Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD L. HOLLAND,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 757549
 
            ASSOCIATED GROCERS OF IOWA,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on January 10, 1984.  Claimant cross-appeals.  
 
            The record on appeal consists of the transcript of the 
 
            arbitration proceeding and joint exhibits 1 through 17.  
 
            Both parties filed briefs on appeal.  Defendants filed a 
 
            reply brief. 
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issue on appeal:  "Did 
 
            the deputy err in determining that the claimant was entitled 
 
            to a 20% industrial disability rating despite claimant's 
 
            continued employment in his normal work duties at his normal 
 
            rate of pay?"
 
            
 
                 Claimant states the following issues on cross-appeal:
 
            
 
                    Did the Deputy Industrial Commissioner err in 
 
                 determining that the Claimant was entitled to only 
 
                 a 20 percent industrial disability rating despite 
 
                 the fact that the Claimant lost substantial 
 
                 earning capacity...?
 
            
 
                    Whether or not the 85.35 settlement entered 
 
                 into between the Claimant and the FAIRCO-AGI and 
 
                 National Union Fire Insurance Company precluded 
 
                 any consideration of the Claimant's employment 
 
                 situation after the Claimant's injury of April 23, 
 
                 1985?
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein. 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.     
 
            
 
                                     ANALYSIS
 
            
 
                 Although not listed as a formal issue on appeal, 
 
            defendants urge that claimant is prohibited from listing any 
 
            issues on cross-appeal as the claimant's cross-appeal was 
 
            not timely filed.  However, a review of the file indicates 
 
            that claimant's cross-appeal was timely filed, although the 
 
            cross-appeal contained an error in the caption.  It is clear 
 
            that the parties were not mislead by the error as to who the 
 
            parties in interest were.  The Iowa Supreme Court has held 
 
            that allowing amendment to pleadings is the rule; denial is 
 
            the exception.  Galbraith v. George, 217 N.W.2d 598 (Iowa 
 
            1974).  Considerable discretion is allowed in determining 
 
            whether or not leave to amend should be granted. Ackerman v. 
 
            Lauver, 242 N.W.2d 342 (Iowa 1976).  Claimant's cross-appeal 
 
            issues are considered in this decision.
 
            
 
                 Defendants argue on appeal that the award of 20 percent 
 
            industrial disability to claimant as a result of his January 
 
            10, 1984 work injury is improper.  Defendants urge that 
 
            claimant suffered no disability following his January 10, 
 
            1984 injury, and point to the fact that claimant was able to 
 
            return to work without restrictions, and did not suffer any 
 
            wage loss.  Defendants correctly point out that a rating of 
 
            impairment does not necessarily require a finding of 
 
            industrial disability.  However, the uncontroverted medical 
 
            evidence establishes that claimant did have a five percent 
 
            permanent partial impairment following his January 10, 1984 
 
            injury.  
 
            
 
                 It is entirely possible for a claimant to suffer a loss 
 
            of earning capacity and yet continue to work at the same job 
 
            and not experience a loss of wages.  In this case claimant's 
 
            five percent impairment following his January 10, 1984 
 
            injury, coupled with his work history involving physical 
 
            labor, indicates some loss of earning capacity. 
 
            
 
                 Claimant argues that his second injury on April 23, 
 
            1985 was caused by his increased susceptibility to injury 
 
            from the January 10, 1984 injury.  Claimant cannot argue 
 
            that his January 10, 1984 injury has contributed to his 
 
            April 23, 1985 injury.  Claimant has entered into a special 
 
            case settlement for the April 23, 1985 injury.  By entering 
 
            into such a settlement, claimant has acknowledged that the 
 
            April 23, 1985 injury did not arise out of and in the course 
 
            of his employment.  If claimant feels that his April 23, 
 
            1985 injury was caused by his January 10, 1984 injury, or 
 
            that he was more susceptible to the second injury because of 
 
            the first, then claimant should not have entered into a 
 
            special case settlement of that injury under section 85.35.  
 
            The settlement under that section constitutes a 
 
            determination that the injury did not arise out of or in the 
 
            course of the employment.  Claimant cannot now seek a 
 
            determination that the April 23, 1985 injury was caused by 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            an earlier work injury. 
 
            
 
                 Claimant asserts that his inability to perform the work 
 
            of a truck driver, which necessitated a job change to a 
 
            supervisory position paying much less, was the result of the 
 
            earlier injury, even though claimant did not change jobs 
 
            until after the second injury.  Claimant relies on a 
 
            statement by his physician that claimant could return to 
 
            work, but that if he was unable to continue driving truck, 
 
            he should consider a supervisory position.  
 
