BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LARRY McDONALD,
 
        
 
            Claimant,                    File No. 753275
 
        
 
        vs.
 
        
 
        NASH FINCH COMPANY,                 A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        FARMERS INSURANCE GROUP CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding claimant 
 
        permanent partial disability benefits based on a 40 percent 
 
        industrial disability.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing and joint exhibits 1 through 28. Both parties 
 
        filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue for consideration on appeal is the extent of claimant's 
 
        industrial disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        On December 12, 1983, claimant sustained a work injury to his 
 
        back when he slipped and fell getting out of the truck he was 
 
        driving for defendant employer. Claimant sought treatment for 
 
        this injury from Warren N. Verdeck, M.D., on December 16, 1983 
 
        after consulting with his family physician, 0. E. Senft, M.D. In 
 
        February 1984, Dr. Verdeck admitted claimant to the hospital for 
 
        a myelogram which revealed "very minimal bulging at L5-S1." Dr. 
 
        Verdeck consulted with James R. LaMorgese, M.D., and reached a 
 
        final diagnosis:
 
        
 
        MCDONALD v. HASH FINCH COMPANY
 
        Page 2
 
        
 
        
 
        1. Low back and left leg pain, possible radiculopathy.
 
        
 
        2. Status-post laminectomy right L5-S1.
 
        
 
        (Joint Exhibit 21)
 
        
 
        Dr. LaMorgese recommended and performed an epidural steroid 
 
        injection on claimant on March 2, 1984. Claimant improved until 
 

 
        
 
 
 
 
 
        April 24, 1984 when he began experiencing pain and was placed on 
 
        a TENS unit. Dr. Verdeck subsequently released claimant for 
 
        return to work on May 17, 1984 with work restrictions of no 
 
        lifting over ten pounds, no bending and no climbing.
 
        
 
        Claimant testified that defendant employer refused to return him 
 
        to work within those restrictions. Claimant opined that defendant 
 
        employer had such jobs available. Claimant stated that he 
 
        returned to Dr. Verdeck to see if he could get his restrictions 
 
        lessened. Dr. Verdeck refused to reduce claimant's restrictions.
 
        
 
        On July 27, 1984, Dr. Verdeck referred claimant to the Mayo 
 
        Clinic and Burton M. Onofrio, M.D.:
 
        
 
        Mr. Larry McDonald underwent a partial hemilaminectomy for 
 
        removal of an L5 extruded disk on the left on August 3, 1984. He 
 
        returned on November 1, 1984 for re-examination. At that time, 
 
        he was walking well on his heels and toes. The range of motion 
 
        of his low back was somewhat diminished, but otherwise he was 
 
        free of the leg pain which prompted his operation. I feel that 
 
        Mr. McDonald may return to his previous job as a driver with a 
 
        permanent weight lifting restriction of twenty pounds.
 
        
 
        (Jt. Ex. 24)
 
        
 
        Claimant was examined by Dr. Verdeck again on December 4, 1984. 
 
        At that time, Dr. Verdeck agreed with Dr. Onofrio's work 
 
        restriction and opined that claimant could return to work. In a 
 
        December 14, 1984 letter, Dr. Verdeck opined that claimant has a 
 
        six percent permanent disability.
 
        
 
        Claimant testified concerning a prior back injury he sustained in 
 
        1980 while unloading a truck. Claimant was also treated by Dr. 
 
        Verdeck for this injury. On July 25, 1980, Dr. Verdeck performed 
 
        a hemilaminectomy and discectomy on the right at the L-5, S-1 
 
        level. Dr. Verdeck released claimant with his work restrictions 
 
        on January 2, 1981.
 
        
 
        In a January 8, 1981 clinical note, Dr. Verdeck opines: "1/8/81 
 
        NOTE: Estimated permanent partial disability of 10%." (Jt. Ex. 
 
        12, p. 3)
 
        
 
        MCDONALD V. HASH FINCH COMPANY
 
        Page 3
 
        
 
        
 
        Claimant testified that after Dr. Onofrio released him for work 
 
        with a 20 pound lifting restriction, he went to defendant 
 
        employer and was again refused return-to-work within his 
 
        restrictions. Claimant opined that he was willing to accept any 
 
        work within his lifting restrictions.
 
        
 
        On December 24, 1984, claimant met with Norman Allen, division 
 
        personnel manager for defendant employer, to discuss returning to 
 
        work. Claimant testified that he was once again refused work. 
 
        Joint exhibit 28 is a company memo referring to claimant dated 
 
        December 21, 1984 which states: "It is 'likely' we will be 
 
        terminating Larry, as he has been on LOA 1 year as of 12/13/84. 
 
        (12/13/83 to 12/13/84) We dont [sic] see any jobs here were [sic] 
 
        we can ever reasonably accommodate [sic] this restriction. Hope 
 
        to make a final decision next few days."
 
        
 
        In January 1985, claimant received a letter from defendant 
 
        employer confirming that his medical leave would not be extended:
 
        
 
        It is with reluctance that we find we must follow up our personal 
 

 
        
 
 
 
 
 
        discussion of December 24th, with confirmation that we will be 
 
        unable to extend your medical Leave of Absence which began 
 
        December 13, 1983, and must therefore terminate your employment 
 
        effective December 31, 1984.
 
        
 
        We sincerely appreciate your past service to Nash Finch Company 
 
        and hope you will be able to resume your life in a rather normal 
 
        manner even though you will no longer be able to do heavy lifting 
 
        and related activities. We regret that the nature of our 
 
        business is so physical in nature and that you were unable to 
 
        continue with us.
 
        
 
        (Jt. Ex. 27)
 
        
 
        After claimant received this letter he began applying for other 
 
        jobs. Joint exhibit 1 is a list of 97 jobs for which claimant 
 
        applied. Thirty-three of these jobs were electrical related; 28 
 
        were agricultural or sales related; and the balance were for 
 
        truck driving. Claimant testified that when he was called for an 
 
        interview he was turned down when the interviewer learned of his 
 
        20 pound lifting restriction.
 
        
 
        Claimant eventually was able to obtain work in April 1985 as a 
 
        truck driver with West Side Transport after he agreed to sign a 
 
        waiver stating that he would not hold them liable for his back. 
 
        Claimant left this job to work for another trucking company for 
 
        higher pay. Claimant quit that job August 22, 1986 because of the 
 
        long hours and a dispute over an accident.
 
        
 
        Claimant is currently working as a truck driver for his
 
        
 
        MCDONALD V. HASH FINCH COMPANY
 
        Page 4
 
        
 
        
 
        brother-in-law's logging company. Claimant testified concerning 
 
        the nature of his work for his brother-in law:
 
        
 
        Q. What type of duties do you have to perform for Chapman 
 
        Logging?
 
        
 
        A. I'm a driver. He has four trailers up there and what he does 
 
        is loads them with grade lumber or logs and my job is simply to 
 
        come in, I throw log chains over the loads or tarp straps over 
 
        the loads and chain them down or strap them down and I go. I get 
 
        wherever I'm going, I loosen up the chains or the straps and from 
 
        there somebody else unloads it, and when they're done I'm free to 
 
        go.
 
        
 
        Q. Okay. Do you have to lift in excess of 20 pounds?
 
        
 
        A. I try not to.
 
        
 
        Q. Okay. And do you find that you have to?
 
        
 
        A. Occasionally, yes. Well, whenever you're throwing chains -- 
 
        what you do is you roll the chain up and so you can get it in one 
 
        hand. You hold the other end and you throw it over the trailer, 
 
        and I have gotten it down to where I only take like two loops of 
 
        the chain and throw it and then go around the other side, climb 
 
        up on the trailer and pull the chain down so I don't have to -- I 
 
        don't have-to throw as much, because twisting off balance like 
 
        that throwing a log chain does --you know, it could really hurt 
 
        you, so I don't do
 
        
 
        
 

 
        
 
 
 
 
 
        (Transcript, pages 85-86)
 
        
 
        Claimant stated that he is paid $.20 per mile working for his 
 
        brother-in-law. Claimant estimated that his annual earnings would 
 
        be $20,000. Claimant testified that his job with his 
 
        brother-in-law is subject to the amount of work available each 
 
        week and that he is not guaranteed any amount of money each week.
 
        
 
        Claimant stated that at the time of his injury in 1983, he was 
 
        earning $34,547 a year. In 1982 his income was $33,010; in 1981, 
 
        $28,669; and in 1980, $14,114.
 
        
 
        Claimant has an Associate of Arts degree with honors in 
 
        agricultural business. He served three and one-half years in the 
 
        air force and completed a six month aerospace ground equipment 
 
        training program. This work involved mechanical and electrical 
 
        trouble-shooting. Claimant worked as a lab technician at
 
        
 
        MCDONALD V. HASH FINCH COMPANY
 
        Page 5
 
        
 
        
 
        Collins Radio and completed an eight year apprenticeship program 
 
        to become a lineman. Claimant is 40 years old.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law contained in the arbitration decision are 
 
        appropriate to the issue and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The record reveals that defendants have refused to return 
 
        claimant to work within his restrictions. Allen maintained that 
 
        defendant employer has work within claimant's restrictions, but 
 
        in his memo and letter he clearly states that defendant employer 
 
        cannot accommodate claimant's work restrictions. Allen discussed 
 
        the dispatcher job and seemed to indicate that claimant was not 
 
        hired because he was not willing to relocate.
 
        
 
        Through his own motivation and effort claimant has been able to 
 
        secure employment within his 20 pound lifting restriction but not 
 
        without difficulty. Claimant was turned down many times before 
 
        he was able to secure employment as a truck driver. When he did 
 
        obtain employment he had to sign a waiver of claim for his back 
 
        problem. Claimant is currently working for his brother-in-law on 
 
        anat-will basis with no guarantee as to the amount of the work he 
 
        will have each week. Claimant opined that he expects to earn 
 
        about $20,000 per year in his current job.
 
        
 
        Taking all the factors of industrial disability into account, it 
 
        is determined that claimant suffers a 40 percent reduction in 
 
        earning capacity as a result of the December 13, 1983 work 
 
        injury.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant is 40 years old.
 
        
 
        2. Claimant is a high school graduate and has an associate of 
 
        arts degree with honors in agricultural business/sales.
 
        
 
        3. Claimant served in the U.S. Air Force and has specialized 
 
        training in aerospace ground equipment maintenance and repair.
 
        
 
        4. Claimant was unable to use that training in the commercial 
 

 
        
 
 
 
 
 
        labor market.
 
        
 
        5. Claimant completed an eight year program to become an 
 
        electrical service company lineman.
 
        
 
        6. Claimant operated a small business in which he performed 
 
        services as a nonlicensed electrician.
 
        
 
        MCDONALD V. HASH FINCH COMPANY
 
        Page 6
 
        
 
        
 
        7. All of these employments involve lifting substantial amounts 
 
        of weights as well as bending, pushing and pulling maneuvers on 
 
        occasion.
 
        
 
        8. Claimant began work with Nash Finch Company as a trucker in 
 
        September 1978.
 
        
 
        9. Nash Finch is a grocery wholesaler and claimant was required 
 
        to load and unload semi-trucks of grocery items weighing from 
 
        five to 110 pounds.
 
        
 
        10. Claimant functioned adequately at this job until he sustained 
 
        a back injury while unloading his truck in May 1980.
 
