962663

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL CONRAD,

Claimant,

vs.
File No. 962663
ENVIRONMENTAL MANAGEMENT
SERVICES,
A P P E A L
Employer,
D E C I S I O N
and

AETNA INSURANCE,

Insurance Carrier,

and

SECOND INJURY FUND OF IOWA,

Defendants.
____________________________________________________________

The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.

ISSUES

The issues on appeal are: Whether the compensation rate
awarded was incorrectly calculated; whether there was
sufficient evidence that claimant suffered a back injury or
right leg impairment on October 22, 1990; whether the Second
Injury Fund should have been required to pay a portion of
any permanency award; and whether there was sufficient
evidence to award total and permanent disability.

FINDINGS OF FACT

The findings of fact contained in the proposed agency
decision filed May 14, 1993 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the language from the proposed agency decision that have
been intentionally deleted and do not form a part of this
final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of
the proposed agency decision.

Page 2

1990. This work history included several jobs involving
manual and heavy duty work such as digging ditches, laying
pipe, general labor work, using a jackhammer, pouring
concrete, carrying forms, tearing off roofing, carrying
shingles, general cleanup, constructing roads, laying road
forms, digging footings, using wheelbarrow to haul sand,
carrying rods, demolition work, knocking out walls, working
with carpenters, pick axing rock, installing television
cable, working in crawl spaces, and doing general cable
installation.

Claimant said that between 1976 and 1983, his various
jobs paid him between $13 and $16 per hour and he would be
lifting 15 to 150 pounds. Claimant said he had no problem
up to December 1983 lifting these weights except on one
occasion in 1975 while in the service he injured his right
knee and was off one day and this injury resolved itself.

Claimant testified that in October 1984, while working
for Cox Cable, he injured his right knee while carrying a
ladder to the telephone pole. He slipped and the ladder
fell across his knee. Claimant had right knee surgery on
April 19, 1985.

Claimant related that he had physical therapy with
William R. Irey, M.D., and that he stopped treatment in
1987. He indicated the knee wasn't bad or good and that it
was still aggravating him. He acknowledged that there was a
39 percent permanent impairment rating and he was released
to sedentary-type work. Claimant said his left knee was not
hurt but he did have some back strain that worked itself
out. This strain was caused when he fell and hit his
tailbone. There had been no rating to his back or left
knee.

After his release by Dr. Irey, claimant returned to Cox
Cable but indicated the situation was not good as the
employer knew claimant's status and claimant was working
inside and claimant wanted to work outside. He eventually
took the dispatcher job but still wanted to work outside and
there was controversy between him and the boss. Claimant
was fired in 1988 when he returned one hour late from
vacation. Claimant said he liked the company and did
everything they wanted and bent over backwards to help them.

Claimant said at that time, because of his right leg,
he was restricted from climbing stairs, bending or squatting
but had no problems standing and he was to do no heavy work.

Claimant then testified that around May 1988, when he
was off work after being fired, he went into a several month
conditioning program working out lifting weights and getting
himself back into a good healthy condition. He indicated
being off work and being injured was also affecting his
marriage. Claimant indicated that he was back in shape 95
percent and felt good and took a job with FDL as a meat
cutter, trimming loins, hanging hogs and cleaning up. On
February 12, 1989, after having worked for two weeks for
FDL, he was lifting 50 pound boxes and 50 to 75 pound hogs.
Claimant said that on February 12, 1989, he was walking

Page 3

across a floor that had been sprayed when he slipped and
hurt his right knee again. Claimant then had surgery again
on his right knee in March of 1989.

Claimant said he was released for work again to light
duty, sedentary, no stairs, etc., similar to the
restrictions he had previously. Claimant then returned to
work at FDL and his jobs were outside his restrictions. He
tried to perform them but couldn't so he went to the doctor
who then put him on a lighter duty job in the locker room.
He said this was a non-posted job and the union told him it
wasn't a contract position but a man-made job so claimant
was asked to resign and did in 1990.

Claimant said when he left FDL he was not having any
trouble with his left leg except he had atrophy from
favoring his right leg and he was limping on his right leg.
He said he had no basic back trouble when he left FDL.

Claimant indicated his wife was on him again because he
couldn't get a job and tried to get help from vocational
rehabilitation and begged people for a job. He said he
again did voluntary exercises to get into shape and took a
one week's course on asbestos removal.

In April or May of 1990, claimant went to work as an
asbestos remover which involved hauling bags out weighing
about 75 pounds after there had been some demolition done.
This job paid $6 per hour. He then went to Washington,
D.C., and worked on an asbestos removal job which paid $16
an hour and $32 overtime. This involved removing tile from
the floor and carrying containers weighing 50 to 75 pounds.
He indicated he got along pretty good without any real pain.
He said the contract ended so that was the end of the job.

Claimant then began working for defendant employer at
$11 per hour. He said he was told by his foreman that he
would be working 12 hours per day six days per week.
Claimant said on the day of his injury, which was his first
day of work, he was to take two other employees and go up
the scaffold to see what asbestos had to be removed.
Claimant indicted he had to climb up the ladder. It was
very dark and no lights. Claimant then started down the
scaffolding and while climbing down the little narrow
ladder, claimant's right leg fell through inside of the
ladder rung and the left leg went through the outside of the
ladder rung and claimant's legs were wrenched in the rung
and claimant hit the ladder as he went down. Claimant
estimated he fell approximately six feet. Claimant's knee
hit the bar of the scaffold. Claimant fell backwards and
grabbed the bar. He indicated he had a tool belt on.

Claimant said he went to a medical specialist the next
day and after that examination he indicted the doctor asked
him if he could have surgery that day. Claimant said he
wanted a second opinion and went to another doctor who
confirmed that claimant should have surgery. Claimant said
that after the fall he had tremendous headaches for quite
some time and felt like he had wrenched his lower back.

Page 4

Claimant said his injury occurred approximately four
hours after he started the job and that he was paid for a
full day of work, twelve hours, even though he didn't work
the rest of the day. Claimant said that he injured both
knees and his back on October 22, 1990, and told the
insurance carrier (Jt. Ex. 2, pp. 3 and 4). He indicated he
couldn't tell which leg was worse. Claimant acknowledged
that he did not tell Jay Ginther, M.D., anything regarding
his back for a period of time but after the first visit he
did tell him and he said the doctor told him he had a
possible lumbar strain and that he should sit in the tub.
He said his back gradually kept getting worse. Claimant
then was referred to joint exhibit 7, page 2, in which the
doctor indicated in October 1990 claimant had complaints of
bilateral knee pain and low back pain. Claimant emphasized
that before he fell on October 22,1990, he had not had any
back pain for at least a year prior and never saw a doctor
for back pain before and that he hadn't had any left leg
problems but just soreness due to favoring his right leg.

Claimant was asked concerning the notation of
defendants that he was a temporary part-time worker.
Claimant emphasized that he understood he was hired full
time and was never told that it was a temporary job.

Claimant indicated that defendant insurance carrier
hired a vocational rehabilitation person to get involved
with claimant's case but claimant indicated the consultant,
Christopher Yep, never assisted in looking for work or gave
any career guidance and had one conference and wrote one
report. Claimant said he met with Robert Bubbers, an
Illinois Vocational Rehabilitation consultant who issued a
report represented by joint exhibit 6. Claimant said he saw
Mr. Bubbers 25 to 30 times and was told by Mr. Bubbers that
there was nothing there for claimant to do. Claimant said
he made 40 or 50 phone calls and went to Job Service and to
JTPA looking for work or training since his October 1990
injury.

Claimant said he has seen a psychiatrist, Dr. William
Nissen, twice and has received some psychological
counseling. He indicted there are problems in his marriage
because he has had no income or job. Claimant said he has
applied for 20 or 30 jobs since the October injury and
before February 1992 and since February 1992 has sought
approximately 73 more jobs or interviews. Claimant said he
never got any interviews. Claimant said he presently uses
his upper body okay but not his lower body. He indicated he
holds on to a table at times when he is sitting and doesn't
sleep well. Claimant indicated that after his first injury
and his 39 percent impairment, he could still do things but
now he cannot move around well as he could trip over a cord
and his knees give out.