            
 
                 Claimant was able to return to work after the first 
 
            injury, and to perform his duties.  Claimant worked as a 
 
            truck driver for 10 months, then was off work again after 
 
            the April 23, 1985 incident.  Claimant then worked as a 
 
            truck driver for another 12 months, then decided to change 
 
            jobs and suffer a wage loss.  The April 23, 1985 injury has 
 
            been compensated.  Although the possibility that claimant 
 
            would not be able to continue driving a truck apparently 
 
            existed prior to the second injury, since claimant's doctor 
 
            mentioned that contingency, that falls far short of a 
 
            showing by claimant that he was unable to perform his truck 
 
            driving duties after the first injury, especially where the 
 
            record shows he did in fact perform those duties up until 
 
            the second injury.  Claimant's appeal argument that the 
 
            restrictions placed on him after the second injury should 
 
            have been placed on him after the first injury are 
 
            contradicted by medical evidence that they were not imposed 
 
            until after the second injury. Claimant asserts that his 
 
            original injury on January 10, 1984 has caused at least part 
 
            of his present disability, and that he was able to work 
 
            again as a truck driver following the first injury in part 
 
            because he was trying to preserve his pension.  This was 
 
            noted by at least one of claimant's physicians.  
 
            Nevertheless, claimant did not feel compelled to change jobs 
 
            until a full year after his second injury which was one year 
 
            and ten months after his first injury.  It is also noted 
 
            that claimant received a rating of permanent physical 
 
            impairment of 15 percent of the body as a whole as a result 
 
            of the April 23, 1985 injury indicating that the second 
 
            injury contributed a greater degree of impairment.
 
            
 
                 The settlement in regard to the April 23, 1985 injury 
 
            did reserve to claimant the right to pursue compensation for 
 
            any injury prior to April 23, 1985.  Claimant has shown, at 
 
            most, only the testimony of physicians that claimant's 
 
            return to truck driving and unloading after the January 10, 
 
            1984 injury, was with some reservations.  Claimant was not 
 
            restricted from returning to this work.  Although one of 
 
            claimant's doctors was aware that claimant was returning to 
 
            this work in part to preserve his pension, no restriction 
 
            against a return to truck driving or unloading was imposed.  
 
            From the medical evidence in the record, claimant was 
 
            capable of performing the duties of his truck driving and 
 
            unloading job after his January 10, 1984 injury.  His 
 
            decision to abandon this job occurred a full year after his 
 
            second injury and the record is insufficient to establish 
 
            which injury played a greater role in producing his present 
 
            disability.  However, clearly claimant's second injury 
 
            resulted in greater impairment.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 In light of claimant's age of 49, his high school 
 
            education, two impairment ratings of five percent of the 
 
            body as a whole, his work history, his continued earnings 
 
            and ability to perform his job after the January 10, 1984 
 
            injury, his motivation, and all other appropriate factors 
 
            for determining industrial disability, it is determined that 
 
            claimant has an industrial disability of 20 percent as a 
 
            result of his January 10, 1984 injury.
 
            
 
                 Claimant's second issue on appeal is whether he is 
 
            prohibited by the 85.35 settlement from establishing a loss 
 
            of earning capacity subsequent to the April 23, 1985 injury.  
 
            Claimant is not prohibited from establishing any effects on 
 
            his earning capacity subsequent to the April 23, 1985 injury 
 
            stemming from the January 10, 1984 injury or another 
 
            incident.  Claimant is only precluded from seeking a further 
 
            award based on the April 23, 1985 injury.  Claimant would be 
 
            entitled to show any effects of his January 10, 1984 injury 
 
            that manifested themselves after the April 23, 1985 injury.  
 
            However, as noted above, claimant has failed to show that 
 
            his increase in disability after April 23, 1985 was caused 
 
            by the January 10, 1984 injury. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  On January 10, 1984 claimant suffered a disc injury 
 
            to the L4-5 level of his spine which arose out of and in the 
 
            course of his employment with AGI.  This injury compelled 
 
            claimant to undergo a Chymopapain injection which collapsed 
 
            the L4-5 disc and relieved pressure on adjacent nerves which 
 
            was causing severe pain.
 
            
 
                 2.  The work injury of January 10, 1984 was a cause of 
 
            a five percent permanent partial impairment to the body as a 
 
            whole.  
 
            
 
                 3.  On April 23, 1985, while unloading freezer boxes, 
 
            claimant injured his back again at the L5-S1 level of his 
 
            spine requiring fusion surgery of the vertebra at that 
 
            level.  Claimant suffered an additional 15 percent permanent 
 
            partial impairment from this second injury.
 
            
 
                 4.  The work injury of January 10, 1984 and the 
 
            resulting permanent partial impairment was a cause of a 20 
 
            percent loss of earning capacity independent of the April 
 
            23, 1985 work injury.
 