        
 
        11. Claimant subsequently underwent a laminectomy at L5-S1 on the 
 
        right which laminectomy resulted in a permanent partial 
 
        impairment of 10 percent of the body as a whole.
 
        
 
        12. Claimant was released to light duty work on November 17, 1980 
 
        and to full duty work on January 6 or 7, 1981.
 
        
 
        13. Following his full duty work release, claimant was able to 
 
        handle all aspects of his job as adequately as he had done prior 
 
        to the 1980 back injury.
 
        
 
        14. On December 12, 1983, claimant injured himself in the course 
 
        of his employment when he stepped in the company parking lot in a 
 
        frozen wheel rut and fell down.
 
        
 
        15. On August 2, 1984, claimant underwent a secondary laminectomy 
 
        and discectomy at L5-S1 on the left.
 
        
 
        16. Claimant has not returned to work for Nash Finch since his 
 
        December 12, 1983 injury and Nash Finch terminated claimant on 
 
        December 31, 1984.
 
        
 
        17. Claimant had earned $34,547.86 at Nash Finch prior to his 
 
        injury in 1983.
 
        
 
        18. Claimant now has a 20 pound weight lifting restriction and a 
 
        mild physical impairment attributable to his December 12, 1983 
 
        work injury.
 
        
 
        19. Nash Finch did not make even minimal efforts to accommodate 
 
        claimant or to attempt to rehabilitate him.
 
        
 
        20. Claimant is well motivated and extensively sought work 
 
        following his termination by Nash Finch.
 
        
 
        21. Claimant was able to secure employment only by taking lower 
 
        pay and less secure positions which also offered lesser benefits.
 
        
 
        MCDONALD V. HASH FINCH COMPANY
 
        Page 7
 

 
        
 
 
 
 
 
        
 
        22. Claimant has remained in the trucking industry.
 
        
 
        23. Claimant now works for his brother-in-law as an at-will 
 
        employee whose income and employment is a function of the level 
 
        of business that his brother-in-law's company carries on.
 
        
 
        24. Claimant's earnings annually with his brother-in-law's 
 
        business will be slightly more than one-half of those he would 
 
        have enjoyed at Nash Finch had he been able to complete the work 
 
        year in 1983 without injury.
 
        
 
        25. Claimant has sustained a loss of earning capacity of 40 
 
        percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant is entitled to permanent partial disability benefits 
 
        resulting from his injUry of December 12, 1983 of 40 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant permanent partial disability 
 
        benefits for two hundred (200) weeks at the weekly rate of three 
 
        hundred ninety-nine and 55/100 dollars ($399.55).
 
        
 
        That defendants pay accrued amounts in a lump sum.
 
        
 
        That defendants pay interest pursuant to Iowa Code section 85.30.
 
        
 
        That defendants receive credit for amounts previously paid.
 
        
 
        That defendants pay costs including the costs of the 
 
        transcription of the hearing proceeding.
 
        
 
        That defendants file claim activity reports as required by the 
 
        agency.
 
        
 
        Signed and filed this 25th day of August, 1988.
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LARRY McDONALD,
 
         
 
              Claimant,
 
                                                File No. 753275
 
         vs.
 
         
 
         NASH FINCH COMPANY,                      A P P E A L
 
         
 
              Employer,                         D E C I S I O N
 
         and
 
         
 
         FARMERS INSURANCE GROUP CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant permanent partial disability benefits based on a 40 
 
         percent industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 28.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue for consideration on appeal is the extent of 
 
         claimant's industrial disability.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              On December 12, 1983, claimant sustained a work injury to 
 
         his back when he slipped and fell getting out of the truck he was 
 
         driving for defendant employer.  Claimant sought treatment for 
 
         this injury from Warren N. Verdeck, M.D., on December 16, 1983 
 
         after consulting with his family physician, 0. E. Senft, M.D.  In 
 
         February 1984, Dr. Verdeck admitted claimant to the hospital for 
 
         a myelogram which revealed "very minimal bulging at L5-Sl."  Dr. 
 
         Verdeck consulted with James R. LaMorgese, M.D., and reached a 
 
         final diagnosis:
 
              1.  Low back and left leg pain, possible 
 
              radiculopathy.
 
              2.  Status-post laminectomy right L5-Sl.
 
         
 
         (Joint Exhibit 21)
 
         
 
              Dr. LaMorgese recommended and performed an epidural steroid 
 

 
         
 
         
 
         
 
         MCDONALD V. HASH FINCH COMPANY
 
         PAGE   2
 
         
 
         
 
         injection on claimant on March 2, 1984.  Claimant improved until 
 
         April 24, 1984 when he began experiencing pain and was placed on 
 
         a TENS unit.  Dr. Verdeck subsequently released claimant for 
 
         return to work on May 17, 1984 with work restrictions of no 
 
         lifting over ten pounds, no bending and no climbing.
 
         
 
              Claimant testified that defendant employer refused to return 
 
         him to work within those restrictions.  Claimant opined that 
 
         defendant employer had such jobs available.  Claimant stated that 
 
         he returned to Dr. Verdeck to see if he could get his 
 
         restrictions lessened.  Dr. Verdeck refused to reduce claimant's 
 
         restrictions.
 
         
 
              On July 27, 1984, Dr. Verdeck referred claimant to the Mayo 
 
         Clinic and Burton M. Onofrio, M.D.:
 
         
 
                 Mr. Larry McDonald underwent a partial 
 
              hemilaminectomy for removal of an L5 extruded disk on 
 
              the left on August 3, 1984.  He returned on November 1, 
 
              1984 for re-examination.  At that time, he was walking 
 
              well on his heels and toes.  The range of motion of his 
 
              low back was somewhat diminished, but otherwise he was 
 
              free of the leg pain which prompted his operation.  I 
 
              feel that Mr. McDonald may return to his previous job 
 
              as a driver with a permanent weight lifting restriction 
 
              of twenty pounds.
 
         
 
         (Jt. Ex. 24)
 
         
 
              Claimant was examined by Dr. Verdeck again on December 4, 
 
         1984.  At that time, Dr. Verdeck agreed with Dr. Onofrios work 
 
         restriction and opined that claimant could return to work.  In a 
 
         December 14, 1984 letter, Dr. Verdeck opined that claimant has a 
 
         six percent permanent disability.
 
         
 
              Claimant testified concerning a prior back injury he 
 
         sustained in 1980 while unloading a truck.  Claimant was also 
 
         treated by Dr. Verdeck for this injury.  On July 25, 1980, Dr. 
 
         Verdeck performed a hemilaminectomy and discectomy on the right 
 
         at the L-5, S-1 level.  Dr. Verdeck released claimant with his 
 
         work restrictions on January 2, 1981.
 
         
 
              In a January 8, 1981 clinical note, Dr. Verdeck opines: 
 
         "1/8/81 NOTE:  Estimated permanent partial disability of 10%." 
 
         (Jt. Ex. 12, p. 3)
 
         
 
              Claimant testified that after Dr. Onofrio released him for 
 
         work with a 20 pound lifting restriction, he went to defendant 
 
         employer and was again refused return-to-work within his 
 
         restrictions.  Claimant opined that he was willing to accept any 
 
         work within his lifting restrictions.
 
              
 
              On December 24, 1984, claimant met with Norman Allen, 
 
         division personnel manager for defendant employer, to discuss 
 
         returning to work.  Claimant testified that he was once again 
 
         refused work.  Joint exhibit 28 is a company memo referring to 
 
         claimant dated December 21, 1984 which states:  "It is 'likely' 
 
         we will be terminating Larry, as he has been on LOA 1 year as of 
 
         12/13/84.  (12/13/83 to 12/13/84) We dont [sic] see any jobs here 
 
         were [sic] we can ever reasonably accomodate [sic] this 
 
         restriction.  Hope to make a final decision next few days."
 
         
 
              In January 1985, claimant received a letter from defendant 
 
         employer confirming that his medical leave would not be 
 

 
         
 
         
 
         
 
         MCDONALD V. HASH FINCH COMPANY
 
         PAGE   3
 
         
 
         
 
         extended:
 
         
 
                 It is with reluctance that we find we must follow up 
 
              our personal discussion of December 24th, with 
 
              confirmation that we will be unable to extend your 
 
              medical Leave of Absence which began December 13, 1983, 
 
              and must therefore terminate your employment effective 
 
              December 31, 1984.
 
         
 
                 We sincerely appreciate your past service to Nash 
 
              Finch Company and hope you will be able to resume your 
 
              life in a rather normal manner even though you will no 
 
              longer be able to do heavy lifting and related 
 
              activities.  We regret that the nature of our business 
 
              is so physical in nature and that you were unable to 
 
              continue with us.
 
         
 
         (Jt. Ex. 27)
 
         
 
              After claimant received this letter he began applying for 
 
         other jobs.  Joint exhibit 1 is a list of 97 jobs for which 
 
         claimant applied.  Thirty-three of these jobs were electrical 
 
         related; 28 were agricultural or sales related; and the balance 
 
         were for truck driving.  Claimant testified that when he was 
 
         called for an interview he was turned down when the interviewer 
 
         learned of his 20 pound lifting restriction.
 
         
 
              Claimant eventually was able to obtain work in April 1985 as 
 
         a truck driver with West Side Transport after he agreed to sign a 
 
         waiver stating that he would not hold them liable for his back.  
 
         Claimant left this job to work for another trucking company for 
 
         higher pay.  Claimant quit that job August 22, 1986 because of 
 
         the long hours and a dispute over an accident.
 
         
 
              Claimant is currently working as a truck driver for his 
 
         brother-in-law's logging company.  Claimant testified concerning 
 
         the nature of his work for his brother-in law:
 
         
 
              Q.  What type of duties do you have to perform for 
 
              Chapman Logging?
 
         
 
              A.  I'm a driver.  He has four trailers up there and 
 
              what he does is loads them with grade lumber or logs 
 
              and my job is simply to come in, I throw log chains 
 
              over the loads or tarp straps over the loads and chain 
 
              them down or strap them down and I go.  I get wherever 
 
              I'm going, I loosen up the chains or the straps and 
 
              from there somebody else unloads it, and when they're 
 
              done I'm free to go.
 
         
 
              Q.  Okay.  Do you have to lift in excess of 20 pounds?
 
         
 
              A.  I try not to.
 
         
 
              Q.  Okay.  And do you find that you have to?
 
         
 
              A.  Occasionally, yes.  Well, whenever you're throwing 
 
              chains -- what you do is you roll the chain up and so 
 
              you can get it in one hand.  You hold the other end and 
 
              you throw it over the trailer, and I have gotten it 
 
              down to where I only take like two loops of the chain 
 
              and throw it.and then go around the other side, climb 
 
              up on the trailer and pull the chain down so I don't 
 

 
         
 
         
 
         
 
         MCDONALD V. HASH FINCH COMPANY
 
         PAGE   4
 
         
 
         
 
              have to -- I don't have to throw as much, because 
 
              twisting off balance like that throwing a log chain 
 
              does --you know, it could really hurt you, so I don't 
 
              do it.
 
         
 
         (Transcript, pages 85-86)
 
         
 
              Claimant stated that he is paid $.20 per mile working for 
 
         his brother-in-law.  Claimant estimated that his annual earnings 
 
         would be $20,000.  Claimant testified that his job with his 
 
         brother-in-law is subject to the amount of work available each 
 
         week and that he is not guaranteed any amount of money each 
 
         week.
 