Claimant said he disagrees with Dr. Irey if Dr. Irey
indicates there is no difference as to what claimant can do
now between the 1986 versus the current situation. Claimant
emphasized he can do less now as to job opportunities.

On cross-examination, claimant was questioned as to the

Page 5

records showing he couldn't pass the functional capacity
validity portion of the test in January 1992 nor the
workers' compensation test validity portion in October 1989.
Claimant was further questioned as to the validity score
which the records shows was less than maximal effort.

Claimant acknowledged he is receiving social security
benefits which were recently granted. He also acknowledged
that he received a Cox Cable settlement for a workers'
compensation injury and an FDL Foods workers' compensation
settlement.

Claimant said he is taking classes now and said he
began searching for work after his release by Dr. Irey in
1992 and has made 100 job contacts. He indicated he had
made only four or five contacts before November 1992.

Dr. Irey, an orthopedic surgeon, testified through his
deposition on April 6, 1993, represented by joint exhibit
14. The doctor testified that his first contact with
claimant was October 31, 1984, and had his record from
another doctor from October 23, 1984. This doctor visit
with claimant was in respect to claimant having injured his
right knee on October 23, 1984, and had injured or was
having problem with that knee in the navy approximately ten
years earlier. The doctor explained his diagnosis and
eventually recommended claimant have an arthroscopic exam on
his knee. That exam was done on February 7, 1985, and the
doctor eventually did surgery on claimant's right knee. The
doctor cannot tell how much of claimant's knee problems were
due to the October 1984 injury and how much to earlier
injuries. The doctor described his continuing treatment of
claimant and released him to light duty on April 16, 1985.
He indicated claimant was progressing less than average in
his ability to use his leg. The doctor then referred the
claimant to a Dr. Whitmore for a second opinion and claimant
eventually had a cast put on the knee and eventual physical
therapy but this did not seem to help so claimant was
referred to the University of Iowa for another opinion.
Further physical therapy was recommended by the University
of Iowa in addition to knee manipulation under a general
anesthetic. Claimant rejected the general manipulation of
the knee as he earlier had rejected a cortisone treatment to
the knee.

After Dr. Irey saw claimant again on November 19, 1985,
after the claimant's University of Iowa visit, the doctor
offered claimant a cortisone injection again which claimant
declined and physical therapy was recommended to continue.

In January of 1986, it was recommended that claimant
have an arthroscopic examination and remove the scar tissue
which is considered an alternative way of performing a knee
manipulation and claimant refused. Claimant became
increasingly emotionally depressed around the end of January
1986 and was having difficulty making decisions and was
expressing anxiety about his work future and the future for
his knee (Jt. Ex. 14, pp. 15 and 16). Dr. Irey eventually
referred claimant to a psychiatrist.

Page 6

When the doctor saw claimant again on April 23, 1986,
claimant had very little flexion at that time, only about 30
degrees. The doctor further explained what he observed in
his examination.

When the doctor saw claimant in May of 1986, claimant
also started to have symptoms in his left knee similar to
those in his right and he wasn't sure what would have caused
it but presumed that they may be coming from his abnormal
gait on his right leg and walking in an unusual way on his
left as well but that was only his guess (Jt. Ex. 14, p.
19).

On July 22, 1986, the doctor did an impairment rating
on claimant's right leg under the AMA Guides to the
Evaluation of Permanent Impairment and opined claimant had a
39 percent impairment of that extremity.

The doctor said claimant saw him on April 16, 1987 due
to claimant reinjuring his right knee on April 1, 1987 (Jt.
Ex. 14, p. 21). When claimant returned for his next visit
on April 30, 1987, he was complaining of left lower back
pain radiating down into his left leg and his right knee had
given away on him on one or two occasions so he was having
pain in both legs and his lower back at that point. At that
time, the doctor could not determine any cause of claimant's
back problems. Claimant was prescribed a knee brace in May
of 1987 and a later visit in May he asked to see a
psychiatrist, a Dr. Nissen, again. At the end of May 1987,
claimant was taken off work and on June 23, 1987, claimant's
condition had not changed at that time or had it changed on
July 21, 1987, from the way it had been before the April 1,
1987 injury (Jt. Ex. 14, p. 25).

The doctor then said that on August 13, 1987, he
received a phone message from the claimant's wife who
indicated they didn't want any information given to the
compensation carrier or the company without their
permission. On August 12, 1987, the doctor did receive a
call from Cox Cable requesting to know if claimant was there
on August 10, 1987. Claimant wasn't there on that date but
there was a visit on August 13, 1987. The doctor said that
there was no need for claimant to miss work for weeks at a
time when his knee flares up.

Dr. Irey did not see claimant anymore after the
September 1, 1987 visit until August 18, 1992. The
examination on that date showed claimant had surgery on both
knees, swelling, tenderness on the front portion of both
knees, the ligaments of the knees were stable, and claimant
had a crunching sound or crepitus with flexion and extension
of both knees. He examined claimant's back and claimant had
about half of what one could normally do on back extension
or straightening and also bending to the side (Jt. Ex. 14,
p. 29). The doctor opined that he thought claimant's right
knee pain was due to the same problem he had back in 1986
and 1987 and did not know for sure the exact cause of
claimant's back pain nor did he have an opinion as to how
claimant's left knee came to be in the condition it was (Jt.

Page 7

Ex. 14, pp. 29 and 30).

On October 9, 1992, the doctor was recommending
claimant should have a job change and that he should assign
permanent restrictions and that a physical therapist should
review a home program of back and leg exercises.

The doctor said there was no way he could tell what
changes there might have been in claimant's knees and back
after his October 1990 injury and his condition October 9,
1992 (Jt. Ex. 14, p. 33).

Dr. Irey then did an evaluation of claimant on his next
visit on November 27, 1992, and based on claimant's
limitation of motion, he opined that claimant had a 37
percent impairment of the right knee and a 30 percent of the
left knee and a 16 percent permanent impairment of
claimant's back (Jt. Ex. 14, pp. 34-36). The doctor further
stated that in terms of what the current evaluation is, he
was not able to determine when the particular current
impairments came to be. In other words, he did not know at
that time when claimant's knee became 30 percent impaired or
as a result of what injury or injuries became 30 percent
impaired. The doctor agreed that at the time he did the 39
percent impairment of claimant's knee from his April 19,
1985 injury, he had not done a rating on claimant's left
knee. He, likewise, cannot tell when the 16 percent
impairment of the whole person regarding claimant's back
actually became impaired. The doctor therefore emphasized
that there was no way to distinguish what happened after
October 1990 and how much of it was already there before
with regard to the claimant's left knee and the back.
Regarding the right knee, the doctor said the impairment
rating at that time in November 1992 was no worse than it
was when he had done the impairment some years earlier (Jt.
Ex. 14, pp. 34-37).

The doctor was asked whether claimant had a permanent
impairment based on the tenderness in claimant's low back on
April 30, 1987, and the doctor indicated that it is his
strong suspicion and based on his limited notes that
claimant would not have had any measurable permanent partial
physical impairment at that time and, in fact, he had not
placed any impairment rating on claimant's back in 1987 or
anytime before that.

The doctor testified that when he examined claimant's
left leg on August 1, 1986, he did not think claimant would
ever require surgery for his left leg nor would claimant
have qualified for permanent impairment evaluation with
respect to his left leg and that any permanent impairment
rating based on the limited information he had would be
zero. The doctor said claimant's left knee situation
changed substantially from 1986 and 1987 to 1992 and that
claimant's motion is limited to 65 degree flexion (Jt. Ex.
14, p. 42-43). The doctor then testified that in comparing
the left leg with the restrictions claimant had in 1986 and
1987 and now in 1992, he did not think there was any
significant change in his work restrictions.

Page 8

The doctor was then asked again about claimant's right
knee and the chondromalacia which the doctor indicated is a
degeneration of the cartilage in the knee. The doctor
indicated it could be caused by a congenital process or an
injury or a cumulative process, but the doctor indicated
that most usually it is caused by a congenital process or
injury. The doctor did not know the cause claimant's
chondromalacia to his right knee. The doctor said that as
to claimant's right knee, it is possible that he was having
trouble with chondromalacia in his left knee but he
indicated he did not think he would go that far to say that
he had it. He also acknowledged that in August of 1986,
claimant was having some problems with his left leg as well
as his right and that he was starting to have symptoms in
his left knee similar to those he had in his right. The
doctor did not know what was causing claimant's left leg
problems.

