 

 
 
 
 
 
 
 
work injury.  Claimant is entitled to an order of reimbursement if she 
 
has paid those expenses.  Otherwise, claimant is entitled only to an 
 
order directing the responsible defendants to make such payments 
 
directly to the provider.  See Krohn v. State, 420 N.W. 2d 463  (Iowa 
 
1988)   
 
 
 
In the case at bar, claimant carried her burden to show the 
 
compensability of the requested expenses and the need for alternate 
 
care.
 
 
 
The dispute as to rate of compensation involves the gross weekly rate.  
 
This deputy was given two choices in the hearing report. The higher 
 
figure is based upon the number of hours that should have been worked 
 
under the contract of employment.  The lower figure was the amount 
 
actually worked.  Rate is to be based upon the number of hours actually 
 
worked.  Iowa Code section 85.36.  Utilizing the lower figure in the 
 
hearing report for the October 1990 injury and stipulations on marital 
 
status and exemptions,  Mary's weekly rate of compensation for the 
 
award herein is $115.36 according to the Industrial Commissioner's 
 
published rate booklet for this date of injury.
 
 
 
                             ORDER
 
 
 
1.  Defendants shall pay to claimant one hundred (100) weeks of 
 
permanent partial disability benefits at a rate of one hundred fifteen 
 
and 36/100 dollars ($115.36) per week from May 31, 1992.
 
 
 
2.  Defendants shall pay to claimant additional healing period benefits 
 
from March 25, 1992 through May 30, 1992 at the rate of one hundred 
 
fifteen and 36/100 dollars ($115.36) per week.
 
 
 
3.  Defendants shall pay the medical expenses listed in the prehearing 
 
report.  In addition, defendants are ordered to provide the alternate 
 
care by Dr. Koski until such time as other physical therapy is provided 
 
upon the recommendation of a medical doctor.  Also, defendants shall 
 
designate a care physician for Mary's vertigo and tinnitus problems.
 
 
 
4.  Defendants shall pay accrued weekly benefits in a lump sum and 
 
shall receive credit against this award for all benefits previously 
 
paid.  
 
 
 
5.  Defendants shall pay interest on weekly benefits awarded herein as 
 
set forth in Iowa Code section 85.30. 
 
 
 
6.  Defendants shall pay the costs of this action pursuant to D.I.S. 
 
Rule 343 IAC 4.33, including reimbursement to claimant for any filing 
 
fee paid in this matter.
 
 
 
7.  Defendants shall file activity reports on the payment of this award 
 
as requested by this agency pursuant to D.I.S. Rule 343 IAC 3.1.
 
 
 
Signed and filed this ____ day of March, 1995.
 
                              ______________________________
 
                              LARRY P. WALSHIRE
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. Jerry L. Schnurr, III
 
Attorney at Law
 
409 Snell Bldg.
 
P.O. Box 952
 
Fort Dodge, IA  50501
 
 
 
Ms. Janece M. Valentine
 
Attorney at Law
 
801 Carver Bldg.
 
P.O. Box 1680
 
Fort Dodge, IA 50501
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                  5-1803
 
                                  Filed March 17, 1995
 
                                  Larry P. Walshire
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
MARY K. NELSON,    
 
          
 
     Claimant, 
 
          
 
vs.       
 
                             File Nos. 966893 & 1037224
 
MAURICES, INC.,    
 
                               A R B I T R A T I O N
 
     Employer, 
 
                                  D E C I S I O N
 
and       
 
          
 
LIBERTY MUTUAL INSURANCE CO. 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
5-1803 
 
Non-precedential, extent of disability case.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
MARY K. NELSON,      
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                  File Nos. 966893 & 1037224
 
MAURICES, INC.,      
 
                                         O R D E R 
 
     Employer,   
 
                                   N U N C   P R O   T U N C
 
and         
 
            
 
LIBERTY MUTUAL INSURANCE CO.,
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
Due to typographical error, the unnumbered fourth paragraph on page 4 
 
of the Arbitration Decision dated March 17, 1995 is amended to read as 
 
follows.
 
   from examination of all of the factors of industrial disability, it 
 
is found that the work injury of October 22, 1990 is a cause of a 20 
 
percent loss of earning capacity.
 
The balance of the decision is unchanged.
 
Signed and filed this ____ day of March, 1995.
 
                              ______________________________
 
                              LARRY P. WALSHIRE
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. Jerry L. Schnurr, III
 
Attorney at Law
 
409 Snell Bldg.
 
P.O. Box 952
 
Fort Dodge, IA  50501
 
 
 
Ms. Janece M. Valentine
 
Attorney at Law
 
801 Carver Bldg.
 
P.O. Box 1680
 
Fort Dodge, IA  50501