         
 
              Claimant stated that at the time of his injury in 1983, he 
 
         was earning $34,547 a year.  In 1982 his income was $33,010; in 
 
         1981, $28,669; and in 1980, $14,114.
 
         
 
              Claimant has an Associate of Arts degree with honors in 
 
         agricultural business.  He served three and one-half years in the 
 
         air force and completed a six month aerospace ground equipment 
 
         training program.  This work involved mechanical and electrical 
 
         trouble-shooting.  Claimant worked as a lab technician at Collins 
 
         Radio and completed an eight year apprenticeship program to 
 
         become a lineman.  Claimant is 40 years old.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issue and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The record reveals that defendants have refused to return 
 
         claimant to work within his restrictions.  Allen maintained that 
 
         defendant employer has work within claimant's restrictions, but 
 
         in his memo and letter he clearly states that defendant employer 
 
         cannot accommodate claimant's work restrictions.  Allen discussed 
 
         the dispatcher job and seemed to indicate that claimant was not 
 
         hired because he was not willing to relocate.
 
         
 
              Through his own motivation and effort claimant has been able 
 
         to secure employment within his 20 pound lifting restriction but 
 
         not without difficulty.  Claimant was turned down many times 
 
         before he was able to secure employment as a truck driver.  When 
 
         he did obtain employment he had to sign a waiver of claim for his 
 
         back problem.  Claimant is currently working for his 
 
         brother-in-law on an at-will basis with no guarantee as to the 
 
         amount of the work he will have each week.  Claimant opined that 
 
         he expects to earn about $20,000 per year in his current job.
 
         
 
              Taking all the factors of industrial disability into 
 
         account, it is determined that claimant suffers a 40 percent 
 
         reduction in earning capacity as a result of the December 13, 
 
         1983 work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 40 years old.
 
         
 
              2.  Claimant is a high school graduate and has an associate 
 
         of arts degree with honors in agricultural business/sales.
 
         
 

 
         
 
         
 
         
 
         MCDONALD V. HASH FINCH COMPANY
 
         PAGE   5
 
         
 
         
 
              3.  Claimant served in the U.S. Air Force and has 
 
         specialized training in aerospace ground equipment maintenance 
 
         and repair.
 
         
 
              4.  Claimant was unable to use that training in the 
 
         commercial labor market.
 
         
 
              5.  Claimant completed an eight year program to become an 
 
         electrical service company lineman.
 
         
 
              6.  Claimant operated a small business in which he performed 
 
         services as a nonlicensed electrician.
 
         
 
              7.  All of these employments involve lifting substantial 
 
         amounts of weights as well as bending, pushing and pulling 
 
         maneuvers on occasion.
 
         
 
              8.  Claimant began work with Nash Finch Company as a trucker 
 
         in September 1978.
 
         
 
              9.  Nash Finch is a grocery wholesaler and claimant was 
 
         required to load and unload semi-trucks of grocery items weighing 
 
         from five to 110 pounds.
 
         
 
             10.  Claimant functioned adequately at this job until he 
 
         sustained a back injury while unloading his truck in May 1980.
 
         
 
             11.  Claimant subsequently underwent a laminectomy at L5-Sl 
 
         on the right which laminectomy resulted in a permanent partial 
 
         impairment of 10 percent of the body as a whole.
 
         
 
             12.  Claimant was released to light duty work on November 17, 
 
         1980 and to full duty work on January 6 or 7, 1981.
 
         
 
              13.  Following his full duty work release, claimant was able 
 
         to handle all aspects of his job as adequately as he had done 
 
         prior to the 1980 back injury.
 
         
 
              14.  On December 12, 1983, claimant injured himself in the 
 
         course of his employment when he stepped in the company parking 
 
         lot in a frozen wheel rut and fell down.
 
         
 
              15.  On August 2, 1984, claimant underwent a secondary 
 
         laminectomy and discectomy at L5-S1 on the left.
 
         
 
              16.  Claimant has not returned to work for Nash Finch since 
 
         his December 12, 1983 injury and Nash Finch terminated claimant 
 
         on December 31, 1984.
 
         
 
              17.  Claimant had earned $34,547.86 at Nash Finch prior to 
 
         his injury in 1983.
 
         
 
              18.  Claimant now has a 20 pound weight lifting restriction 
 
         and a mild physical impairment attributable to his December 12, 
 
         1983 work injury.
 
         
 
              19.  Nash Finch did not make even minimal efforts to 
 
         accommodate claimant or to attempt to rehabilitate him.
 
         
 
              20.  Claimant is well motivated and.extensively sought work 
 
         following his termination by Nash Finch.
 
         
 
              21.  Claimant was able to secure employment only by taking 
 

 
         
 
         
 
         
 
         MCDONALD V. HASH FINCH COMPANY
 
         PAGE   6
 
         
 
         
 
         lower pay and less secure positions which also offered lesser 
 
         benefits.
 
         
 
              22.  Claimant has remained in the trucking industry.
 
         
 
              23.  Claimant now works for his brother-in-law as an at-will 
 
         employee whose income and employment is a function of the level 
 
         of business that his brother-in-law's company carries on.
 
         
 
              24.  Claimant's earnings annually with his brother-in-law's 
 
         business will be slightly more than one-half of those he would 
 
         have enjoyed at Nash Finch had he been able to complete the work 
 
         year in 1983 without injury.
 
         
 
              25.  Claimant has sustained a loss of earning capacity of 40 
 
         percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits resulting from his injury of December 12, 1983 of 40 
 
         percent.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
         
 
         
 
         MCDONALD V. HASH FINCH COMPANY
 
         PAGE   7
 
         
 
         
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits for two hundred (200) weeks at the weekly rate of three 
 
         hundred ninety-nine and 55/100 dollars ($399.55).
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants receive credit for amounts previously paid.
 
         
 
              That defendants pay costs including the costs of the 
 
         transcription of the hearing proceeding.
 
         
 
              That defendants file claim activity reports as required by 
 
         the agency.
 
         
 
              Signed and filed this 25th day of August, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. J. Richard Johnson
 
         Attorney at Law
 
         P.O. Box 607
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Richard C. Garberson
 
         Attorney at Law
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406-2107
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40 - 1804
 
                                                  Filed August 25, 1988
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY MCDONALD,
 
         
 
              Claimant,
 
                                                  File No. 753275
 
         vs.
 
         
 
         NASH FINCH COMPANY,                        A P P E A L
 
         
 
               Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         FARMERS INSURANCE GROUP CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40 - 1804
 
         
 
              The issue on appeal was the extent of claimant's industrial 
 
         disability.  Claimant had a 20 pound lifting restriction that was 
 
         a result of a slip and fall while working for the employer.  
 
         Claimant, through his own motivation and effort, had secured 
 
         employment with the restriction but not without difficulty.  
 
         Claimant had been turned down many times before he was able to 
 
         secure employment and when he did secure employment he was 
 
         required to sign a waiver of claim for his back problem.  
 
         Defendants refused to return claimant to work with his 
 
         restrictions.  Deputy's determination of a 40 percent industrial 
 
         disability was affirmed.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         LARRY McDONALD,
 
         
 
              Claimant,
 
                                                 File No. 753275
 
         VS.
 
         
 
         NASH FINCH COMPANY,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         FARMERS INSURANCE GROUP CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Larry McDonald, against his employer, Nash Finch Company, and its 
 
         insurance carrier, Farmers Insurance Group Co., to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained December 12, 1983.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Cedar Rapids, Iowa, on November 18, 1986.  The record was 
 
         considered fully submitted at close of hearing.  A first report 
 
         of injury was filed January 3, 1984.  Pursuant to the prehearing 
 
         report, the parties stipulated that claimant has been paid thirty 
 
         weeks of compensation characterized as permanent partial 
 
         disability benefits at a rate of $399.55. Pursuant to the 
 
         prehearing report, the parties stipulated that claimant is 
 
         entitled to healing period benefits from December 13, 1984 
 
         through October 31, 1984.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of Norman Allen, as well as joint exhibits 1 through 
 
         28.  Joint exhibits 1 and 2 are claimant's listing of perspective 
 
         employer contacts in 1985 and 1986, respectively.  Joint exhibits 
 
         3 through 10 are claimant's 1978, 1979, 1980, 1981, 1982, 1983, 
 
         1984, and 1985 federal income tax and W2 statements, 
 
         respectively.  Joint exhibit 11 is claimant's 1986 earnings 
 
         statements to date of hearing.  Joint exhibit 12 is office notes 
 
         of Warren N. Verdeck, M.D., from May 9, 1980 through December 4, 
 
         1984.  Joint exhibits 13 and 14 are reports of Dr. Verdeck of May 
 
         23, 1984 and May 1, 1984, respectively.  Joint exhibit 15 is an 
 
         Anamosa Community Hospital work release of May 8, 1984.  Joint 
 
         exhibits 16 through 19 are reports of Dr. Verdeck of May 21, 
 
         1984, July 5, 1984, August 13, 1984, and December 14, 1984, 
 
         respectively.  Joint exhibits 20 and 21 are clinical resumes for 
 
         Mercy Hospital, the first being for May 29, 1980 and July 29, 
 
         1980, the second being for March 24, 1984.  Joint exhibit 22 is a 
 
         report of James R. LaMorgese, M.D., of March 15, 1984.  Joint 
 
         exhibit 23 is a report of Robert L. Hash, M.D., of August 20, 
 

 
         1984.  Joint exhibit 24 is a report of Burton M. Onofrio, M.D., 
 
         of November 2, 1984.  Joint exhibit 25 is a DOT doctor's 
 
         certificate.  Joint exhibit 26 is a physical examination of 
 
         drivers of 0. E. Sevft, M.D., of March 22, 1984.  Joint exhibit 
 
         27 is claimant's personnel file with the employer.  Joint exhibit 
 
         28 is a December 21, 1984 memo of Norman Allen.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant received an injury on December 12, 1983 which arose 
 
         out of and in the course of his employment, and that that injury 
 
         was the cause of temporary and permanent partial disability.  
 
         They further stated that the commencement date for permanent 
 
         partial disability is November 1, 1984, and that benefits are 
 
         paid at the rate of $399.55. They agreed that defendants are 
 
         entitled to credit for thirty weeks of compensation paid at that 
 
         rate prior to hearing and that claimant's temporary total or 
 
         healing period entitlement runs from December 13, 1983 through 
 
         October 31, 1984.  The sole issue remaining to be decided is 
 
         whether claimant is entitled to permanent partial disability 
 
         benefits and the extent of any such entitlement.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he is forty years old and a high 
 
         school graduate who had taken general courses and received 
 
         average grades.  Claimant also has an associate of arts degree in 
 
         agricultural business which he received with honors.  He reported 
 
         that his associate degree courses include courses in 
 
         salesmanship, psychology, and human relationships, swine and herd 
 
         management, accounting, finance and business law.  Claimant also 
 
         spent three and one-half years in the air force where he 
 
         completed a six month aerospace ground equipment training 
 
         program.  He characterized his work following that training as 
 
         mostly mechanical troubleshooting with occasional electrical 
 
         troubleshooting on the equipment.  He agreed that he also had 
 
         helped train other enlisted personnel in aerospace ground 
 
         equipment work.  Claimant reported he could not use his training 
 
         in the civilian job market, however, and that subsequent to his 
 
         service time, he worked as a lab technician at Collins Radio.  
 