            
 
                                CONCLUSION OF LAW
 
            
 
                 Claimant has an industrial disability of 20 percent as 
 
            a result of his January 10, 1984 injury.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendants shall pay to claimant one hundred (100) 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred one and 69/100 dollars ($301.69) per week 
 
            from June 18, 1984.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            permanent partial disability benefits previously paid.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action 
 
            including the transcription of the hearing proceeding 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Jim Lawyer
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. John E. Swanson
 
            Attorney at Law
 
            8th Floor Fleming Building
 
            Des Moines, Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3302 - 1108.50
 
            Filed February 26, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD L. HOLLAND,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 757549
 
            ASSOCIATED GROCERS OF IOWA,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3302 - 1108.50
 
            Claimant had a back injury, returned to work as a truck 
 
            driver, then had a second back injury ten months later, and 
 
            again returned to work as a truck driver.  A year after the 
 
            second injury, claimant felt compelled to leave his truck 
 
            driving job and take a supervisory position which resulted 
 
            in a substantial loss of earnings.  Claimant settled the 
 
            second injury under section 85.35.  Claimant received a 
 
            rating of impairment of five percent following the first 
 
            injury, and another 15 percent following the second injury.  
 
            Claimant then sought compensation for the first injury, and 
 
            was awarded 20 percent industrial disability by the deputy.  
 
            Claimant argued on appeal that the job transfer was caused 
 
            by the first injury, or in the alternative that the second 
 
            injury was caused by the first, which in turn caused the job 
 
            transfer.  Held that claimant had failed to show that his 
 
            later job transfer was caused by the first injury, and 
 
            affirmed deputy's award of 20 percent industrial disability 
 
            as a result of the first injury.  Also held that claimant 
 
            could not rely on second injury to connect the job transfer 
 
            with the first injury, since by settling that injury under 
 
            85.35 claimant has acknowledged that it did not arise out of 
 
            and in the course of the employment, and claimant cannot now 
 
            be heard to argue to the contrary.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DONALD L. HOLLAND,
 
         
 
               Claimant,
 
         
 
         vs.                                   File No. 757549
 
         
 
         ASSOCIATED GROCERS OF IOWA,        A R B I T R A T I O N
 
         
 
              Employer,                        D E C I S I O N
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Donald L. 
 
         Holland, claimant, against Associated Grocers of Iowa, employer 
 
         (hereinafter referred to as AGI), and The Travelers, insurance 
 
         carrier, defendants, for workers' compensation benefits as a 
 
         result of an alleged injury on January 10, 1984.  On June 14, 
 
         1988, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at hearing are listed in 
 
         the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On January 10, 1984, claimant received an injury which 
 
         arose out of and in the course of his employment with AGI;
 
         
 
              2.  Claimant is seeking additional temporary total 
 
         disability or healing period benefits only from May 2, 1985 
 
         through May 27, 1985 and from June 10, 1986 through November 17, 
 
         1986 and the defendants agree that he was not working at this 
 
         time.
 
         
 
              Claimant was paid for these periods of time by AGI and 
 
         another insurer, National Union Fire Insurance Company;
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   2
 
         
 
         
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole;
 
         
 
              4.  If permanent disability benefits are awarded, they 
 
         shall begin as of June 18, 1984;
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $301.69;
 
         
 
              6.  All requested medical benefits have been or will be 
 
         paid by defendants; and,
 
         
 
              7.  The claim of entitlement to penalty benefits under 
 
         Iowa Code section 86.13 was withdrawn at hearing.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding in the prehearing report:
 
         
 
              I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
             II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Pursuant to order of the undersigned, each party prepared 
 
         and filed a "Statement of Facts Relied Upon" to simplify the 
 
         writing of this decision.  These statements are incorporated into 
 
         this summary as if fully set out herein.  Whether or not 
 
         specifically referred to in these statements or in the following 
 
         brief summary prepared by the undersigned, all of the evidence 
 
         received at the hearing was independently reviewed and considered 
 
         in arriving at this decision.  Any conclusionary statements in 
 
         the following summary should be considered as preliminary 
 
         findings of fact.
 
         
 
              Claimant is a 49 year old high school graduate.  He has 
 
         worked for the defendant, AGI, for the last 21 years and 
 
         continues to do so at the present time.  Claimant's past 
 
         employment consisted of fire fighting for the U.S. Forest Service 
 
         as a young adult, a gas station worker, and as a helper in a 
 
         medicine manufacturing company.  For approximately three or four 
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   3
 
         
 
         
 
         years prior to his employment at AGI, claimant held the position 
 
         of distribution superintendent for Colonial Baking Company.  In 
 
         this job he supervised employees including two or three foremen.
 