The doctor was asked what he meant when he indicated in
his notes of June 23, 1987, in which he indicated Michael
remained somewhat difficult to evaluate. The doctor
indicated that by that he meant claimant's complaints of
pain were in excess of the objective findings that were
there and claimant was very difficult to evaluate and to
know where he really was in his treatment and recovery (Jt.
14, pp. 59-60).

In summary, at the end of Dr. Irey's testimony, he
indicated that he could not tell what of claimant's current
condition is attributable to the state he was already in or
had back in 1987, what was due to his February 1989 injury,
and what was due to his October 22, 1990 injury, and what
was due to some other cause altogether. He also emphasized
that there was no significant difference in the kind of work
claimant was able to do now compared to what he was able to
do in 1987 and that he would never have recommended that
claimant accept a job that would require him to go up and
down ladders based on the doctor's examination in 1987 (Jt.
Ex. 14, pp. 67-68).

Joint exhibit 1, pages 1 through 27, is the records
from Jay P. Ginther, M.D. The notes reflect that on
February 7, 1989, claimant slipped on some grease at work
while carrying some hot dogs and claimant had resulting
problems with his right knee. Claimant had surgery in March
of 1989. The doctor's notes show the care and service he
rendered plus the therapy and exercises prescribed and the
status of claimant's condition during the several visits.
On November 7, 1989, the doctor's notes refer to a full
capacity evaluation center report being sent back to him and
the doctor referred to certain limitations that claimant
should operate under.

Page 9

chondroplasty in 1989 on his right knee and that he
recovered enough that he was able to get back to work and
had not seen him for almost a year because claimant has been
able to do those things he wished to do (Jt. Ex. 1, p. 5).
Claimant was seeing Dr. Ginther for a second opinion and it
was Dr. Ginther who had performed claimant's arthroscopic
chondroplasty in March of 1989 on the right knee.

The doctor's November 9, 1990 notes reflect that
claimant is having left knee problems as well in relating
this to the October 22, 1990 incident at defendant employer
in which claimant slipped on the ladder.

Claimant was scheduled for a right knee arthroscopy for
January 10, 1991, but several things occurred which
prevented him from having the surgery. In the meantime,
claimant's left knee was beginning to bother him more than
the right. The doctor's note reflects on page 13 of Exhibit
1 that claimant's right knee fully recovered from the
ligamentous strain that he had initially and has good
strength and free of crepitation. The left knee continues
to give claimant trouble. It was therefore decided that
there should be surgery on the left knee. Around April 22,
1991, claimant had surgery on his left knee (Jt. Ex. 1, p.
22). Claimant was still getting treatment and trying to be
rehabilitated and as of March 4, 1992, claimant was
continuing to have problems with his knees and there was
crepitation on the left but was not very prominent on the
right.

On June 3, 1992, Dr. Ginther wrote a report that
indicated claimant had reached maximum medical improvement
and indicated the AMA Guides to the Evaluation of Permanent
Impairment suggest that an impairment between 5 and 10
percent for each leg would be appropriate. He indicated
claimant was continuing in physical therapy. He said the
only option left was to continue to have claimant in
physical therapy on the very remote chance that he will
eventually be able to go back to his old occupation (Jt. Ex.
1, p. 25).

On the same date, he wrote a letter to claimant's
attorney indicating it was very difficult to assign a
permanent impairment as to claimant's back other than
claimant's complaint of pain. The doctor said he has been
unable to document any objective difficulty with claimant's
back. He also said it was difficult to establish a causal
connection between an injury of a year and a half ago and
his current back situation. The doctor indicated the same
difficulty concerning left knee and indicated there is very
little objective evidence to support the place of pain that
the patient continues to have. He said he didn't find the
chondromalacia. He indicated the swelling and crepitation
have largely disappeared but the pain persists. The doctor
said the same situation pertains to the right knee and that
the objective findings of swelling and crepitation have
largely resolved. He indicated a permanent restriction
should be placed on claimant from stooping, climbing,

Page 10

squatting and repetitive heavy lifting.

The doctor further went on concerning claimant's
employability and said that claimant has expressed an
interest in having a rehabilitation counselor find something
for him and to train him but that in today's job market
there is probably not much employment for someone who does
not have any internal ambition to find an area of training
or education and pursuing a job. He also indicated that it
will prove difficult to assign specific numbers to
claimant's functional impairment unless he gets a testing
done which comes out with better performance on the validity
criteria.

On June 19, 1992, the doctor wrote the defendant
insurance company indicating that he felt the possibility
was remote that claimant could eventually return to his old
occupation but he understood they were going to attempt to
do the same and, if not, there should be a formal work
capacity evaluation report from physical therapy and set
things up for retraining of claimant in a field of work that
falls within that work capacity.

*****

Pages 13 and 14 of joint exhibit 3 reflect that on
November 4, 1985, claimant, at 28 years of age, was at the
University Hospital for evaluation of a right knee pain and
stiffness and that claimant had a long history of knee pain
which was exasperated one year ago when claimant was working
and slipped and fell causing hyperextension of his right
knee.

Joint exhibit 4 is the records from the Samaritan
Hospital encompassing 50 pages. Page 2 of this exhibit
reflects in the history and physical examination that
claimant injured both knees in October of 1990 and that the
right knee's strain appeared to be more of a problem but
that claimant is having the same problem in both knees as to
pain, catching, giving away and locking. Joint exhibit 4,
page 21, is a report of the April 22, 1991 arthroscopy of
claimant's left knee.

Joint exhibit 5, page 3, is a new hire information
record from claimant's personnel file which indicted
claimant started on October 22, 1990 as a temporary
full-time being paid $11 per hour. Page 20 of this exhibit
is a time sheet which reflects the one day that claimant
worked. From the evidence, it appears that claimant did not
actually work physically more than four hours and it
confirms the fact that, as claimant testified, he was paid
as if he worked the full day. This exhibit shows claimant
worked 12 hours and got paid for 12 hours.

Page 11

defendants that claimant was working 12 hours a day. The
personnel records of the claimant, as indicated earlier,
shows that he was paid for the only day he worked for 12
hours which would indicate that if claimant worked 40 hours
a week, he would be working a little over three days a week
and claimant testified he was hired to work six days a week.
It would seem logical regarding the project that claimant
was working on as reflected on page 21 of the exhibit that
he would be removing the asbestos for more than
approximately three days a week.

Joint exhibit 6 is the records of Robert Bubbers, a
rehabilitation counselor. On April 1, 1992, he indicated
that based on claimant's mobility, pain tolerance and
emotional stress, he didn't feel that claimant has the
capability of being gainfully employed at this time. On
March 22, 1993, Mr. Bubbers again indicated that the
claimant does not have the capability to handle competitive
employment at this time and that nothing has changed his
mind since he wrote the prior letter. Mr. Bubbers noted on
page 1 of said exhibit that there was at least 25 contacts
with the claimant from January 9, 1991 through March 22,
1993.

Joint exhibit 7 is a report from Robert J. Chesser,
M.D., who evaluated claimant who complained of bilateral
knee pain and low back pain. This October 9, 1992 report
reflects Dr. Chesser's opinion that there is a 29 percent
impairment due to loss of range and an additional 10 percent
for chondromalacia, thereby, resulting in the 36 percent
permanent impairment to the right knee (Jt. Ex. 7, p. 3).
The doctor opines a 10 percent impairment due to claimant's
chondromalacia in the left knee and 28 percent due to loss
in range of motion resulting in a total of 35 percent
impairment to claimant's lower extremity. The doctor felt
the injury of October 1990 would have aggravated a
preexisting condition relating back to the 1984 injury to
the right knee. As to the left knee, the doctor said it was
difficult to say whether this actually was caused by the
fall on the scaffolding as he did have some knee pain prior
to this even though it was noted to be rather mild compared
to the present status. The doctor said that if there was a
preexisting situation, he felt the fall would have
significantly contributed to claimant developing increased
knee pain and an increase in the chondromalacia
necessitating the arthroscopic procedure. The doctor
further opined that based on claimant's condition as of the
time of the report, claimant would need a job which would
allow him to sit for 45 to 60 minutes and alternate
positions as needed so that he could stand for short
periods. He would not be able to do any climbing, squatting
or kneeling. The doctor felt there would be little to offer
claimant in regard to viable employment.