         Claimant subsequently entered a lineman apprenticeship program.  
 
         The apprenticeship took eight years to complete.  Various aspects 
 
         of the lineman program involved handling from 200 to 600 pounds 
 
         of wire either dragging, lifting, or pulling, and bending and 
 
         carrying maneuvers.  Claimant was required to have a chauffeur's 
 
         license, dig pole holes either with a derrick unit or by hand, 
 
         and to dynamite holes.  Claimant left that job in September 1977 
 
         and began work as a nonlicensed electrical wirer in his own 
 
         business.  A great deal of claimant's electrical wiring involved 
 
         milking parlour renovation and installations; claimant testified 
 
         he assisted in maneuvering bulk tanks weighing from 250 to 400 
 
         pounds.  Claimant also did other farm wiring and indicated that 
 
         he then had to lift in excess of twenty pounds.  Claimant's wages 
 
         at REC when.he resigned were $8.66 per hour or approximately 
 
         $16,000 per year.  Claimant's wages while working in,his own 
 
         wiring business ranged from a weekly draw of $200 per week, to a 
 
         salaried employee status of $6.00 per hour, to no income as the 
 
         business declined.
 
         
 
              Claimant began work for Nash Finch as a trucker in September 
 
         1978.  He reported his health then as good without any weight 
 
         restrictions.  Claimant reported that he was paid per hour while 
 
         driving and hourly while working but not driving.  His 1979 Nash 
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   3
 
         
 
         
 
         Finch income was $24,914.11. In May 1980, claimant injured his 
 
         back while unloading his truck.  He sustained a herniated disc 
 
         and was hospitalized with a laminectomy per Warren Verdeck, M.D. 
 
         Claimant was released to work on November 17, 1980 restricted to 
 
         not unloading loads.  A 35 pound weight lifting restriction was 
 
         lifted in early January 1981.  Claimant reported that following 
 
         January 1981, he physically handled all unloading required of 
 
         him.  Nash Finch is a grocery wholesaler and its truckers 
 
         routinely load and unload items weighing from 5 to 110 pounds.  
 
         Claimant's Nash Finch income in 1980 was $14,114.90; in 1981, 
 
         $28,669.86; in 1982, $33,011.11; and in 1983, $34,547.86.
 
         
 
              Claimant was injured on December 12, 1983 when he stepped in 
 
         a frozen tire rut in the Nash Finch parking lot and fell down.  
 
         Claimant subsequently again treated with Dr. Verdeck and later 
 
         Dr. LaMorgese.  On May 8, 1984, Dr. Verdeck released claimant to 
 
         .return to work with a ten pound restriction provided on lifting, 
 
         pulling or pushing and no bending, standing, or climbing.  The 
 
         employer would not accommodate those restrictions.  Claimant 
 
         expressed his belief that there were jobs available at Nash Finch 
 
         on the dock that required no lifting and permitted movement 
 
         about.
 
         
 
              Claimant was subsequently referred to the Mayo Clinic where 
 
         Burton M. Onofrio, M.D., performed a left L5 laminectomy and 
 
         discectomy on August 3, 1984.  A large extruded disc was found.  
 
         On November 2, 1984, Dr. Onofrio reexamined claimant.  He then 
 
         found claimant's range of motion in the low back somewhat 
 
         diminished but that claimant was free of leg pain.  Dr. Onofrio 
 
         felt claimant could return to his previous job as a driver with 
 
         permanent 20 pound weight lifting restriction.  Claimant 
 
         testified that Nash Finch advised him he would not be permitted 
 
         to return to work with that restriction.  Claimant was 
 
         subsequently reexamined by Dr. Verdeck who agreed with the 
 
         restrictions imposed by Dr. Onofrio.  Claimant's year of medical 
 
         leave with Nash Finch ended on December 31, 1984.  Claimant's 
 
         employment with Nash Finch was formally terminated on December 
 
         31, 1984.  Claimant and Mr. Norman Allen, division personnel 
 
         manager of Nash Finch Company, had apparently discussed the 
 
         matter of claimant's employment with the company on December 24, 
 
         1984.
 
         
 
              Claimant reported that he subsequently applied for jobs 
 
         throughout eastern Iowa looking primarily in electrical fields 
 
         and services, agricultural business sales and services, and 
 
         trucking.  He reported that he was unable to get a number of 
 
         positions because he held only an associate of arts and not a 
 
         four year degree and that he got interviews with some companies 
 
         but did not receive position offers once the interviewer learned 
 
         of his weight restriction.  Claimant has had part time work doing 
 
         sales with his local booster club and doing radio ad sales.  
 
         Claimant reported that he applied for a dispatcher job at Nash 
 
         Finch but was not hired for.the position.  He indicated that he 
 
         learned of the position on his own and not through company 
 
         personnel.  Claimant testified that there were clerical jobs, 
 
         some manager jobs, and grocery buyer jobs at Nash Finch which he 
 
         felt he was capable of performing and about which he asked Nash 
 
         Finch personnel.
 
         
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   4
 
         
 
         
 
              Claimant ultimately received a job with West Side Transport 
 
         which began on April 22, 1985.  Claimant signed a waiver of 
 
         physical defect before beginning work with West Side.  He drove a 
 
         truck for the company hauling wheat germ through out the midwest.  
 
         Claimant indicated that he earned $5,861.14 with West Side in 
 
         1985 and was paid for his mileage only and not for time spent 
 
         unloading.  Claimant was also responsible for his own expenses 
 
         while on the road and was gone throughout the week.  He estimated 
 
         those would normally run about $20 per day, but that he 
 
         maintained his expenses at about $10 per day because he did not 
 
         eat more than one meal.  Claimant left West Side and began work 
 
         for LeMars Transport, Inc., on September 4, 1985.  Claimant there 
 
         earned 20 percent of the gross of his truck but was not paid 
 
         expenses.  He earned $5,490.63 with LeMars in 1985.  Claimant 
 
         reported that he was forced to dispatch from 90 to 100 hours per 
 
         week which he was unable to do.  Legal dispatch is 70 hours per 
 
         week.  Claimant left work with LeMars on August 22, 1986 because 
 
         of a noninjury related dispute.  Claimant had earned  $14,757.93 
 
         with LeMars in 1986.  Claimant was hired as company truck driver 
 
         for Chapman Logging, a business owned by his brother-in-law, on 
 
         October 5, 1986.  He reported that he receives $.20 per mile and 
 
         is away from home overnight only one night per week.  Claimant 
 
         stated he has no guarantee of the level of work that will be 
 
         available for him and he is paid only for work done.  As of 
 
         hearing, claimant had earned $2,675.80 at Chapman and estimated 
 
         annual earnings of around $20,000 if he were to continue work 
 
         there.  Claimant reported that he does not do any loading or 
 
         unloading but for throwing a chain over loaded logs.  He reported 
 
         he tries not to lift over 20 pounds.  Claimant reported that to 
 
         continue driving he must get out and walk about every two and 
 
         one-half hours or so.  He is currently taking no medications and 
 
         is not following a medically imposed exercise program.  He 
 
         reported that but for his lifting restriction, there is little 
 
         that he can't do now that he could do prior to his injury.
 
         
 
              Norman Allen, division personnel manager for Nash Finch 
 
         Company, testified that the company did not offer claimant other 
 
         positions because it had no jobs which claimant could do and 
 
         which claimant was willing to consider.  He reported that 
 
         claimant was unwilling to consider lower pay, lower level jobs, 
 
         and that claimant had mixed feelings as to a dispatcher job in 
 
         that claimant likely would need to transfer if he took that 
 
         position.  Mr. Allen testified that that was the intent 
 
         underlying exhibit 28.  Exhibit 28 is a company correspondence 
 
         memo from Allen to a Bunny Simmons.  In the memo, Allen states 
 
         that it is likely claimant will be terminated as he has been on 
 
         COA one year as of December 13, 1984 with a 25 pound permanent 
 
         lifting restriction.  He reported that "we don't see any jobs 
 
         here where we can even reasonably accommodate this restriction." 
 
         Allen described as "his error" that he did not consider claimant 
 
         for the dispatcher job.  He reported that he chose the final 
 
         three persons to be interviewed for that position.  They were 
 
         subsequently interviewed by other interviewers.  Mr. Allen stated 
 
         all interviewees were known by the final interviewers and that 
 
         that those interviewers could have called claimant in for a final 
 
         interview.
 
         
 
              On January 8, 1981, Dr. Verdeck estimated claimant's then 
 
         "permanent partial disability" as 10 percent apparently of the 
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   5
 
         
 
         
 
         body as a whole.  Claimant's 1984 laminectomy was at L5-Sl on the 
 
         right.  In a letter of May 1, 1984, Dr. Verdeck reported that it 
 
         has been five months since claimant injured his back and .he was 
 
         still having significant symptoms and that the doctor, therefore, 
 
         opined that claimant would not be able to return to his previous 
 
         employment which was described as involving routine handling of 
 
         merchandise weighing between 5 to 100 pounds, piece by piece, 
 
         with between 1200 to 1400 individual pieces per load.  The doctor 
 
         stated that if there was any capacity of work claimant could do 
 
         that did not involve this, it would be worth a trial of 
 
         employment with weight restriction, but that he doubted whether 
 
         claimant could return to his previous level of employment. on May 
 
         21, 1984, Dr. Verdeck opined that claimant had a 5 percent 
 
         residual disability from his current problem on top of his 
 
         previous 10 percent disability from the [1980] laminectomy.  On 
 
         December 14, 1984, Dr. Verdeck indicated that claimant had a 
 
         "permanent disability rating" of approximately 6 percent.
 
         
 
              The balance of the evidence was reviewed in the disposition 
 
         of this matter.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Our sole concern is the question of the extent of claimant's 
 
         permanent partial disability entitlement.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  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 
 
         disability 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 
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   6
 
         
 
         
 
         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 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 disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              A defendant employer's refusal to give any sort of work to a 
 
         claimant after he suffers injury may justify an award of 
 
         disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980).  Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  Id..
 
         
 
              Apportionment of disability is limited to those situations 
 
         where the prior injury or illness, unrelated to employment, 
 
         independently produces some ascertainable portion of the ultimate 
 
         industrial disability found to exist following the employment 
 
         related aggravation.  Varied Industries, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant is a relatively young man who appears to be of 
 
         considerable intellectual ability and who has attained both 
 
         education, training and proficiency in a number of areas.  
 
         Unfortunately, much of claimant's training is in areas where he 
 
         would need to routinely exert himself more than his current 20 
 
         pound weight lifting restriction allows.  Claimant is well 
 
         motivated and has extensively sought work which would use his 
 
         agricultural business and sales courses. (See exhibits 1 and 2.) 
 
         Unfortunately, the economy, claimant's locale and his lack of a 
 
         Bachelor's degree have all curtailed claimant's attempts to find 
 
         lighter weight work utilizing that education.  Despite Mr. 
 
         Allen's testimony, this record as a whole does not show that 
 
         claimant's former employer has made even minimal attempts to 
 
         accommodate claimant or rehabilitate him for other work within 
 
         its own work force.  Such a position might be understandable in a 
 
         small company or where the company is dealing with an injured 
 
         individual whose job skills and potential lie only with heavy 
 
         manual labor.  Claimant's former employer, however, is a large 
 
         organization employing some 2000 people.  Claimant has experience 
 
         both in sales and since high school in grocery merchandising.  
 