         
 
              Claimant's work at AGI consisted of truck driving and 
 
         loading and unloading trucks.  Claimant said that he unloaded 
 
         approximately 35,000 pounds of groceries each day.  Claimant 
 
         admitted to two back injuries prior to the work injury in this 
 
         case, 1982 and in 1983, while working for AGI.  Each time 
 
         following. these injuries he was absent for a few days from work 
 
         but returned to full duty without continuing problems.  On 
 
         January 10, 1984, while pulling up a door on the rear of his 
 
         truck, claimant "felt something pop" and his low back began to 
 
         hurt.  Claimant said that he then left on a pre-scheduled two 
 
         week vacation which was cut short due to back pain and he sought 
 
         medical attention.  After conservative treatment failed to 
 
         improve claimant's back condition, claimant underwent a surgical 
 
         injection of Chymopapain at the L4-5 level of his spine to 
 
         dissolve and collapse the disc at that level.  After recovery 
 
         from this procedure, claimant returned to full duty at work and 
 
         worked without apparent problems for 10 months and then suffered 
 
         another work injury at AGI in April, 1985, which required disc 
 
         fusion surgery.  Following this surgery, claimant decided to 
 
         leave his truck driving job and accepted lighter duty employment 
 
         at AGI as an inventory control coordinator which paid $12,000 to 
 
         $13,000 less per year than his salary as a truck driver.  
 
         Claimant also has lost a considerable amount of pension benefits 
 
         as a result of this job change.
 
         
 
              The insurer of AGI at the time of the second injury in 
 
         April, 1985, was National Union Fire Insurance Company and 
 
         claimant entered into an Iowa Code section 85.35 settlement with 
 
         that carrier with reference to the April, 1985, injury prior to 
 
         hearing in this case.  According to the terms of this settlement, 
 
         the settlement was a final bar to all claims arising from the 
 
         April 23, 1985 injury against AGI and its carrier at that time.
 
         
 
              Claimant is seeking healing period and permanent disability 
 
         benefits allegedly rising from both the April 23, 1985 and 
 
         January 10, 1984 injuries.  Two physicians have opined that 
 
         claimant suffered at least a five percent permanent partial 
 
         impairment from the first injury and an additional 15 percent 
 
         permanent partial impairment following the second injury.  One 
 
         physician opined that the second injury was caused by stress from 
 
         the surgery caused by this first injury.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   4
 
         
 
         
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.   Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question  of causal connection  is essentially within 
 
         the domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co. , 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant is seeking benefits for 
 
         disability caused by both the January, 1984 and April, 1985 
 
         injuries in utter disregard of the settlement between claimant 
 
         and the insurance carrier for AGI in April of 1985.  That 
 
         settlement constitutes a final bar to any and all claims from the 
 
         April, 1985 injury against AGI.  Although a different carrier is 
 
         involved in that case, the same employer is involved and the 
 
         settlement must be enforced in favor of this employer.  
 
         Therefore, if claimant is to recover for disability, he must show 
 
         that the disability arose independent of the April 23, 1985 
 
         injury.
 
         
 
              Claimant has shown that he suffered at least a five percent 
 
         permanent partial impairment as a result of the January 10, 1984 
 
         injury given the uncontroverted opinions of the physicians in 
 
         this case.  This impairment was independent of the April 23, 1985 
 
         injury.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   5
 
         
 
         
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or r(striction on work activity may or may not result 
 
         in such a loss earning capacity.  The extent to which a work 
 
         injury arid a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In the case sub judice, claimant's industrial disability 
 
         must be measured independent of the second injury and at the time 
 
         immediately prior to the second injury on April 23, 1985.  At 
 
         that time claimant stated that although he was not totally pain 
 
         free, he testified in his deposition that he had no real problems 
 
         and felt that he was completely healed.  The medical facts, 
 
         however, are contrary.  Claimant was not completely healed.  He 
 
         still had a five percent permanent partial impairment.  
 
         Claimant's primary treating physician, Marvin Dubanski, M.D., a 
 
         board certified orthopedic surgeon, stated in his reports that 
 
         although he released claimant to return to work without 
 
         restrictions, he felt that claimant was not wise in doing so.  He 
 
         recommended that claimant accept a lower paying supervisory job 
 
         which did not require heavy lifting.  William Boulden, M.D., 
 
         another orthopedic surgeon, opined that he would have imposed 
 
         permanent restrictions against heavy lifting after the 
 
         Chymopapain injection surgery.  The fact that claimant did, in 
 
         fact, suffer a second injury, is evidence of the fact that 
 
         claimant had back impairment and a disability prior to the April 
 
         23, 1985 injury.  Claimant may not have suffered a loss in actual 
 
         earnings after the January, 1984 injury, but his earnings were 
 
         from a type of employment he should not have been performing.  
 
         Consequently, the actual earnings factor is not a good indicator 
 
         of his industrial disability in this case.  Claimant testified 
 
         that had he accepted the supervisory job offered to him after the 
 
         January 10, 1984 injury, the job would have paid $12,000 to 
 
         $13,000 less than he is now receiving.
 
         
 
              Claimant was 45 years of age at the time  of the January, 
 
         1984 injury.  Such an age places him in a category where 
 
         retraining is not easy given his work history of heavy labor.  
 
         However, claimant had prior managerial experience which would be 
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   6
 
         
 
         
 
         useful in job searches.  Claimant's current employment is 
 
         suitable and stable at the present time.
 