Page 12

consultant did not get claimant a job nor does it look like
he explored options for claimant to return to work as far as
anything being successful or any evidence of exactly what
those particular job options are from the reality
standpoint. Mr. Yep did indicate that claimant, having been
in the construction trade most of his life, does not have a
lot of transferable skills and may need to look at a
position that is either entry level or one that will offer
some form of on-the-job training. The report does reflect
that the claimant wants to return to work.

Joint exhibit 13 is the records of Anthony D'Angelo,
D.O., who treated claimant in the latter part of 1986 and
around April 2, 1987, for his right knee complaints. In his
records, he indicates on April 2, 1987, that claimant would
continue to have difficulty with his right knee but that
claimant can remain working and was to undergo physical
therapy to restore motion in his knee.

The November 27, 1992 notes of Dr. Irey, which is page
18 of deposition exhibit 1 of joint exhibit 14, opines that
claimant has a 30 percent impairment for his right knee
based on loss of motion and a 10 percent impairment based on
arthritis and a 30 percent impairment of his left knee based
on loss of motion and a 16 percent impairment to claimant's
back based on a 50 percent loss of motion. Because of three
respective impairments to three different parts of
claimant's body, the doctor took the right knee which
converted to 15 percent impairment of the whole person and a
12 percent impairment of a whole person on converting the
left knee and a 16 percent body as a whole impairment as to
claimant's back and on the combined charts arrived at a 38
percent permanent impairment of the whole person and arrived
at the final physical impairment of claimant at 38 percent.
Dr. Chesser, on joint exhibit 7, page 4, using the combined
charts arrived at a 30 percent whole person impairment
placing a 14 percent right knee, 14 percent left knee and a
5 percent low back as the individual impairments before
using the combined charts. It would appear that Dr. Irey
had a much more and detailed contact with the claimant over
a longer period of time as he had testified that he first
became acquainted with claimant on October 31, 1984 (Jt. Ex.
14, p. 5).

Joint exhibit 15 is the Industrial Fitness Center's
notes and on page 9 it reflects that on October 20, 1992,
they planned to have claimant discontinue physical therapy
at that time. It would seem from this report that claimant
was in a healing period trying to improve his overall
condition and trying to reach a maximum healing condition.

Page 13

indicating that the tests may not necessarily be considered
valid. It further indicates that this test data may not be
considered generally representative of this individual's
potential maximal functional ability.

There is no dispute that on October 22, 1990, claimant
had climbed a ladder ready to analyze the situation at a
customer of defendant employer concerning the removal of
asbestos. Claimant, upon coming down from his inspection,
slipped on the ladder and his legs went into different
directions straddling the rung of the ladder and claimant
alleges injury.

Claimant has had considerable history of injuries and
problems particularly involving his right knee and has had
knee surgery on April 19, 1985 and February of 1989. When
claimant fell on October 22, the first doctor he had gone to
indicated claimant should have right knee surgery right
away. Claimant desired a second opinion and it appears the
second opinion agreed but claimant never did have that
surgery.

Claimant had incurred a 39 percent permanent impairment
rating after his April 19, 1985 surgery which resulted from
his 1984 injury.

Claimant has had problems with his left knee but the
greater weight of evidence indicates that claimant's left
knee problems really became substantially exacerbated and
ultimately resulted in knee surgery on April 21, 1991,
because of the October 22, 1990 injury.

The Second Injury Fund takes the position that
claimant's right and left knee alleged injuries occurred
simultaneously and therefore since it is a simultaneous
injury, they would not be involved in any award resulting
from the same. That would not necessarily be true in light
of the fact that claimant had a prior right knee injury and
there could be a situation which would still involve the
Second Injury Fund.
***** [Defendants assert on appeal that claimant's current
back condition is not caused by his work injury to his lower
extremities, but rather by his altered gait from his leg
injuries. Clearly, where a work injury to a leg results in
an altered gait, which in turn causes an impairment to the
back, the back condition is a sequelae of the work injury
and compensable. See Fridlington v. 3M, Arbitration
Decision, November 15, 1991; VanWey v. H.J. Heinz, Appeal
Decision, July 1992.
Prior to his work injury, claimant was able to work. After
his work injury, he is unable to return to his job. He has
made over 100 applications for substitute employment without
success. Claimant is clearly permanently and totally
disabled.]

It is found that the greater weight of evidence
indicates that claimant's back condition and resulting
impairment was a result of the October 22, 1990 work injury.

Defendant employer contends that claimant had

Page 14

preexisting problems and that those problems are what have
resulted only in claimant's current medical conditions and
impairments and any disability.

The greater weight of medical testimony and evidence
and the record herein indicates that claimant did, in fact,
incur an injury to his back on October 22, 1990, and that on
that date claimant also incurred an injury to his right knee
that substantially and materially aggravated a preexisting
condition in his right knee that has resulted in claimant
incurring a substantial impairment.

Dr. Irey opined claimant had 37 percent impairment of
his right lower extremity as a result of his right knee
injury. He opined claimant had a 30 percent impairment to
his left knee. The doctor further opined claimant had a 15
percent impairment to his body as a whole as a result of his
back injury. He opined claimant had a permanent partial
impairment to his body as a whole in total considering all
of the alleged injuries of 38 percent (Jt. Ex. 14, dep. 1,
p. 18).

Dr. Chesser, on page 3 of joint exhibit 7, opines
claimant had a 36 percent impairment to his right knee, a 35
percent to the left and 5 percent to the back. His combined
body as a whole impairments using the combined charts
resulted in a 30 percent body as a whole impairment. The
respective doctors did use the combined charts properly and
under the circumstances in this case all three parts of the
body were affected and that using the combined charts was
proper by the respective doctors.

Dr. Chesser was rendering his report of October 9,
1992, it appears, on a one-time evaluation of claimant. Dr.
Irey has had a long-standing acquaintance with the claimant
as indicated in his deposition on page 5 of joint exhibit
14. He has had contact with the claimant since October 31,
1984, and has seen claimant through various injuries.

There is no medical testimony that actually apportions
out any prior impairments that preexisted as relating to
claimant's current impairments. Claimant did have a 39
percent rating pursuant to an October 1984 injury in which
he had surgery in 1985. Claimant was still having problems
in 1989 with his knees, but the fact is he was working and
able to work and was hired to do this job and apparently was
able to climb ladders and perform the strenuous work that it
appears this job would entail. There was never any rating
as to claimant's left knee and it appears he strengthened
and overcame some of his difficulties with his right knee.

Claimant in his testimony seems to have been motivated
in that he tried on different occasions to get himself back
into condition notwithstanding his injuries and it appears
his effort did enable him to seek employment and work beyond
any restrictions. Defendants are obviously disturbed in
that claimant did not even work a day before he got injured.
It appears he wasn't working at other jobs very long when he
incurred an injury. *****

Page 15

The parties had agreed that claimant was off work
beginning October 23, 1990 through October 28, 1992, and
apparently this stipulation was additionally influenced by
Dr. Irey's October 26, 1992 letter in which he indicated
claimant had reached maximum medical improvement. This is
an unnumbered exhibit on Dr. Irey's deposition, joint
exhibit 14. Defendants had actually paid 105.429 weeks of
healing period benefits but, of course, payment is not an
admission of liability. They also agree that if there were
any permanent disability benefits they would begin October
29, 1992.

It is found that there is causal connection as to
claimant's weeks he was off and the healing period involved
herein and that claimant is entitled to the 105.429 weeks of
healing period benefits, and claimant did incur an injury
that arose out of and in the course of his employment when
on October 22, 1990, he slipped and fell down a ladder and
his legs got entrapped in the rung of the ladder.

It is further found that claimant has incurred
substantial loss of earning capacity and that claimant has
substantial body as a whole impairment and restrictions that
would, as a result of claimant's October 22, 1990 injury,
result in claimant being relegated to sedentary type of work
with limitations as to the extent of sitting and standing.
There have been two rehabilitation-type consultants involved
and neither has been able to find claimant a job and
indicates claimant's lack of a possibility of getting
employment. This thought is also echoed as to the medical
testimony on claimant's ability to do or inability to do
certain things because of his restrictions and medical
condition. Although the claimant had preexisting injuries,
claimant was doing his job even though he had been at work
only a few hours and that it is obvious he is now unable to
do the job that he was performing and hired to perform on
October 22, 1990, but at this time obviously unable to
perform any other job that he had done in the past.