         One can well imagine areas in which these might be useful to 
 
         claimant's former employer, a grocery wholesaler.  Defendants' 
 
         steadfast refusal to assist claimant in his rehabilitation is 
 
         perhaps the most significant factor in considering claimant's 
 
         present industrial disability.
 
         
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   7
 
         
 
         
 
              Claimant has found other work since his injury.  That fact 
 
         is largely due to claimant's almost super human motivation and 
 
         his willingness to work in positions entailing lesser pay, lesser 
 
         benefits, and less personal security than he enjoyed with Nash 
 
         Finch.  Claimant's willingness to do so further undercuts 
 
         defendants' witness testimony that claimant was unwilling to 
 
         consider lower paying, nontrucking jobs with his former employer.  
 
         Claimant currently works as a trucker for his brother-in-law's 
 
         company.  One suspects he would have had a great deal more 
 
         difficulty finding secure, gainful employment within his 
 
         restrictions had he not ultimately been hired by his relative.  
 
         Claimant can handle his job provided he throws chains with care 
 
         and avoids lifting over 20 pounds.  However, his income is 
 
         subject to the vagaries of the brother-in-law's business, 
 
         apparently to a greater degree than was true when claimant was 
 
         employed at Nash Finch.  Claimant also apparently is responsible 
 
         for his own expenses, something that apparently was not true with 
 
         the defendant employer.  Claimant's gross income with his current 
 
         employer will be only slightly more than half of that he might 
 
         have expected at Nash Finch in 1983 had he worked the full year.  
 
         Claimant's current gross income will be further reduced by his 
 
         additional expenses.  The difference between claimant's current 
 
         actual income and his likely income had he remained with Nash 
 
         Finch throughout 1983 and beyond is a valid consideration in 
 
         assessing claimant's lost earning capacity.  Even though 
 
         claimant's additional permanent partial impairment following his 
 
         December 12, 1983 injury was comparatively mild, his loss of 
 
         earning capacity was fairly substantial.  We find that claimant 
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   8
 
         
 
         
 
         has sustained a 40 percent loss of earnings on account of his 
 
         December 1983 work injury.  We do not find this case appropriate 
 
         for apportionment of claimant's loss of earning capacity between 
 
         his prior functional disability and his December 1983 injury.  
 
         The record as a whole supports claimant's contention that he 
 
         functioned adequately and enjoyed no real loss of earning 
 
         capacity on.account of the 1980 injury.  Hence, apportionment is 
 
         not appropriate and the full 40 percent industrial disability is 
 
         assessed against the December 1983 injury.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant is forty (40) years old.
 
         
 
              Claimant is a high school graduate and has an associate of 
 
         arts degree with honors in agricultural business/sales.
 
         
 
              Claimant served in the U.S. Air Force and has specialized 
 
         training in aerospace ground equipment maintenance and repair.
 
         
 
              Claimant was unable to use that training in the commercial 
 
         labor market.
 
         
 
              Claimant completed an eight year program to become an 
 
         electrical service company lineman.
 
         
 
              Claimant operated a small business in which he performed 
 
         services as a nonlicensed electrician.
 
         
 
              All of these employments involve lifting substantial amounts 
 
         of weights as well as bending, pushing, and pulling maneuvers on 
 
         occasion.
 
         
 
              Claimant began work with Nash Finch Company as a trucker in 
 
         September 1978.
 
         
 
              Nash Finch is a grocery wholesaler and claimant was required 
 
         to load and unload semi-trucks of grocery items weighing from 5 
 
         to 110 pounds.
 
         
 
              Claimant functioned adequately at this job until he 
 
         sustained a back injury while unloading his truck in May 1980.
 
         
 
              Claimant subsequently underwent a laminectomy at L5-Sl on 
 
         the right which laminectomy resulted in a permanent partial 
 
         impairment of 10 percent of the body as a whole.
 
         
 
              Claimant was released to light duty work on November 17, 
 
         1980 and to full duty work on January 6 or 7, 1981.
 
         
 
              Following his full duty work release, claimant was able to 
 
         handle all aspects of his job as adequately as he had done prior 
 
         to the 1980 back injury.
 
         
 
              On December 12, 1983, claimant injured himself in the course 
 
         of his employment when he stepped in the company parking lot in a 
 
         frozen wheel rut and fell down.
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page   9
 
         
 
         
 
         
 
              On August 2, 1984, claimant underwent a second laminectomy 
 
         and discectomy at L5-Sl on the left.
 
         
 
              Claimant has not returned to work for Nash Finch since his 
 
         December 12, 1983 injury and Nash Finch terminated claimant on 
 
         December 31, 1984.
 
         
 
              Claimant had earned $34,547.86 at Nash Finch prior to his 
 
         injury in 1983.
 
         
 
              Nash Finch is a large company having over 2000 employees.
 
         
 
              Claimant now has a 20 pound weight lifting restriction and a 
 
         mild physical impairment attributable to his December 12, 1983 
 
         work injury.
 
         
 
              Claimant could not work as a trucker loading and unloading 
 
         groceries for Nash Finch, but there are jobs within the Nash 
 
         Finch operation which claimant could perform.
 
         
 
              Nash Finch did not make even minimal efforts to accommodate 
 
         claimant or to attempt to rehabilitate him.
 
         
 
              Claimant is well motivated and extensively sought work 
 
         following his termination by Nash Finch.
 
         
 
              Claimant was able to secure employment only by taking lower 
 
         pay and less secure positions which also offered lesser 
 
         benefits.
 
         
 
              Claimant has remained in the trucking industry.
 
         
 
              Claimant now works for his brother-in-law as an at-will 
 
         employee whose income and employment is the function,of the level 
 
         of business that his brother-in-law's company carries on.
 
         
 
              Claimant's earnings annually with his brother-in-law's 
 
         business will be slightly more than one half of those he would 
 
         have enjoyed at Nash Finch had he been able to complete the work 
 
         year in 1983 without an injury.
 
         
 
              Claimant has sustained a loss of earning capacity of 40 
 
         percent.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of December 12, 1983 of forty percent 
 
         (40%).
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for an additional one hundred seventy (170) weeks at the 
 

 
         
 
         
 
         
 
         McDONALD V. NASH FINCH COMPANY
 
         Page  10
 
         
 
         
 
         rate of three hundred ninety-nine and 55/100 dollars ($399.55).
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 
         500-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
         
 
         
 
         
 
                                        
 
                Signed and filed this 31st Day of December, 1986.
 
         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. J. Richard Johnson
 
         Attorney at Law
 
         P.O. Box 607
 
         1715 First Avenue SE
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Richard C. Garberson
 
         Attorney at Law
 
         P.O. Box 2107
 
         500 MNB Building
 
         Cedar Rapids, Iowa 52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803; 1806
 
                                                 Filed 12-31-86
 
                                                 Helen Jean Walleser
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         LARRY McDONALD,
 
         
 
              Claimant,
 
                                                 File No. 753275
 
         VS.
 
         
 
         NASH FINCH COMPANY,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FARMERS INSURANCE GROUP CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1803; 1806
 
         
 
              A truck driver with associate of arts degree and significant 
 
         work skills and experience in areas other than trucking and 
 
         manual labor awarded 40% industrial disability where employer 
 
         grocery wholesaler with 2000 member work force did not attempt to 
 
         retain or rehabilitate claimant following back injury.  
 
         Disability not apportioned between litigated injury and prior 
 
         injury where claimant had returned to prior job without 
 
         restrictions or actual loss of earnings following initial 
 
         injury.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA S. STANLEY,           :
 
                                          :
 
                 Claimant,                :      File No. 753405
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS CORPORATION,     :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendant appeals from an arbitration decision awarding 
 
            14 percent permanent partial disability benefits from 
 
            industrial purpose as a result of claimant's work injury and 
 
            awarding claimant benefits under Iowa Code section 86.13.  
 
            The record on appeal consists of the transcript of the 
 
            arbitration proceeding; claimant's exhibits 1 through 5 and 
 
            defendant's exhibits B, C, and D.  Both parties filed briefs 
 
            on appeal.
 
            
 
                                      issues
 
            
 
                 Defendant states the issues on appeal are:
 
            
 
                 I.  Whether the deputy erred in finding that 
 
                 Claimant has 14% permanent partial disability.
 
            
 
                 II. Whether the deputy erred in finding that the 
 
                 employer unreasonably failed to pay claimant 7.5 
 
                 weeks of compensation entitling her to 3.75 
 
                 additional weeks of compensation under 86.13.
 
            
 
                              Review of the evidence
 
            
 
                 The arbitration decision dated May 30, 1989 adequately 
 
            and accurately reflects the pertinent evidence and it will 
 
            not be reiterated herein.
 
            
 
                                  Applicable Law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on November 16, 
 
            1983 which arose out of and in the course of her 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 injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            16, 1983 is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id., at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 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).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 
            
 
                 Iowa Code Section 85.34(2) provides:
 
            
 
                 The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  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, 887 (Iowa 
 
            1983).
 
            
 
                 An injury may occur over a period of time.  For time 
 
            limitation purposes, the injury in such cases occurs when, 
 
            because of pain or physical disability, the claimant is 
 
            compelled to leave work.  McKeever Custom Cabinets v. Smith, 
 
            379 N.W.2d 368 (Iowa 1985).
 
            
 
                 Section 86.13, unnumbered paragraph four states:
 
            
 
                    If a delay in commencement or termination of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted on the issue of 
 
            the extent of claimant's permanent impairment.  Additional 
 
            analysis is relevant on the issue of imposition of penalty 
 
            pursuant to section 86.13.
 
            
 
                 On the issue of penalty under Iowa Code section 86.13, 
 
            a recent agency decision sets out the standard to evaluate 
 
            defendant's behavior.  The standard is whether defendant's 
 
            claim is fairly debatable.  Where defendant asserts a claim 
 
            that is fairly debatable, they do not act unreasonably in 
 
            the denial of payment.  Seydel v. U of I Physical Plant, 
 
            Appeal Decision, November 1, 1989.  The industrial 
 
            commissioner in Seydel held that defendants failed to show a 
 
            reasonable dispute concerning the issue of notice and a 
 
            penalty under section 86.13 was appropriate.
 
            
 
                 The medical evidence in this case is undisputed, there 
 
            is a casual connection between claimant's bilateral carpal 
 
            tunnel and cubital tunnel syndromes and claimant's work.  
 
            Both Drs. Walker and Eversmann agreed that claimant had some 
 
            permanent impairment as a result of the 1983 injury.  There 
 
            is no evidence in the record of this case to suggest that 
 
            the existence of such an impairment could not have been 
 
            discovered through the exercise of reasonable diligence or 
 
            reasonable investigation at the time claimant returned to 
 
            work in March 1984.  Carpal tunnel syndrome often leaves 
 
            some permanent impairment.  The most minimal amount of 
 
            effort would have been to simply ask Dr. Eversmann whether 
 
            or not any permanency had resulted and, if so, how much.  
 
            The record does not show that an investigation or inquiry of 
 
            that nature was made at the time claimant returned to work.  
 
            When an inquiry was finally made in 1985, Dr. Eversmann 
 
            reported that there was some permanent impairment.  There 
 
            was ample evidence of residual symptoms in this case to 
 
            alert the employer to the potential for the existence of 
 
            some permanent impairment.
 