         
 
              After examination of all of the factors, it is found as a 
 
         matter of fact that claimant has suffered a 20 percent loss of 
 
         earning capacity from his work injury of January 10, 1984 which 
 
         arose independent of any injury on April 23, 1985.  Based upon 
 
         such a finding, claimant is entitled as a matter of law to 100 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 20 percent of the 500 weeks, the 
 
         maximum allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              Claimant bases his claim for additional temporary total 
 
         disability or healing period benefits on events precipitated by 
 
         the April 23, 1985 injury and, as explained above, claimant has 
 
         settled all disability claims causally connected to that injury.  
 
         Claimant does not seek additional healing period benefits for the 
 
         January 10, 1984 injury prior to April 23, 1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On January 10, 1984, claimant suffered a disc injury to 
 
         the L4-5 level of his spine which arose out of and in the course 
 
         of his employment with AGI.  This injury compelled claimant to 
 
         undergo a Chymopapain injection which collapsed the L4-5 disc and 
 
         relieved pressure on adjacent nerves which was causing severs 
 
         pain.
 
         
 
              3.  The work injury of January 10, 1984, was a cause of a 
 
         five percent permanent partial impairment to the body as a whole.  
 
         Although no permanent restrictions were imposed upon physical 
 
         activity by his physician at the time, this was at the request of 
 
         claimant to maintain his income.  Claimant's physicians 
 
         recommended that he not return to work requiring heavy or 
 
         repetitive lifting.
 
         
 
              4.  On April 23, 1985, while unloading freezer boxes, 
 
         claimant injured his back again at the L5-Sl level of his spine 
 
         requiring fusion surgery of the vertebra at that level.  This 
 
         injury was, in part, the result of the Chymopapain injection 
 
         caused by the January 10, 1984 injury because of added stress on 
 
         the L5-Sl disc level due to the loss of the L4-5 disc.  Claimant 
 
         suffered an additional 15 percent permanent partial impairment 
 
         from this second injury.
 
         
 
              5.  The work injury of January 10, 1984, and the resulting 
 
         permanent partial impairment was a cause of a 20 percent loss of 
 
         earning capacity independent of the April 23, 1985 work injury.  
 
         Claimant did not suffer a loss of actual earnings from the injury 
 
         because he did not take the advice of his physicians to accept 
 
         lower paying light duty work.  Claimant returned to work despite 
 
         his disability and risk of future injury.  Had claimant followed 
 
         the advice of his doctor, he would have suffered a $12,000 to 
 
         $13,000 loss in annual income.  Claimant's employment upon his 
 
         return to work was not suitable and the fact that he suffered a 
 
         second injury on April 23, 1985 as a result of the January 10, 
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   7
 
         
 
         
 
         1984 injury is evidence of his disability compensated herein.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to 100 weeks 
 
         of permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of three 
 
         hundred one and 69/100 dollars ($301.69) per week from June 18, 
 
         1984.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all permanent 
 
         partial disability benefits previously paid as set forth in the 
 
         prehearing report.
 
         
 
              3.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 

 
         
 
         
 
         
 
         HOLLAND V. ASSOCIATED GROCERS OF IOWA
 
         PAGE   8
 
         
 
         
 
         
 
         
 
              Signed and filed this 30th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P.WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. John E. Swanson
 
         Attorney at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Fred L. Morris
 
         Attorney at Law
 
         P. 0. Box 9130
 
         Des Moines, Iowa 50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed November 30, 1988
 
                                              LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD L. HOLLAND,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 757549
 
         
 
         ASSOCIATED GROCERS OF IOWA,            A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant attempted to recover twice for a April, 1985 injury 
 
         by settling the injury under 85.35 with one insurance carrier and 
 
         proceeding against another insurance carrier for healing period 
 
         and permanent partial disability benefits caused by the April 8, 
 
         1985 injury.  Claimant argued that the April, 1985 injury was 
 
         approximately caused by an earlier January, 1984 injury and 
 
         therefore the insurance carrier at the time of the first injury 
 
         is liable for all of the disability.
 
         
 
              It was held that the settlement barred all claims against 
 
         the employer arising from the April, 1985 injury and that 
 
         claimant could only recover for disability caused by the earlier 
 
         January, 1984 injury which was independent of the subsequent 
 
         April, 1985 injury settled under Iowa Code section 85.35.  
 