After considering claimant's age, prior and post-injury
medical and work history, transferable skills, intelligence,
education, location of his injuries, severity, and healing
period, motivation, functional impairments, restrictions and
any other element that is considered to determine one's
industrial disability, it is found that claimant is
permanently and totally disabled as a result of the October
22, 1990 injury and that said injury substantially and
materially aggravated, lighted up and heightened claimant's
preexisting conditions to his scheduled members and any back
injury or condition.

There has been no apportioning out of any prior
disability other than claimant did in 1985 have 39 percent
impairment to his right knee. In light of the finding of
claimant being totally and permanently disabled, there would
be no apportionment out of that disability to a scheduled
member. Also, there is no evidence of what impairment
claimant had as of October 22, 1990, resulting from his
October 1984 knee injury.

Page 16

It is found that as to the Second Injury Fund, the
Second Injury Fund is not liable in this matter for the
reason that the injury of October 22, 1990 in and of itself
caused claimant's permanent total disability. There is
insufficient evidence to show that if there had not been the
first injury in 1984, claimant would not have been totally
and permanently disabled as a result of claimant's October
22, 1990 injury.

The parties are disputing the rate at which benefits
should be paid if any are awarded. Claimant contends that
he was making $11 per hour for a six day week which would
amount to 72 hours a week and result in gross weekly income
of $792, which would lead to a weekly rate of $481.68.
Defendants contend that claimant was making $11 an hour on
eight hours a day five days a week which would result in a
gross weekly wage of $440 and a rate of $284.46. There is
no dispute in the hourly rate and there is no dispute that
claimant was paid 12 hours of work at the $11 rate on the
date of his injury and that this date of his injury was the
only day claimant worked and he only worked four hours that
day even though he was paid for 12 hours. There is no other
evidence of claimant's income. We have only claimant's
testimony. Defendants do not have any contrary evidence
other than there is joint exhibit 16 which indicates that
which defendants filled out on April 8, 1993, the Thursday
before the Monday hearing of this case in which they
indicate gross weekly wages of $440.
The issue of claimant's rate of compensation is asserted on
appeal. Defendant and the Second Injury Fund of Iowa urges
that claimant did not give proper notice of this issue.
Claimant did not specifically list rate as an issue in his
petition. It was not listed as an issue on the prehearing
conference report.
Claimant argues that defendant employer and the Fund were
aware that his position was that his rate was based on a
12-hour per day, six day per week basis. Claimant testified
that he was injured his first day on the job, but he was
paid for 12 hours that day. He also testified that he was
told by both his foreman and by co-workers that the crew
normally worked six, twelve-hour days.
In addition to the failure to list rate as an issue prior to
the day of the hearing, defendant employer and Fund point
out that claimant was paid voluntary benefits based on a
40-hour week, for a considerable period of time and claimant
did not object. They urge that witnesses would have been
offered to rebut claimant's testimony if they had notice of
the issue.
This agency follows an unfair prejudice standard in regard
to proper notice of issues to be tried at hearing. That is,
where a party fails to comply with the rules requiring
proper notice to an opponent of the issues in dispute and to
be litigated at the hearing, the party seeking inclusion of
an issue must show either that other parties were apprised
of the issue by notice from the party seeking admission,
from pleadings, from discovery, or otherwise in sufficient

Page 17

time to timely complete all case preparation necessary as
regards that issue.
In the case at hand, it does not appear that claimant gave
either defendants or the Fund sufficient notice that the
rate of compensation would be an issue at the hearing.
Claimant's statement given to an investigator approximately
one month after the injury wherein he stated he believed his
rate to be based on a 72-hour week is not sufficient notice
to defendants that the rate of compensation would need to be
litigated at the hearing. This is especially true where
claimant accepted voluntary benefits based on a 40-hour
week. Although claimant was not required to decline the
benefits for this reason, his acceptance of them without
pointing out a perceived error is additional evidence that
claimant failed to identify this as an issue until the day
of the hearing.
Claimant's rate of compensation will be based on a gross
weekly earnings of $440 per week, yielding a rate of $284.46
*****

CONCLUSIONS OF LAW

The conclusions of law contained in the proposed agency
decision filed May 14, 1993 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the language from the proposed agency decision that have
been intentionally deleted and do not form a part of this
final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of
the proposed agency decision.

Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury on October
12, 1990, which arose out of and in the course of
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).

The claimant has the burden of proving by a
preponderance of the evidence that the injury of October 12,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).

Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant

Page 18

factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).

While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).

The Iowa Supreme Court cites, apparently with approval,
the C.J.S. statement that the aggravation should be material
if it is to be compensable. Yeager v. Firestone Tire &
Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S.
Workmen's Compensation sec. 555(17)a.

Our supreme court has stated many times that a claimant
may recover for a work connected aggravation of a
preexisting condition. Almquist v. Shenandoah Nurseries,
218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v.
Woodward State Hosp. Sch.,

Page 19

266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co.,
158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133
N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112
N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa
613, 106 N.W.2d 591 (1960).

An employer takes an employee subject to any active or
dormant health impairments, and a work connected injury
which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler, 252 Iowa 613,
620, 106 N.W.2d 591, and cases cited.

Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251. Barton v.
Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).

A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.

Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.

There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore

Page 20

becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).

Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that signifi injury was the resulting cause of claimant's permanent total
disability to any extent that would cause the Second Injury
Fund to be liable under the facts of this case.

Claimant was hired to be paid a weekly gross wage of
[$440], ***** thereby, making his weekly rate [$284.46]
***** based on claimant working and having been paid $11 per
hour for a 12 hour work day, six days per week.
WHEREFORE, the decision of the deputy is affirmed and
modified.

ORDER

THEREFORE, it is ordered:

Page 21

That defendants shall pay claimant compensation for
permanent total disability at the rate of two hundred
eighty-four and 46/100 dollars ($284.46) per week for the
period of claimant's disability commencing on October 23,
1990, the day after claimant's injury as claimant was paid
for the full day of the date of injury.

That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The record shows that
defendants previously paid one hundred five point four two
nine (105.429) weeks at two hundred eighty-four and 46/100
dollars ($284.46).

That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.

That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.

That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
That defendants shall pay the costs of the appeal, including
the preparation of the hearing transcript.
Signed and filed this ____ day of February, 1994.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Page 22

Copies To:

Mr. James M. Hood
Attorney at Law
302 Union Arcade Bldg.
Davenport, Iowa 52801

Ms. Carole J. Anderson
Attorney at Law
600 Davenport Bank Bldg.
Davenport, Iowa 52801

Mr. James F. Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319

5-1100; 5-1108; 5-1804;
5-3002; 5-3200
Filed February 28, 1994
Byron K. Orton

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL CONRAD,

Claimant,

vs.
File No. 962663
ENVIRONMENTAL MANAGEMENT
SERVICES,
A P P E A L
Employer,
D E C I S I O N
and

AETNA INSURANCE,

Insurance Carrier,

and

SECOND INJURY FUND OF IOWA,

Defendants.
____________________________________________________________

5-1100; 5-1108; 5-1804
Found claimant permanently and totally disabled as a result
of an October 22, 1990 injury found to have arose out of and
in the course of claimant's employment and found to have
caused claimant's total disability.

5-3002
Rate determined to be the rate ($284.46) the defendants had
advocated.

5-3200
Found Second Injury Fund not liable to claimant for any
benefits.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MICHAEL CONRAD, :
:
Claimant, :
:
vs. :
: File No. 962663
ENVIRONMENTAL MANAGEMENT :
SERVICES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA INSURANCE, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This case came on for hearing on April 12, 1993, at
Dubuque, Iowa. This is a proceeding in arbitration wherein
claimant seeks compensation for permanent disability
benefits as a result of an alleged injury occurring on
October 22, 1990. The record in the proceeding consists of
the testimony of claimant and joint exhibits 1 through 17.