            
 
                 On November 26, 1985, defendant's selected physician, 
 
            Dr. Eversmann, rated claimant's upper right extremity at 
 
            three percent permanent impairment on account of claimant's 
 
            injury.  Defendant's refusal to pay even the lowest 
 
            impairment rating given by defendant's selected physician is 
 
            unreasonable and under the facts of this particular case, a 
 
            penalty under section 86.13 is warranted.
 
            
 
                                findings of facts
 
            
 
                 1.  On November 16, 1983, claimant became disabled as a 
 
            result of injuries to her arms including carpal tunnel 
 
            syndrome and cubital tunnel syndrome.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 2.  The disabling condition resulted from cumulative 
 
            trauma to which claimant was subjected as a result of the 
 
            activities that she performed as a part of the duties of her 
 
            employment with Wilson Foods Corporation.  
 
            
 
                 3.  Following surgery for the conditions and other 
 
            treatment, claimant returned to work with defendant on March 
 
            19, 1984.
 
            
 
                 4.  The treatment that was provided did not completely 
 
            resolve the conditions and claimant was left with residual 
 
            permanent partial impairment of 15 percent of the upper 
 
            right extremity and 10 percent of the upper left extremity.
 
            
 
                 5.  Claimant incurred additional permanent impairment 
 
            affecting her arms subsequent to July 1, 1984 when Farmstead 
 
            Foods acquired the plant in which claimant was employed.
 
            
 
                 6.  Defendant unreasonably delayed and denied the 
 
            payment of weekly compensation to the extent that it failed 
 
            to make a prompt payment for three percent permanent 
 
            impairment of the claimant's upper right extremity.
 
            
 
                 7.  Defendant failed to conduct a reasonable 
 
            investigation of the claim by virtue of the fact that 
 
            claimant had residual symptoms and the defendant failed to 
 
            request an impairment rating from Dr. Eversmann at the time 
 
            of the end of claimant's healing period.
 
            
 
                                conclusions of law
 
            
 
                 Claimant proved entitlement to 14 percent permanent 
 
            partial disability under the provisions of Iowa Code section 
 
            85.34(2)(s), but her entitlement to compensation for 
 
            permanent partial disability is limited to 62 3/7 weeks by 
 
            virtue of claimant's failure to attend examinations 
 
            scheduled by the employer under the provisions of Iowa Code 
 
            section 85.39.
 
            
 
                 Defendant failed to pay claimant the 7.5 weeks of 
 
            compensation which represent the three percent impairment of 
 
            claimant's right arm that was rated by the defendant's 
 
            physician, Dr. Eversmann.  Accordingly, 3.75 additional 
 
            weeks of compensation shall be awarded to claimant under the 
 
            provisions of the fourth unnumbered paragraph of Iowa Code 
 
            section 86.13.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the defendant pay claimant sixty-two and three 
 
            sevenths (62 3/7) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of two hundred 
 
            thirty-three and 78/100 dollars ($233.78) per week payable 
 
            commencing March 19, 1984.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 That the entire amount thereof is past due and owing 
 
            and shall be paid to claimant in a lump sum together with 
 
            interest from the date each weekly payment came due pursuant 
 
            to Iowa Code section 85.30.
 
            
 
                 That defendant pay claimant three point seven five 
 
            (3.75) weeks of compensation at the stipulated rate of two 
 
            hundred thirty-three and 78/100 dollars ($233.78) per week 
 
            payable in lump sum of eight hundred seventy-six and 67/100 
 
            dollars ($876.67).
 
            
 
                 That defendant pay the cost of this proceeding 
 
            including the costs of transcription of the arbitration 
 
            hearing.
 
            
 
                 That defendant filed claim activity reports pursuant to 
 
            Division of Industrial Services Rule 343-3.1(2).
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Lowell H. Forte
 
            Attorney at Law
 
            200 2nd Avenue SW
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. Leslie E. Stokke
 
            Attorney at Law
 
            837 Higley Building
 
            Cedar Rapids, Iowa 52402
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 MNB Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406-2107
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 4000.2
 
                                          Filed August 23, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA S. STANLEY,           :
 
                                          :
 
                 Claimant,                :      File No. 753405
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :
 
            WILSON FOODS CORPORATION,     :      D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant proved entitlement to 14 percent permanent partial 
 
            impairment for industrial purposes on account of her 
 
            November 16, 1983 work injury.
 
            
 
            4000.2
 
            On the issue of penalty under Iowa Code section 86.13, the 
 
            standard is whether defendant's claim is fairly debatable.  
 
            Where defendant asserts a claim that is fairly debatable, 
 
            they do not act unreasonably in the denial of payment.  
 
            Seydel v. U of I Physical Plant, Appeal Decision, November 
 
            1, 1989.
 
            The medical evidence in this case clearly established a 
 
            casual connection between claimant's bilateral carpal tunnel 
 
            and claimant's work.  There is ample evidence of residual 
 
            symptoms in this case to alert the employer to the potential 
 
            for the existence of some permanent impairment.  On November 
 
            26, 1985, defendant's selected physician rated claimant's 
 
            upper right extremity at three percent permanent impairment.  
 
            Defendant's refusal to pay even the lowest impairment rating 
 
            given by defendant's selected physician is unreasonable and 
 
            under the facts of this particular case, a penalty under 
 
            section 86.13 is warranted.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         ROBERT H. KAUS,
 
         
 
              Claimant,
 
                                                 File No. 753461
 
         VS.
 
                                               A R B I T R A T I 0 N 
 
         V-T INDUSTRIES,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert H. 
 
         Kaus, claimant, against V-T Industries, Inc. (V-T), employer, and 
 
         Wausau Insurance Companies, insurance carrier, for benefits as a 
 
         result of an alleged injury on December 21, 1983.  A hearing was 
 
         held in Storm Lake, Iowa, on February 2, 1987 and the case was 
 
         submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Patricia 
 
         L. Kaus, Douglas E. Clausen, Gary Henry, and Bruce Lingle; 
 
         claimant's exhibits I through 13, except for exhibit 5 which was 
 
         not offered; and defendants' exhibits A through C. Both parties 
 
         filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $285.55; that claimant sustained a body as a 
 
         whole injury; that claimant received healing period benefits from 
 
         December 21, 1983 through June 6, 1985; that claimant received 
 
         permanency benefits from June 7, 1985 through November 4, 1985; 
 
         that claimant received healing period benefits from November 5, 
 
         1985 through February 17, 1986; that permanency benefits 
 
         recommenced on February 18, 1986; that the contested medical 
 
         bills are reasonable in amount; that the vocational 
 
         rehabilitation issue noted at time of prehearing was informally 
 
         resolved by the parties; and that claimant's injury of December 
 
         21, 1983 arose out of and in the course of his employment with 
 
         V-T.
 
         
 
                                    ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal relationship between 
 
         claimant's work-related injury of December 21, 1983 and his 
 
         asserted disability;
 
         
 

 
              2)  Nature and extent of disability; and
 
         
 
              3)  Whether claimant is entitled to benefits under Iowa Code 
 
         section 85.27 and, if so, the extent of those benefits.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 37 years old and that he 
 
         graduated from high school in 1967.  He has no additional formal 
 
         education.  He was in the military for two years and sustained no 
 
         injuries while in the military; he drove a truck in the 
 
         military.
 
         
 
              Claimant testified that prior to December 21, 1983 his 
 
         health was normal with no psychological or vision problems.  
 
         Prior to December 21, 1983, he drove a truck for V-T and did some 
 
         loading and unloading.  He generally did not work weekends.  He 
 
         took great pride in his work and his physical abilities prior to 
 
         December 21, 1983.  He started working for V-T on a part-time 
 
         basis in July 1982 and on full-time basis in November 1982.  He 
 
         characterized truck driving as his "only training."
 
         
 
              Claimant described the accident of December 21, 1983 which 
 
         was a head-on collision between two tractor trailers.  His truck 
 
         was loaded at the time of the accident.  After the accident, 
 
         claimant had no memory for five or six weeks.  Claimant then 
 
         described his physical injuries from the accident including his 
 
         internal injuries.  He sustained a head injury in the accident.  
 
         Claimant is not now able to do his prior work because of physical 
 
         restrictions or problems.  He has received treatment for 
 
         depression; he was not depressed prior to December 21, 1983.  He 
 
         currently takes medication for depression which he started in 
 
         December 1986.  Prior to starting this medication, he wanted to 
 
         walk away from his office job.  Claimant liked driving a truck 
 
         because it allowed him to be his own boss.  He now works in an 
 
         office at V-T as a transportation dispatcher; that is, he tells 
 
         the drivers where they are going each week.  He is physically 
 
         able to do this job, which requires some sitting and some 
 
         walking.  At one Point, he was harassed by a coworker (who was 
 
         not his immediate supervisor) but this problem has apparently 
 
         been resolved.   Prior to obtaining depression medication, 
 
         claimant could not keep his mind on what he was doing at work.  
 
         After the medication this problem has lessened but he still has 
 
         his ups and downs.  He believes that things go too fast in his 
 
         mind.  If he forgets to take his medication irritability results, 
 
         his depression comes back, and his concentration is poor. on at 
 
         least two occasions he has threatened suicide.
 
         
 
              Claimant testified that he tried golfing and walking but 
 
         this did not "work out at all" because it was hard on his legs 
 
         and one of his hips.  He doesn't "walk too good on uneven 
 
         ground." He has trouble with his feet swelling and his right hip 
 
         aching.
 
         
 
              On cross-examination, claimant stated that he grossed 
 
         $500-$600 per week (minus expenses for meals and such on the 
 
         road) prior to the accident of December 21, 1983.  His weekly 
 
         gross is now less than it was prior to the accident of December 
 
         21, 1983.  He currently does some record keeping for V-T.
 
         
 
              Claimant testified that he has a doctor's appointment in 
 
         March or April 1987.  He "may need a new right knee."
 
         
 
              Claimant stated that he has sent loads to the wrong spots 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   3
 
         
 
         
 
         because on occasion "he is at the job in body but not in mind."
 
         
 
              Patricia L. Kaus testified that she has been married to 
 
         claimant for about fifteen years.  Prior to the accident of 
 
         December 21, 1983, he was a "humorous guy who taught her how to 
 
         laugh." He had many friends and was athletic.  After the 
 
         accident, claimant has bouts of depression.  She then described 
 
         his injuries sustained in the accident.  He has trouble getting 
 
         in and out of bed and has trouble driving a vehicle.  In the 
 
         spring of 1985, claimant stated "life would be better without 
 
         him."  This incident was triggered by a confrontation with a 
 
         coworker and claimant was not intoxicated at the time.  A second 
 
         suicide incident occurred in the fall of 1985.
 
         
 
              Ms. Kaus testified that claimant is exhausted and tired when 
 
         he comes home from work.  He "fights with his mind." The 
 
         medication has "helped him think and to get things in the correct 
 
         perspective." The medication has made his depression less deep 
 
         but the "hills and valleys are still there." Claimant's income 
 
         decreased after the accident.  He is trying hard to do his 
 
         dispatcher job.
 
         
 
              On cross-examination, Ms. Kaus acknowledged that claimant 
 
         had consumed some alcohol prior to the first suicide incident.  
 
         The second suicide incident involved no alcohol.
 