         However, a 20 percent industrial disability was found to have 
 
         been caused by the earlier injury and disability benefits were 
 
         awarded accordingly.
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GEORGE J. STANCEL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                File Nos. 757632/780141
 
         PENICK & FORD, LTD.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         THE HARTFORD and NATIONAL
 
         UNION FIRE INSURANCE COMPANY,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals and defendants cross-appeal from an 
 
         arbitration decision awarding medical costs and medical mileage; 
 
         temporary total disability benefits; and permanent partial 
 
         disability benefits based on disability of five percent.  The 
 
         award was apportioned to two injuries with one-third being 
 
         attributed to the February 15, 1984 injury and two-thirds being 
 
         attributed to the October 6, 1984 injury.  The cross-appeal was 
 
         made by the employer and the insurance carrier who was the 
 
         insurer at the time of the second injury date.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 and 9 through 13; 
 
         joint exhibits 2 through 8; and defendants' exhibits A, B, D 
 
         through M, and 0 through S.  Both appealing parties filed briefs 
 
         on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are: whether claimant received an 
 
         injury on October 6, 1984 that arose out of and in the course of 
 
         his employment; whether there is a causal relationship between 
 
         claimant's disability and the alleged injury on October 6, 1984; 
 
         the nature and extent of benefits; and rate of compensation.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              On February 15, 1984 claimant fell from the top of a 
 
         railroad car to a concrete surface at work.  He reported that he 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   2
 
         
 
         
 
         experienced back, hip and shoulder pain and was hospitalized for 
 
         three days.  William R. Basler, M.D., treated claimant and in a 
 
         note dated February 17, 1984 his impression was multiple 
 
         contusions and abrasions, deep puncture wound of the left tibia, 
 
         and thoracic and lumbar contusions and sprain.  Claimant was 
 
         released to return to work March 5, 1984.  Although he 
 
         experienced sharp, intermittent right back and hip pain while 
 
         doing certain work activities during the summer of 1984, he did 
 
         not visit a physician again until October 8, 1984.
 
         
 
              On October 6, 1984 claimant experienced back pain and hip 
 
         pain while moving one hundred pound sacks of cornstarch with a 
 
         coworker.  Claimant worked the following day but sought medical 
 
         care with Dr. Basler on October 8, 1984 and a note of Dr. Basler 
 
         on that date stated: "pain in rt hip-esp bad last couple days & 
 
         weakness down in rt thigh trouble lifting - ? [sic] related to 
 
         fall in Febr.  Trouble lifting with pain in the (R) hip 
 
         posteriorly--2 Lam. in past - L4 - (L) side.  Lifting 100 lb 
 
         sacks - above onset Sat. worse yesterday .... Above due to 100 lb 
 
         sacks not due to accident 6 mo ago."  In another note dated 
 
         December 11, 1984 the doctor reported that claimant had had pain 
 
         off and on all summer but failed to see the doctor.
 
         
 
              Claimant was seen by James W. Turner, M.D., on October 10, 
 
         1984 and Dr. Turner prescribed Motrin, an anti-inflammatory 
 
         medication.  After rechecking claimant on January 2, 1985, Dr. 
 
         Turner thought claimant could return to work in about one week on 
 
         a restricted basis if such work was available.  No limited duty 
 
         work with defendant was available.  Dr. Basler pronounced 
 
         claimant able to resume work as of March 15, 1985 (Exhibit H).  
 
         Claimant returned to work on March 18, 1985 and worked the 
 
         following day.  He then sought treatment for gastrointestinal 
 
         problems and was under the care of Julius Pietrzak, M.D., from 
 
         March 21 through March 29, 1985 and under the care of Robert A. 
 
         Silber, M.D., from March 29 through June 26, 1985. (Joint Ex. 3, 
 
         page 20)
 
         
 
              In a letter dated October 22, 1985 Dr. Turner reported that 
 
         claimant had two prior laminectomies, one in 1968 and one in 
 
         1970, and that his x-rays of October 1984 showed rather 
 
         significant degenerative changes of the lumbar spine of rather 
 
         long standing duration.  He felt that claimant's symptoms were an 
 
         aggravation of his underlying condition that would probably 
 
         return to the pre-injury status if allowed sufficiently to do so.  
 
         He also expressed the opinion that claimant should not be 
 
         participating in unlimited bending and lifting activities and 
 
         that there should be some restrictions on the degree of work.
 
              Claimant began to develop gastrointestinal problems 
 
         including vomiting in February 1985 for which Dr. Silber, a 
 
         gastroenterologist, treated him.  Claimant's condition was 
 
         diagnosed as severe esophagitis with ulcers and narrowing with 
 
         medium size hiatal hernia and shallow, duodenal bulb ulcerations.  
 
         The hiatal hernia was originally diagnosed in 1976.  Dr. Silber 
 
         removed claimant from the Motrin and all other medications but 
 
         for Reglan which the doctor prescribed.  In a letter of April 15, 
 
         1985, Dr. Silber indicated that he could not say with certainty 
 
         the cause of claimant's upper G.I. tract disease stating that his 
 
         hiatal hernia placed him at some risk of having, esophagitis, but 
 
         that the nonsteroidal anti-inflammatory medications which 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   3
 
         
 
         
 
         claimant had taken, of which Motrin is one, can cause upper G.I. 
 
         tract disease such as esophagitis.  Claimant had been off work 
 
         for the esophagitis from March 29, 1985 through June 26, 1985.  
 
         Dr. Silber released him to return to work on June 27, 1985.
 