ISSUES

The issues in the case are:

1. Whether claimant incurred an injury that arose out
of and in the course of his employment on October 22, 1990;

2. Whether there is a causal connection between
claimant's alleged work injury, his medical condition and
any disability;

3. The nature and extent of claimant's disability and
entitlement to disability benefits;

4. Whether claimant's alleged injury is only to a
scheduled member or a simultaneous bilateral scheduled
member injury or industrial disability;

5. Whether the Second Injury Fund is liable for any
benefits.

6. The rate at which benefits would be paid.

Page 2

FINDINGS OF FACT

The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:

Claimant is 35 years old and went through the ninth
grade. He then entered the navy in 1974 through 1976.
Claimant then related his work history from 1976 up to the
date he began working for defendant employer on October 22,
1990. This work history included several jobs involving
manual and heavy duty work such as digging ditches, laying
pipe, general labor work, using a jackhammer, pouring
concrete, carrying forms, tearing off roofing, carrying
shingles, general cleanup, constructing roads, laying road
forms, digging footings, using wheelbarrow to haul sand,
carrying rods, demolition work, knocking out walls, working
with carpenters, pick axing rock, installing television
cable, working in crawl spaces, and doing general cable
installation.

Claimant said at that time, because of his right leg,
he was restricted from climbing stairs, bending or squatting
but had no problems standing and he was to do no heavy work.

Claimant then testified that around May 1988, when he
was off work after being fired, he went into a several month

Page 3

conditioning program working out lifting weights and getting
himself back into a good healthy condition. He indicated
being off work and being injured was also affecting his
marriage. Claimant indicated that he was back in shape 95
percent and felt good and took a job with FDL as a meat
cutter, trimming loins, hanging hogs and cleaning up. On
February 12, 1989, after having worked for two weeks for
FDL, he was lifting 50 pound boxes and 50 to 75 pound hogs.
Claimant said that on February 12, 1989, he was walking
across a floor that had been sprayed when he slipped and
hurt his right knee again. Claimant then had surgery again
on his right knee in March of 1989.

Page 4

Page 5

now he cannot move around well as he could trip over a cord
and his knees give out.

On cross-examination, claimant was questioned as to the
records showing he couldn't pass the functional capacity
validity portion of the test in January 1992 nor the
workers' compensation test validity portion in October 1989.
Claimant was further questioned as to the validity score
which the records shows was less than maximal effort.

In January of 1986, it was recommended that claimant

Page 6

have an arthroscopic examination and remove the scar tissue
which is considered an alternative way of performing a knee
manipulation and claimant refused. Claimant became
increasingly emotionally depressed around the end of January
1986 and was having difficulty making decisions and was
expressing anxiety about his work future and the future for
his knee (Jt. Ex. 14, pp. 15 and 16). Dr. Irey eventually
referred claimant to a psychiatrist.

When the doctor saw claimant again on April 23, 1986,
claimant had very little flexion at that time, only about 30
degrees. The doctor further explained what he observed in
his examination.

Page 7

of both knees. He examined claimant's back and claimant had
about half of what one could normally do on back extension
or straightening and also bending to the side (Jt. Ex. 14,
p. 29). The doctor opined that he thought claimant's right
knee pain was due to the same problem he had back in 1986
and 1987 and did not know for sure the exact cause of
claimant's back pain nor did he have an opinion as to how
claimant's left knee came to be in the condition it was (Jt.
Ex. 14, pp. 29 and 30).

The doctor said there was no way he could tell what
changes there might have been in claimant's knees and back
after his October 1990 injury and his condition October 9,
1992 (Jt. Ex. 14, p. 33).

Page 8

zero. The doctor said claimant's left knee situation
changed substantially from 1986 and 1987 to 1992 and that
claimant's motion is limited to 65 degree flexion (Jt. Ex.
14, p. 42-43). The doctor then testified that in comparing
the left leg with the restrictions claimant had in 1986 and
1987 and now in 1992, he did not think there was any
significant change in his work restrictions.

Page 9

The note shows that on October 31, 1990, the claimant
was in to see the doctor for a new injury and indicated that
claimant had been his patient for an extended period of time
throughout virtually the entirety of 1989. The doctor's
notes reflect that claimant had had arthroscopic
chondroplasty in 1989 on his right knee and that he
recovered enough that he was able to get back to work and
had not seen him for almost a year because claimant has been
able to do those things he wished to do (Jt. Ex. 1, p. 5).
Claimant was seeing Dr. Ginther for a second opinion and it
was Dr. Ginther who had performed claimant's arthroscopic
chondroplasty in March of 1989 on the right knee.

Page 10

said the same situation pertains to the right knee and that
the objective findings of swelling and crepitation have
largely resolved. He indicated a permanent restriction
should be placed on claimant from stooping, climbing,
squatting and repetitive heavy lifting.

Joint exhibit 3 is an exhibit encompassing about 20
pages of which all but two are for all purposes worthless
and several of the pages are blank with nothing on them
except some lines and numbers which are meaningless.
Putting in blank pages and worthless documents is even more
serious than duplication and it is just a useless cost to
one's client, harm to the environment, a waste of the
undersigned's time, in addition to compounding the storage
problems. It is a violation of Iowa Code section 17A.14(1).

Page 11

worked. From the evidence, it appears that claimant did not
actually work physically more than four hours and it
confirms the fact that, as claimant testified, he was paid
as if he worked the full day. This exhibit shows claimant
worked 12 hours and got paid for 12 hours.

Page 22 of said exhibit is a copy of the work injury
report in which the employer set out that claimant normally
worked 40 hours a week. It appears the inference would be
that claimant worked five days a week eight hours a day for
the 40 hours. This would be inconsistent with claimant's
testimony which was not disputed by any witness of
defendants that claimant was working 12 hours a day. The
personnel records of the claimant, as indicated earlier,
shows that he was paid for the only day he worked for 12
hours which would indicate that if claimant worked 40 hours
a week, he would be working a little over three days a week
and claimant testified he was hired to work six days a week.
It would seem logical regarding the project that claimant
was working on as reflected on page 21 of the exhibit that
he would be removing the asbestos for more than
approximately three days a week.

Page 12

further opined that based on claimant's condition as of the
time of the report, claimant would need a job which would
allow him to sit for 45 to 60 minutes and alternate
positions as needed so that he could stand for short
periods. He would not be able to do any climbing, squatting
or kneeling. The doctor felt there would be little to offer
claimant in regard to viable employment.

Joint exhibit 11 is a vocational assessment by
Christopher Yep, M.S., C.R.C. On page 1, he sets his goal
as job goal identification based on current skills and job
availability followed by job placement. It is obvious this
consultant did not get claimant a job nor does it look like
he explored options for claimant to return to work as far as
anything being successful or any evidence of exactly what
those particular job options are from the reality
standpoint. Mr. Yep did indicate that claimant, having been
in the construction trade most of his life, does not have a
lot of transferable skills and may need to look at a
position that is either entry level or one that will offer
some form of on-the-job training. The report does reflect
that the claimant wants to return to work.

The November 27, 1992 notes of Dr. Irey, which is page
18 of deposition exhibit 1 of joint exhibit 14, opines that
claimant has a 30 percent impairment for his right knee
based on loss of motion and a 10 percent impairment based on
arthritis and a 30 percent impairment of his left knee based
on loss of motion and a 16 percent impairment to claimant's
back based on a 50 percent loss of motion. Because of three
respective impairments to three different parts of
claimant's body, the doctor took the right knee which
converted to 15 percent impairment of the whole person and a
12 percent impairment of a whole person on converting the
left knee and a 16 percent body as a whole impairment as to
claimant's back and on the combined charts arrived at a 38
percent permanent impairment of the whole person and arrived
at the final physical impairment of claimant at 38 percent.
Dr. Chesser, on joint exhibit 7, page 4, using the combined
charts arrived at a 30 percent whole person impairment
placing a 14 percent right knee, 14 percent left knee and a
5 percent low back as the individual impairments before
using the combined charts. It would appear to the
undersigned that Dr. Irey had a much more and detailed
contact with the claimant over a longer period of time as he
had testified that he first became acquainted with claimant
on October 31, 1984 (Jt. Ex. 14, p. 5).

Joint exhibit 15 is the Industrial Fitness Center's
notes and on page 9 it reflects that on October 20, 1992,

Page 13

they planned to have claimant discontinue physical therapy
at that time. It would seem from this report that claimant
was in a healing period trying to improve his overall
condition and trying to reach a maximum healing condition.