         
 
              Douglas E. Clausen testified that he is a vice president for 
 
         V-T and is the secretary treasurer for V-T Industries.    He 
 
         described claimant's current job as "coordinating mileage  and 
 
         weights of equipment." V-T has eight semi-tractor trailers and 
 
         often uses contractual carriers.  Claimant is paid  $1,574.99 
 
         gross per month currently and receives quarterly incentives.  The 
 
         incentives are "formulated based on payroll to sales.  At the 
 
         time of the accident in December 1983, claimant was being paid 
 
         about $23,600 minus expenses for meals and such.  V-T paid for 
 
         the fuel.  In 1983, claimant was paid $.18 base rate per mile, 
 
         which was his gross pay.
 
         
 
              Clausen stated his opinion that claimant is doing a 
 
         satisfactory job currently as transportation coordinator.  
 
         Claimant came under his supervision about two weeks prior to the 
 
         hearing of February 2, 1987.
 
         
 
              Gary Henry testified that as purchasing manager for V-T he 
 
         has supervised claimant.  He stopped supervising claimant about 
 
         two weeks prior to the hearing held on February 2, 1987.  He 
 
         testified that claimant has done a good job after the accident 
 
         and t@at his attendance has been regular.  He had 'no more 
 
         problems with claimant than with any other employee." Henry 
 
         thought claimant had handled himself well before he started using 
 
         the depression medication.
 
         
 
              Bruce Lingle testified that he is claimant's friend.  Lingle 
 
         is not an employee of V-T but has had V-T loads in a truck driven 
 
         by him.  Lingle described claimant prior to the accident as the 
 
         "life of the party." Claimant is now short-tempered and serious, 
 
         and after the accident is less interested in his work.  Lingle 
 
         described the second suicide incident that occurred in the fall 
 
         of 1985.  Claimant told Lingle that it was not fair that Lingle 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   4
 
         
 
         
 
         could drive a truck but that he could not.  Claimant thought it 
 
         would be easier not to be around at all.
 
         
 
              Exhibit 3, page 2 (dated March 29, 1985), is a record from 
 
         the University of Iowa Hospitals and Clinics and reads in part:
 
         
 
              Mr. Kaus is status post a truck accident in which he 
 
              sustained multiple fractures in his right lower 
 
              extremity including femoral neck fracture and knee 
 
              fractures.  He currently has minimal pain in his lower 
 
              extremity but has some problems with range of motion.
 
         
 
         
 
         
 
              RADIOGRAPHIC EXAMINATION: Radiographs obtained today 
 
              demonstrate healing of the left femoral neck, right 
 
              femoral neck fracture and the right tibial plateau 
 
              fractures are healed nicely.  He has the above 
 
              limitations in his motion and strength.  He has 
 
              improved in terms of his peroneal palsy.
 
         
 
              PLAN: Continue activities as tolerated.  He will return 
 
              for admission in November for hardware removal from his 
 
              hips and knees.
 
         
 
              Exhibit 3, page 58, reads in part: "He is to undergo 
 
         colostomy closure on September 7, 1984." Exhibit 3, page 64 
 
         (dated April 26, 1985), is authored by Albert E. Cram, M.D., and 
 
         reads in part: "I would limit his lifting activities to 40 lb or 
 
         less at any given time .... I would estimate it at 25% of the 
 
         whole man." Exhibit 3, page 66, reads in part: "On January 12, 
 
         1984, we did a formal tracheostomy to replace the endotracheal 
 
         tube." Exhibit 3, page 70, reads in part: "His renul failure has 
 
         cleared after a long period of requiring dialysis.  His liver 
 
         function was improved markedly although it is still not normal."
 
         
 
              Exhibit 3, page 75, reads in part:
 
         
 
              Mr. Kaus is now eight and half months status post a 
 
              serious motor vehicle accident in which he suffered 
 
              multiple orthopaedic injuries including a right tibial 
 
              plateau fracture, right femoral intertrochateric 
 
              fracture and a right femoral midshaft fracture.  She 
 
              [sic] also suffered a left patellar fracture and a left 
 
              fibular fracture.  At the time of injury, it was also 
 
              noted that he had a peroneal nerve injury.  On 2-27-84, 
 
              he refractured the femoral mishaft fracture and 
 
              subsequently had removal of his intermedullary rod and 
 
              a trochanteric osteotomy with internal fixation of his 
 
              right intertrochanteric fracture and bone grafting at 
 
              the distal fracture of his femur.  He was placed in 
 
              traction for two months.  On March 27, he was placed in 
 
              a right leg cast brace with the addition of a hip hinge 
 
              and waist band and at his last clinic visit on 5-30-84, 
 
              he was taken out of this case.  His x-rays show good 
 
              healing callus at that time and it was recommended that 
 
              he could begin crutch ambulation with weightbearing as 
 
              tolerated on his right side.  He was also begun on an 
 
              ankle foot orthosis for his persistent right peroneal 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   5
 
         
 
         
 
              nerve palsy.  At this clinic visit, he states that he 
 
              has been able to full weightbear on his right side and 
 
              only uses his cane on occasions.  He also claims new 
 
              onset of dorsiflexion of his right foot for the last 
 
              eight weeks.  He states that his other injuries are not 
 
              giving any particular difficulty at this time and that 
 
              he is doing quite well at present.  He is presently 
 
              receiving workmen's [sic] compensation since the time 
 
              of his injury.
 
         
 
              Exhibit 3, page 86 (dated February 6, 1986), reads in part: 
 
         "Mr Kaus is s/p removal of right tibia femur and left patella in 
 
         November."
 
         
 
              Exhibit 3, page 102 (dated June 27, 1986), is authored by 
 
         Dr. James Weinstein and reads in part: "The impression is that 
 
         Mr. Kaus' impairment rating is estimated to be 35-40 percent."
 
         
 
              Exhibit 4, page 3 (dated in June 1986), is authored by Nils 
 
         Varney, Ph.D., and reads in part: "IMPRESSION: (1) Organic 
 
         affective disorder with occasional suicidal intent. (2) Multiple 
 
         psychosocial deficits of a type typically seen in patients with 
 
         damage to the frontal lobes. (3) Possible partial complex 
 
         seizures.  All of the above are referable to his MVA and its 
 
         medical sequelae."
 
         
 
              Exhibit 6 is a medical summary from date of accident on 
 
         December 21, 1983 until December 5, 1986.
 
         
 
              Exhibit C is the deposition of Todd F. Hines, Ph.D, taken on 
 
         January 28, 1987.  Dr. Hines is a clinical psychologist and 
 
         practices primarily with the-psychological aspects of illness and 
 
         injury.  He has seen claimant on three occasions.  Deposition 
 
         exhibit 1 is a report authored by him.  On pages 13-14 of his 
 
         deposition, Dr. Hines stated:
 
         
 
              A.  Well, the conclusions that I made in general from 
 
              that battery of tests were that I could find no 
 
              specific evidence of organic brain damage.  He was 
 
              functioning at basically an average level of 
 
              intelligence.  His memory functions were not only well 
 
              within the normal range but in some ways better than 
 
              the normal range.
 
         
 
                   He was able to concentrate adequately.  His 
 
              attention span was good.  His response and reaction 
 
              times were good.
 
         
 
                   There was no problem with spatial orientation; in 
 
              other words, his ability to see and understand and 
 
              place objects in relation to one another.  And that's 
 
              something that is typically disrupted if there is 
 
              organic brain damage, and he did not show that kind of 
 
              disruption.
 
         
 
                   He did, however, show, from my testing, a great 
 
              deal of depression and anxiety.  It was a great deal of 
 
              emotional disruption, even though I could find no 
 
              evidence for organic brain damage.
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   6
 
         
 
         
 
         
 
                   As I looked at the content of the testing and the 
 
              content of my interview with him and with his wife, the 
 
              conclusion that I drew from the whole package of data 
 
              was that there were some environmental stressors and 
 
              there were some stressors that were related to who he 
 
              had been before the accident and who he found himself 
 
              to be now.
 
         
 
                   There were some stressors of that type that 
 
              certainly could, in my opinion, easily give rise to the 
 
              depression and the anxiety that he was demonstrating.
 
         
 
                   So my conclusion was I could find no data support 
 
              for organic brain damage.   I could ' find a lot of 
 
              support for a level of emotional turmoil that was very 
 
              significant and very disruptive, and that would give 
 
              rise to the kinds of symptoms that he had described.
 
         
 
              On page 16, Dr. Hines linked alcohol with claimant's suicide 
 
         incidents.  On page 17, he stated his opinion that the suicidal 
 
         episodes were not caused by an organic problem.  On page 19, Dr. 
 
         Hines stated claimant needs to work and that there is no 
 
         psychological basis for him to not be working.  On page 21, he 
 
         stated: "I think he is very much capable of working and needs to 
 
         be working." On page 21, he stated that there-is no evidence of 
 
         organic-'affective disorder, but that claimant has "affective 
 
         disorder turmoil ... from other stressors..." on page 22, he 
 
         characterized these stressors as work-related and 
 
         nonwork-related.  On page 22, he stated his opinion that claimant 
 
         is not suicidal and does not have a psychological disability or 
 
         impairment.  On page 23, he stated that claimant does not need 
 
         psychological treatment.
 
         
 
              On page 25, Dr. Hines stated: "[Aln organic brain syndrome 
 
         essentially says there is some tissue damage, there is some 
 
         damage in the structure of the central nervous system...."  On 
 
         pages 28-29, he defined post-traumatic stress disorder.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of December 21, 
 
         1983 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. 0. 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).
 
         
 
              The fighting issue in this case is the nature and extent of 
 
         disability.  Claimant carried his burden of proof on the issue of 
 
         causal connection between the accident of December 21, 1983 and 
 
         the physical injuries described in the summary of the evidence 
 
         section of this decision.  However, I am not convinced that the 
 
         accident of December 21, 1983 caused any "organic brain damage" 
 
         as that term is defined by Dr. Todd Hines.  The extent to which 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   7
 
         
 
         
 
         the accident of December 21, 1983 caused claimant to have 
 
         psychological problems will be discussed in the next division.
 
         
 
              II.  As claimant has an impairment to the body as a whole, 
 
         an industrial disability has been sustained.  Industrial 
 
         disability was defined in Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is 
 
         therefore plain that the legislature intended the term 
 
         'disability' to mean 'industrial disability' or loss of earning 
 
         capacity and not a mere 'functional disability' to be computed in 
 
         the terms of percentages of the total physical and mental ability 
 
         of a normal man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  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 later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   8
 
         
 
         
 
         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 
 
         disability 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 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 disability.  
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              This is a body as a whole case and, therefore, physical 
 
         impairment does not equate with disability (loss of earning 
 
         capacity).
 
         
 
              The Iowa Supreme Court stated in Diederich v. Tri-City 
 
         Railway Co., 219 Iowa 587, 258 N.W. 899 (1935):
 
         
 
                   The principal and the most important question in 
 
              the case at bar is to determine the meaning of 
 
              "disability" as used in the Iowa Compensation Law....
 
         
 
        
 
         
 
                   What is "permanent total disability"? Does this 
 
              clause refer to "functional disability" or to 
 
              industrial disability"?
 
         
 
                   For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on 
 
              a gainful occupation--inability to earn wages.  By 
 
              "functional disability" we shall refer to the physical 
 
              movements which a normal human being can perform.
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
                   It is obvious that "disability" as here used 
 
              cannot refer to mere "functional disability.......
 