         
 
              On July 1, 1985 claimant was hospitalized at St. Luke's 
 
         Hospital under treatment of Robert W. Shultice, M.D., a 
 
         psychiatrist for unipolar affective disorder, depression.  
 
         Claimant testified at the arbitration hearing:
 
         
 
                 The Deputy Industrial Commissioner:  Maybe I should 
 
              explain better.
 
         
 
                   I'm going to permit you to tell us how you felt 
 
              and why you thought you felt that way when you were 
 
              hospitalized.
 
         
 
              A.  I was off work quite a while.  Probably worried too 
 
              much.  I don't know.  Maybe I wasn't treated right by 
 
              the company too.
 
         
 
              Q.  Anything else, George, that you feel -- or any 
 
              other feeling that you had that you could relate?
 
         
 
              A.  I don't think so.  Not that I can think of.
 
         
 
         (Transcript, p. 34)
 
         
 
         Medical records indicate that claimant was twice previously 
 
         hospitalized at the Veteran's Administration Hospital in Iowa 
 
         City for affective disorder with admissions on December 4, 1974 
 
         and June 10, 1980.  Claimant was treated with anti-depressant 
 
         medication following his 1980 discharge and was seen at the 
 
         Veteran's Administration Hospital on an outpatient basis 
 
         throughout 1981, 1982 and 1983 for medication checkups and 
 
         renewals.  In a discharge summary of July 7, 1985, Dr. Shultice 
 
         characterized claimant's 1985 condition as a recurrent, unipolar 
 
         affective disorder.  Claimant returned to work at Penick & Ford 
 
         on July 8, 1985 and has continued to work.
 
              On a note dated December 30, 1985 Dr. Turner reported:
 
         
 
                 Summary of discussion with attorney in Des Moines.  
 
              Attorney for one of apparent two Insurance companies 
 
              called.
 
         
 
                 Explained that it is my opinion that the patient's 
 
              back problems for which I saw him for resulted from the 
 
              alleged fall occurring in the Spring of 1984.  I have 
 
              no documentation of subsequent injury in the Fall of 
 
              1984.  I feel that the nature of the injury is one of 
 
              aggravation of underlying changes resulting from 
 
              degenerative disc disease and two previous operations 
 
              and based on an overall opinion from the last time that 
 
              I had seen the patient and from Dr. Robb's notes in 
 
              April, the patient would carry a 25 to 30% permanent 
 
              parti [sic] impairment rating which had not been 
 
              applied previously but that only 5% or so of this could 
 
              be counted as aggravation from the recent injury.  It 
 
              is my understanding that the patient has now returned 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   4
 
         
 
         
 
              to work.  I believe this substantiates my opinion.
 
         
 
         (Ex  5)
 
         
 
              In a letter dated January 15, 1986, Dr. Basler stated:
 
         
 
                 I have reviewed pages 47 through 72 and 100 through 
 
              121 of the transcript of Mr. StancelOs alleged 
 
              deposition, as well as my records concerning Mr. 
 
              Stancel, and have come to the following conclusion 
 
              concerning Mr. StancelOs right hip and right leg 
 
              symptoms after October 8, 1984.  I believe that his 
 
              fall off the railroad car on February 15, 1984 
 
              aggravated a back previously weakened by two 
 
              laminectomies and degenerative changes.
 
         
 
                 After careful study of the alleged deposition by Mr. 
 
              Stancel under oath, I am unable to render an opinion as 
 
              to which insurance company should be responsible for 
 
              his care.
 
         
 
         (Ex. A)
 
         
 
              Claimant's hourly rate of wage was $10.61 per hour to July 
 
         30, 1984 and was $11.09 per hour thereafter.  The last pay period 
 
         he was paid in October was the period ending October 7, 1984 and 
 
         he worked 63 hours that period.  Claimant was paid on a biweekly 
 
         basis.  Claimant worked less than 40 hours four times in the 
 
         period July 8, 1984 through October 7, 1984 and each of those 
 
         times he worked either 24 or 25 hours and it appears in at least 
 
         two of those four times he took no vacation nor sick time.  
 
         (These are the periods ending July 8, 1984 and September 30, 
 
         1984).  The parties stipulated claimant's rate of compensation 
 
         regarding the February 15, 1984 injury is $344.32.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Two matters raised on appeal can be disposed of summarily.  
 
         Claimant correctly notes that the arbitration decision is unclear 
 
         as to the award of healing period benefits although the deputy 
 
         discussed entitlement to such benefits in the decision.  The 
 
         deputy's apparent oversight will be corrected by making the award 
 
         as indicated below.  The defendant cross-appellant (hereinafter 
 
         defendant) argues that credit should be allowed for payments 
 
         already made.  Those credits will also be ordered below.
 