Joint exhibit 15 is a work capacity evaluation and on
October 25, 1989, on pages 31 and 32, there is indication in
the evaluation summary that whatever the cause, these
coefficients of variations suggest an inconsistent effort.
On page 36, which is part of the functional capacity
evaluation of January 6, 1992, there is a comment that
claimant scored high or equivocal 8 out of 18 tests
indicating that the tests may not necessarily be considered
valid. It further indicates that this test data may not be
considered generally representative of this individual's
potential maximal functional ability.

Claimant had incurred a 39 percent permanent impairment
rating after his April 19, 1985 surgery which resulted from
his 1984 injury.

Claimant has had problems with his left knee but the
undersigned finds that the greater weight of evidence
indicates that claimant's left knee problems really became
substantially exacerbated and ultimately resulted in knee
surgery on April 21, 1991, because of the October 22, 1990
injury.

The undersigned believes the Second Injury Fund issue
is moot under all the circumstances of this case in light of
the fact that we do now have an issue of a back injury. The
undersigned finds that the greater weight of evidence
indicates that claimant's back condition and resulting
impairment was a result of the October 22, 1990 work injury.

Page 14

Defendant employer contends that claimant had
preexisting problems and that those problems are what have
resulted only in claimant's current medical conditions and
impairments and any disability.

The undersigned finds the greater weight of medical
testimony and evidence and the record herein indicates that
claimant did, in fact, incur an injury to his back on
October 22, 1990, and that on that date claimant also
incurred an injury to his right knee that substantially and
materially aggravated a preexisting condition in his right
knee that has resulted in claimant incurring a substantial
impairment.

Dr. Chesser, on page 3 of joint exhibit 7, opines
claimant had a 36 percent impairment to his right knee, a 35
percent to the left and 5 percent to the back. His combined
body as a whole impairments using the combined charts
resulted in a 30 percent body as a whole impairment. The
undersigned believes the respective doctors did use the
combined charts properly and under the circumstances in this
case in which the undersigned has found that all three parts
of the body were affected and that using the combined charts
was proper by the respective doctors.

Page 15

that claimant did not even work a day before he got injured.
It appears he wasn't working at other jobs very long when he
incurred an injury. The undersigned feels this is a
coincidence. No one will convince the undersigned that
claimant intentionally attempted to become injured.

The undersigned finds there is causal connection as to
claimant's weeks he was off and the healing period involved
herein and that claimant is entitled to the 105.429 weeks of
healing period benefits and that the undersigned finds that
claimant did incur an injury that arose out of and in the
course of his employment when on October 22, 1990, he
slipped and fell down a ladder and his legs got entrapped in
the rung of the ladder.

The undersigned further finds that claimant has
incurred substantial loss of earning capacity and that
claimant has substantial body as a whole impairment and
restrictions that would, as a result of claimant's October
22, 1990 injury, result in claimant being relegated to
sedentary type of work with limitations as to the extent of
sitting and standing. There have been two
rehabilitation-type consultants involved and neither has
been able to find claimant a job and indicates claimant's
lack of a possibility of getting employment. This thought
is also echoed as to the medical testimony on claimant's
ability to do or inability to do certain things because of
his restrictions and medical condition. Although the
claimant had preexisting injuries, claimant was doing his
job even though he had been at work only a few hours and
that it is obvious he is now unable to do the job that he
was performing and hired to perform on October 22, 1990, but
at this time obviously unable to perform any other job that
he had done in the past.

After considering claimant's age, prior and post-injury
medical and work history, transferable skills, intelligence,
education, location of his injuries, severity, and healing
period, motivation, functional impairments, restrictions and
any other element that is considered to determine one's
industrial disability, the undersigned finds claimant is
permanently and totally disabled as a result of the October
22, 1990 injury and that said injury substantially and
materially aggravated, lighted up and heightened claimant's
preexisting conditions to his scheduled members and any back
injury or condition.

There has been no apportioning out of any prior

Page 16

disability other than claimant did in 1985 have 39 percent
impairment to his right knee. The undersigned finds that in
light of the finding of claimant being totally and
permanently disabled, there would be no apportionment out of
that disability to a scheduled member. Also, there is no
evidence of what impairment claimant had as of October 22,
1990, resulting from his October 1984 knee injury.

The undersigned further finds that as to the Second
Injury Fund, the Second Injury Fund is not liable in this
matter for the reason that the injury of October 22, 1990 in
and of itself caused claimant's permanent total disability.
The undersigned finds that there is insufficient evidence to
show that if there had not been the first injury in 1984,
claimant would not have been totally and permanently
disabled as a result of claimant's October 22, 1990 injury.

It appears to the undersigned that what claimant was
actually paid based on an hourly rate paid weekly is what
should determine the rate. Actions speak louder than words
or format as joint exhibit 16 was prepared by the employer
just prior to the hearing which was approximately two and
one-half years after the injury. It is undisputed that
claimant was paid for 12 hours. If, in fact, claimant was
paid on the basis of an eight hour day, then why would an
employer pay an employee for 12 hours instead of 8 hours
when he only worked four hours before he was injured. There
is no other evidence to dispute the claimant's six days
versus employer's five day contention that claimant worked
per week. It is understandable to the undersigned that with
the nature of this business and asbestos removal that there
could be more than five days per week worked because of the
nature of the job, the nature of the work and obviously the
effect on a particular company who was having the asbestos
removed as far as getting in and getting out. Defendants
could have had a witness testify if they truly believe
claimant was to work a five-day week, eight hours per day.
Defendants knew that the rate of benefits was a highly

Page 17

contested issue. The undersigned therefore finds that
claimant's weekly gross weekly was $792 per week which
results in a rate of $481.68.

CONCLUSIONS OF LAW

Page 18

v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz
v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v.
United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591
(1960).

That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.

That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.

That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.

Signed and filed this ____ day of May, 1993.

______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr James M Hood
Attorney at Law
302 Union Arcade Bldg
Davenport IA 52801

Ms. Carole J Anderson
Attorney at Law
600 Davenport Bank Bldg
111 E Third St
Davenport IA 52801-1987

Mr James F Christensen
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319

5-1100; 5-1108; 5-1804
5-3002; 5-3200
Filed May 14, 1993
Bernard J. O'Malley

5-3002
Rate determined to be $481.68 instead of defendants'
contention of $284.46.

5-3200
Found Second Injury Fund not liable to claimant for any
benefits.

Page 1

before the iowa industrial commissioner
____________________________________________________________
_____
:
SHELLIE KISSNER (MRS. THOMAS),:
:
Claimant, :
:
vs. :
: File No. 963058
COMPOSITE TECHNOLOGIES, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
UNITED FIRE & CASUALTY CO., :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____

The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed August 28, 1991 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
Claimant's Exhibit A was properly excluded. The hearing
assignment order dated July 17, 1991 required that all
exhibits be served on the opposing party no later than 15
days prior to the date of the hearing. Claimant's Exhibit A
was not served until four days prior to the hearing which
was less than 15 days before the August 17, 1991 hearing.
The exhibit itself is irrelevant for purposes of determining
whether the decedent may or may not have been a full-time
employee for workers' compensation purposes. The decedent's
alleged status for purposes of entitlement to life insurance
benefits is irrelevant for purposes of determining the rate
of compensation for workers' compensation benefits.
Claimant seeks weekly benefits pursuant to Iowa Code section
85.31 for the death of her spouse. The rate of compensation
should be computed under Iowa Code section 85.36(10) for
this claimant as the decedent was a part-time employee at
the time of his death.

Page 2

Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of February, 1992.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. Charles Deppe
Mr. Douglas Cook
Attorneys at Law
P.O. Box 86
Jewell, Iowa 50130

Mr. Robert C. Landess
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312

5-3001
Filed February 28, 1992
Byron K. Orton
LPW
before the iowa industrial commissioner
____________________________________________________________
_____
:
SHELLIE KISSNER (MRS. THOMAS),:
:
Claimant, :
:
vs. :
: File No. 963058
COMPOSITE TECHNOLOGIES, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
UNITED FIRE & CASUALTY CO., :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____

5-3001
Although a college student was putting in over 40 hours a
week during the summer preceding his death, he reduced his
hours while attending fall clases at the actual time of his
death. Although it was found that the decedent intended on
working full time after the first few weeks, he was viewed
as only part-time at the time of his death and the rate was
computed accordingly.