         
 
                   [Tlhe legislature intended the term "disability" 
 
              to mean "industrial disability" or loss of earning 
 
              capacity and not a mere "functional disability" to be 
 
              computed in terms of percentages of the total physical 
 
              and mental ability of a normal man.
 
         
 
         
 
         
 
                   ... [Tlhe Compensation Law was passed for the 
 
              purpose of compensating the working man when injured.  
 
              The loss which this claimant suffered due to the injury 
 
              which he received while in the employ of the company is 
 
              the inability to carry on the work he was doing prior 
 
              to the time of the injury, or any work which he could 
 
              perform.  This man at fifty-nine years of age, after 
 
              thirty years as a street car motorman, with little 
 
              education, cannot find or hold a position that would 
 
              not require some manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work.  
 
              To say that he might become a stenographer or a lawyer 
 
              or a clerk or a bookkeeper is to suppose the 
 
              impossible, for a fifty-nine-year old man, with no 
 
              education, is not capable of securing or filling any 
 
              such position. His disability may be only a twenty-five 
 
              or thirty percent disability compared with the one 
 
              hundred percent perfect man, but, from the standpoint 
 
              of his ability to go back to work to earn a living for 
 
              himself and his family, his disability is a total 
 
              disability. (Emphasis added.)
 
         
 
              On page 3 of his brief, claimant stated: "The combination of 
 
         the injuries to his lower extremities, as well as his frontal 
 
         lobe brain damage, complex seizures, and depression result in 
 
         Robert Kaus being totally and permanently disabled."
 
         
 
              Claimant stated on page 5 of his brief:
 
         
 
              Additionally, no one disputes the gravity of the 
 
              injuries Robert Kaus has sustained in his accident.  
 
              The carrier offers no evidence other than the doctors 
 
              treating Robert Kaus and in particular the Deputy's 
 
              attention is called to Drs.  Weinstein and Cram.  
 
              Further, not even Dr. Hines, Defendant's clinical 
 
              psychologist, does not say Robert Kaus has not 
 
              sustained frontal lobe injuries or partial complex 
 
              seizures, instead, he merely opines that further 
 
              treatment will assist Robert Kaus in effectively 
 
              controlling his depression and complex seizures.  This 
 
              however does not take away the fact that the injury is 
 
              permanent in nature and will continuing and constantly 
 
              affect Robert Kaus' ability to earn a living.  When you 
 
              combine these factors with the restriction on Robert 
 
              Kaus' ability to lift, walk, function in a work 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page  10
 
         
 
         
 
              atmosphere, the evidence is overwhelming that Robert 
 
              Kaus is totally and permanently disabled.
 
         
 
              The above quotes from claimant's brief demonstrate that he 
 
         perhaps misunderstands the law in this jurisdiction.  Physical 
 
         impairment does not equal with industrial disability in Iowa.  
 
         Claimant is currently employed and is not permanently and totally 
 
         disabled at this point in time.
 
         
 
              Claimant acknowledges this on pages 8-9 of his brief:
 
         
 
              At the submission of this case, the Deputy asked the 
 
              parties their belief as to the industrial disability 
 
              sustained by Robert Kaus as a result of his accident on 
 
              December 21, 1983. It is the opinion of the Claimant 
 
              that so long as he is employed by V-T Industries and 
 
              can be excused for further treatment of depression or 
 
              when his legs or mind is affecting his ability to cope 
 
              and Maintain any assemblance of routine, Robert Kaus' 
 
              disability is 75%.  Assuming that he is not able to be 
 
              fur@her treated for his depression or in the 
 
              alternative, is terminated from his employment at V-T 
 
              Industries, Claimant believes his disability from his 
 
              employment at V-T Industries would then ripen into 100% 
 
              total permanent indisability.
 
         
 
              Claimant did not plead the odd-lot doctrine in this case, 
 
         nor was it noted as an issue at time of prehearing, but a recent 
 
         appeal decision decided on November 25, 1985 and entitled Walter 
 
         H. Farrant, Jr., v. Iowa Beef Processors, Inc. (Nos. 45 703477) 
 
         is instructive in this case.
 
         
 
              The commissioner stated on page 1 of this decision:
 
         
 
                   The evaluation of the evidence and application of 
 
              the law thereto in the review-reopening decision is 
 
              appropriate and correct.  The recent Iowa supreme court 
 
              decision in Guyton v. Irvinq Jensen Company, __N.W.2d__ 
 
              (Iowa 1985), is not on point as the claimant returned 
 
              to regular employment subsequent to his injury.  He has 
 
              not terminated from employment with defendant for 
 
              reasons related to his injury.
 
         
 
                   It is further noted that a new review-reopening 
 
              petition has been filed and is pending for an alleged 
 
              deterioration of his condition since the proceeding sub 
 
              judice. (Emphasis added.)
 
         
 
              Claimant herein returned to "regular employment subsequent 
 
         to his injury."  In Iowa, the fact that he did not return to the 
 
         same type of work he was performing on the date of injury does 
 
         not entitle him to permanent total disability.  See Henderson 
 
         v.Iles, 248 Iowa 847, 856, 82 N.W.2d 731, 737 (1957).
 
         
 
              In another recent appeal decision filed on February 20, 1987 
 
         entitled Thomas A. Stewart v. Crouse Cartage Company and Liberty 
 
         Mutual Insurance Company (No. 738644), the commissioner stated on 
 
         page 2-3:
 
         
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page  11
 
         
 
         
 
                   Under current conditions taking into account 
 
              claimant's age, work experience, education and loss of 
 
              earning capacity claimant's industrial disability is 50 
 
              percent.  Defendants argue that if claimant finishes 
 
              college and chooses business as a career, there are a 
 
              multitude of career choices and the opportunities are 
 
              limitless.  However, it is claimant's present earning 
 
              capacity which is relevant to determine claimant's 
 
              industrial disability.  At this point in time it is 
 
              pure speculation to say what the earning potential of 
 
              claimant would be if he indeed does complete college 
 
              particularly considering his age. (Emphasis supplied).
 
         
 
         Claimant herein is asking the hearing deputy to speculate as to 
 
         his earning capacity if he separates from his employment with 
 
         V-T.  On page 12 of defendants' brief, the following appears:
 
         
 
                   Defendants maintain that if Dr. Todd Hines is not 
 
              correct, and if claimant's work record for over a year 
 
              and a half is not evidence of earning capacity, and if 
 
              circumstances change from what we now know them to be, 
 
              claimant has a remedy! That being review and reopening 
 
              of his claim.  Should claimant's earning capacity 
 
              change, he is protected by that right.  Blacksmith v. 
 
              All American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              I am unconvinced that claimant is unable to do his 
 
         transportation coordinator job because of psychological 
 
         difficulties.  I also believe he can physically handle the job at 
 
         the present time.  In this regard, defendants stated on page 8:
 
         
 
                   At the time of hearing, the Deputy posed the 
 
              question as to whether or not he was bound by an 
 
              objective or subjective standard.  In other words, was 
 
              it reasonable to expect the claimant to work where he 
 
              felt he should not be.  Defendants have tried to find 
 
              an Iowa case specifically on point, and have not been 
 
              able to do so.  Defendants contend that the standard is 
 
              neither totally subjective nor totally objective.  
 
              Rather, the test, as in so many areas of the law, is 
 
              one of reasonability.
 
         
 
         I agree that a standard of reasonability should apply in this 
 
         case and, as stated above, it is determined that claimant can 
 
         physically and psychologically do his transportation coordinator 
 
         job at V-T at this time.  If a change of condition (physical or 
 
         otherwise) occurs in the future, claimant can file a 
 
         review-reopening petition.
 
         
 
              Claimant in this case has demonstrated a loss of actual 
 
         earnings which is only one factor in assessing industrial 
 
         disability.  Taking all appropriate factors into account, it is 
 
         concluded that claimant's industrial disability at this time is 
 
         40 percent.
 
         
 
              III.  Claimant failed to prove by a preponderance of the 
 
         evidence that defendants authorized the medical treatment at 
 
         issue.  Defendants in this case had the right to control the 
 
         course of medical treatment.
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page  12
 
         
 
         
 
         
 
         
 
                                FINDINGS OF FACT
 
         
 
              1.  Claimant is 37 years old.
 
         
 
              2.  Claimant graduated from high school in 1967 and has no 
 
         other formal education.
 
         
 
              3.  Claimant engaged in football, track, and wrestling in 
 
         his high school and received letters as a result.
 
         
 
              4.  Claimant did not have any physical or psychological 
 
         problems prior to December 21, 1983.
 
         
 
              5.  Prior to December 21, 1983, claimant was employed by V-T 
 
         as an over-the-road trucker doing some long hauls and some short 
 
         hauls.
 
         
 
              6.  On December 21, 1983, claimant was involved in a truck 
 
         accident with another truck and sustained massive physical 
 
         injuries as a result.
 
         
 
              7.  Claimant is currently employed at V-T as a 
 
         transportation coordinator and is currently physically and 
 
         psychologically able to do this job.
 
         
 
              8.  Claimant earns less as a transportation coordinator as 
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page  13
 
         
 
         
 
         compared to his prior V-T employment as an over-the-road truck 
 
         driver.
 
         
 
              9.  Claimant started working for V-T on a part-time basis in 
 
         July 1982; he started working on a full-time basis in November 
 
         1982.
 
         
 
              10.  Claimant's industrial disability at this time is forty 
 
         percent (40%).
 
         
 
              11.  Claimant's stipulated rate is $285.55.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  Claimant has established the requisite causal connection 
 
         by a preponderance of the evidence.
 
         
 
              2.  Claimant has established entitlement to two hundred 
 
         (200) weeks of permanent partial disability benefits recommencing 
 
         on February 18, 1986 at the stipulated rate of two hundred 
 
         eighty-five and 55/100 dollars ($285.55).
 
         
 
              3.  Claimant failed to establish by a preponderance of the 
 
         evidence that the contested medical treatment was authorized.
 
         
 
                                  ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay the weekly disability benefits described 
 
         above.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2), as requested by the agency.
 
                                        
 
         
 
                  Signed and filed this 18th day of March, 1987.
 
         
 
         
 
         
 
         
 
                                            T.J. McSWEENEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Colin J. McCullough
 

 
         
 
         
 
         
 
         KAUS V. V-T INDUSTRIES
 
         Page  14
 
         
 
         
 
         Attorney at Law
 
         701 W. Main Street
 
         Sac City, Iowa 50583
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         1040 Fifth Avenue
 
         Des Moines, Iowa 50314
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1803
 
                                                 Filed 3-18-87
 
                                                 T. J. McSweeney
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ROBERT H. KAUS,
 
         
 
              Claimant,
 
                                                 File No. 753461
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         V-T INDUSTRIES,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.40; 1803
 
         
 
              Held in arbitration that claimant established entitlement to 
 
         200 weeks of permanent partial disability based on an industrial 
 
         loss of forty percent (40%).  Claimant sustained massive physical 
 
         injuries in a work-related truck accident.  He is no longer able 
 
         to drive a truck and the defendants therefore created an office 
 
         job for him.
 
         
 
              Claimant asserted at hearing that he is physically and also 
 
         psychologically unable to do his office job.  A finding of fact 
 
         was made that claimant is able to do his current job.  Claimant's 
 
         attorney argues that he is entitled to permanent total disability 
 
         benefits based solely on his serious and extensive physical 
 
         problems.  This contention was rejected as contrary to the clear 
 
         law of this jurisdiction.