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
SHELLIE KISSNER (MRS. THOMAS),:
:
Claimant, :
:
vs. :
: File No. 963058
COMPOSITE TECHNOLOGIES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED FIRE & CASUALTY CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration brought by Shellie
Kissner, claimant, against Composite Technologies, employer
(hereinafter referred to as Composite), and United Fire &
Casualty Company, insurance carrier, defendants, for work
ers' compensation benefits as a result of the death of
Thomas Kissner on September 14, 1990. On August 19, 1991, a
hearing was held on claimant's petition and the matter was
considered fully submitted at the close of this hearing.

The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.

According to the prehearing report, the parties have
stipulated to the following matters:

1. On September 14, 1990, Thomas Kissner died from
injuries which arose out of and in the course of his employ
ment with Composite.

2. In computing claimant's rate of weekly compensa
tion, claimant is entitled to a rate of compensation using
marital status and two exemptions. What is in dispute is
the gross weekly rate.

3. All requested medical benefits have been or will be
paid by defendants.

issue

The only issue submitted by the parties for determina
tion in this proceeding is the proper rate of weekly compen
sation.

Page 2

findings of fact

Having heard the testimony and considered all the evi
dence, the deputy industrial commissioner finds as follows:

A credibility finding is necessary to this decision as
defendants place claimant's credibility at issue during
cross-examination as to the nature and extent of the employ
ment of her late husband. From her demeanor while testify
ing, claimant is found credible.

At the time of his death on September 14, 1990, Thomas
Kissner (hereinafter referred to as Tom), was married to
claimant, Shellie Kissner. Prior to his death, Tom and
Shellie had no children and Tom had no other dependants.

Tom was a college student at the time of his death.
When he died, he had only just started the fall quarter at
Iowa State University in Ames, Iowa. Tom attended only two
and a half weeks of classes prior to his death. Tom was a
full time student and was taking ten courses at the time of
his death. Prior to the summer of 1990, Tom, along with
Shellie, had attended Simpson College in Indianola, Iowa.
For the 12 months preceding his death, Tom worked for four
employers. The parties stipulated in the prehearing report
that claimant earned $72.03 from employment at Simpson
College, $1,815.75 from a business called Heartland and a
total of $2,947.45 from defendant Composite. Claimant tes
tified that Tom also worked in a bar in Indianola but she
could not recall what he had earned.

Tom's employment with Composite began in June 1990.
During that summer, he worked on average more than 40 hours
a week at the rate of $5.00 per hour with time and a half
for overtime. A normal work week at Composite for other
employees was 40 hours according to claimant's testimony.

According to Tom's time cards at Composite, he worked
eight or more hours per day prior to August 27, 1990.
Between August 27 and his death on September 14, Tom worked
from four to five hours per day. This reduction in hours
occurred when others performing similar work at the plant
were working a normal 40 hour work week.

Claimant explained that Tom had an arrangement with
Composite while he was attending school that he would only
put in what hours he could given his class schedule.
Claimant states that Tom intended on eventually working 40
hours a week at Composite after the initial few weeks at
school. His schedule permitted uninterrupted work time two
days a week. Claimant explained that she and Tom had only
recently been married and that they needed the money.
Claimant was working at Composite as well at the time of
Tom's death.

Although claimant's testimony with reference to Tom's
intention to work full time later on in the school year is
accepted as true, Tom's weekly earnings at the time of his
death were less than the earnings of a regular full time

Page 3

worker at Composite. Clearly on August 27, 1990, there was
a de facto change in the number of work hours at Composite
and this was due to his attendance at classes at Iowa State.

One fiftieth of claimant's earnings from all employment
in the 12 calendar months immediately preceding his death is
$96.70. This was the same amount of gross weekly earnings
that was used by defendant's insured to calculate claimant's
rate of compensation.

conclusions of law

I. Claimant is seeking benefits as a result of the
death of her husband. Such benefits are available under
Chapter 85, Code of Iowa, because a work injury is defined
in the statute to include death as a result of an injury.
Iowa Code section 85.61(5)(a). The parties stipulated that
the death was work related. In such cases, the employer is
libel for the expenses of the deceased employee's last ill
ness, Iowa Code sections 85.27 and 85.29; for burial
expenses of decedent not to exceed the sum of $1,000, Iowa
Code section 85.2A; and, to the Second Injury Fund in the
amount of $4,000, if the employee died with dependants or
$15,000 if no dependants survive the deceased employee, Iowa
Code section 85.65. Secondly, weekly benefits are also
available from the employer for surviving dependants of the
deceased employee. Such benefits are paid in the same
amount and manner as work injuries accept that the benefits
are paid to the surviving spouse for life or until remar
riage, Iowa Code section 84.3. A surviving spouse is con
clusively presumed dependant unless there has been a willful
desertion of decedent by the spouse. Iowa Code section
85.41(1), 85A.6.

In the case sub judice, the only dispute was the proper
rate of compensation. The dispute centers around the alter
native methods of computation set forth in Iowa Code section
85.36. With reference to computing rate of compensation,
the introductory paragraph of Iowa Code section 85.36 states
as follows:

Weekly earnings means gross salary, wages, or
earnings of an employee to which such employee
would have been entitled had the employee worked
the customary hours for the full pay period in
which the employee was injured...

Thereafter, various subsections are contained in Iowa
Code section 85.36 which describe numerous alternative meth
ods to arrive at gross weekly earnings. In the case at bar,
many subsections could apply. As claimant's husband
received his check every two weeks, subparagraph 2 may apply
which divides by 2 the biweekly pay. As claimant's husband
was paid on an hourly rate, Iowa Code section 85.36(6) can
be utilized which would average the earnings over the last
13 weeks.

However, it was found that claimant's husband at the
time of his death changed his employment status from full
time to part-time by working less than the normal 40 hours

Page 4

per week for almost three weeks prior to his death.
Although it may have been his intent to work more hours
later on and skip classes to accomplish this, claimant's
husband was customarily working less than 40 hours a week at
the time of his death. As a matter of law, it is concluded
that the rate of compensation should be computed under Iowa
Code section 85.36(10) which annualizes over 50 weeks income
from all sources over 12 months for "so-called" part-time
employees. The choice of this code section over the other
subparagraphs is consistent with the intent as set forth in
the introductory paragraph of Iowa Code section 85.36. As
the use of any other method of compensation would not result
in a reasonable approximation of the workers' earnings dur
ing the week of his death.

It was found that one fiftieth of the total earnings
over the preceding 12 calendar months was $96.70. Utilizing
the commissioner's rate booklet for an injury or death in
September 1990, and the parties' stipulation as to marital
status and exemptions, claimant's rate of compensation shall
be $89.58. This is the amount that she is currently being
paid by the defendant insurance company.

As claimant's case was at least arguable, she will be
awarded costs.

order

1. Defendants shall pay to claimant weekly death bene
fits at the rate of eighty-nine and 58/l00 dollars ($89.58)
per week from September 14, 1990, until her death or remar
riage, whichever occurs first. Defendants shall receive
credit against this award for all benefits previously paid.

2. If not already done so, defendants shall pay to
claimant the expenses of her husband's last illness and
burial expenses up to a maximum of one thousand and no/l00
dollars ($1000.00).

3. Defendants shall pay to the Treasurer of the State
of Iowa as custodian of the Second Injury Fund the sum of
four thousand and no/l00 dollars ($4,000.00).

4. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.

5. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.

6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.l.

Signed and filed this ____ day of August, 1991.

Page 5

______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr. Charles Deppe
Attorney at Law
P O Box 86
Jewell IA 50130

Mr. Robert C. Landess
Attorney at Law
Terrace Center STE 111
2700 Grand Ave
Des Moines IA 50312

5-3001
Filed August 28, 1991
LARRY P. WALSHIRE

5-3001
Although a college student was putting in over 40 hours a
week during the summer preceding his death, he reduced his
hours while attending fall classes at the actual time of his
death. Although it was found that the decedent intended on
working full time after the first few weeks, he was viewed
as only part-time at the time of his death and the rate was
computed accordingly.