         
 
              The second matter that can be disposed of summarily is that 
 
         defendants noted that the arbitration decision discusses an 
 
         alleged injury of December 24, 1985.   Defendants correctly note 
 
         that that injury was the subject of a separate proceeding and 
 
         should not be part of this decision.   The files of this agency 
 
         indicate that the proceeding for that injury (file No. 812869) 
 
         was settled and approved on February 3, 1987.  The decision in 
 
         the instant proceeding should not include any determination on 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   5
 
         
 
         
 
         the alleged injury of December 24, 1985 and any references to 
 
         that injury in the arbitration decision are inappropriate and can 
 
         be ignored.
 
         
 
              The first issue to be resolved is whether claimant received 
 
         an injury that arose out of and in the course of his employment 
 
         on October 6, 1984.  This issue is important because the 
 
         insurance carrier on October 6, 1984 was not the same insurance 
 
         carrier as on February 15, 1984.  The earlier insurance carrier 
 
         stipulated claimant received an injury that arose out of and in 
 
         the course of his employment and the rate of compensation.  The 
 
         defendants (the later insurance carrier) on appeal argue that the 
 
         second incident was merely a recurrence of the first injury and 
 
         that the second incident did not contribute causally to the 
 
         disability condition.  In discussing this issue the deputy 
 
         stated:
 
         
 
                 Defendant, National Union Fire, apparently contends 
 
              claimant's condition after October 6, 1984 was merely a 
 
              manifestation of a physical condition created by the 
 
              February 15, 1984 injury.  We are unable to concur.  
 
              Claimant was an unreliable witness as far as describing 
 
              his complaints and physical condition between February 
 
              15, 1984 and October 6, 1984.  His wife also was not 
 
              altogether reliable in this regard.  She variously 
 
              reported to Dr. Basler that claimant sought medical 
 
              care in the Summer 1984 and that claimant did not seek 
 
              care because he could not afford it.  The objective 
 
              evidence is that claimant sought no medical care from 
 
              March 6, 1984 to October 8, 1984.  Claimant has sought 
 
              extensive medical care since then.  Likewise, 
 
              claimant's activities of October 6, 1984 were such as 
 
              could produce aggravation of a weakened back even 
 
              without a prior incident such as that of February 15, 
 
              1984.  We conclude claimant had an, injury which arose 
 
              out of and in the course of his employment on October 
 
              6, 1984.
 
         
 
         The deputy correctly concluded that claimant had received an 
 
         injury on October 6, 1984 because he sought extensive treatment 
 
         for his back condition and was unable to work after that date.  
 
         Claimant has established by the greater weight of evidence that 
 
         he sustained an injury on October 6, 1984 that arose out of and 
 
         in the course of his employment.
 
         
 
              The next issue to be resolved is whether there is a causal 
 
         relationship between claimant's disability and the injury on 
 
         October 6, 1984.  Defendants argue on appeal that there is 
 
         insufficient medical evidence in the record to support the 
 
         deputy's conclusions that there was a causal relationship between 
 
         claimant's disability and the injury of October 6, 1984 and that 
 
         two-thirds of claimant's disability resulted from that injury.  
 
         In discussing this issue the deputy stated:
 
         
 
                 Claimant has established the requisite causal 
 
              relationship between his work injuries and his 
 
              disability.  Both Drs. Basler and Turner opine 
 
              claimant's current disability is an aggravation of 
 
              underlying degenerative changes originating in his 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   6
 
         
 
         
 
              previous surgeries.  Both doctors ultimately also 
 
              attributed the disability to the February 1984 fall.  
 
              While we ultimately agree that that incident was a 
 
              causal factor in claimant's disability, we do not agree 
 
              that it was wholly responsible for claimant's 
 
              condition.  Dr. Basler, on October 8, 1984, concluded 
 
              claimant's condition of that date was due to lifting 
 
              sacks and not to his February fall.  He later concluded 
 
              otherwise after being told claimant had pain and 
 
              medical treatment throughout Summer 1984.  Claimant 
 
              never told Dr. Turner of the October 6, 1984 incident 
 
              and Dr. Turner drew his conclusions unaware that that 
 
              incident had taken place.  Both doctors were not 
 
              accurately appraised of factors bearing on claimant's 
 
              ultimate condition.  Their opinions are considered in 
 
              that light.  Claimant's condition substantially 
 
              manifested itself after his October 6, 1984 activity.  
 
              He sought extensive medical treatment and was off work 
 
              for prolonged periods following that date.  We conclude 
 
              at least two-thirds of claimant's ultimate disability 
 
              attributable to his aggravation of his preexisting back 
 
              condition resulted from that incident.
 
         
 
         Claimant participated in an activity on October 6, 1984 that 
 
         aggravated a preexisting condition.  His current back condition 
 
         manifested itself after this activity.  He sought extensive 
 
         treatment and did miss work.  The deputy correctly concluded that 
 
         there was a causal relationship between the injury and claimant's 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   7
 
         
 
         
 
         back condition.
 
         
 
              The deputy also concluded that there was a causal connection 
 
         between claimant's esophagitis and unipolar affective disorder 
 
         (depression) and his work injury.  Defendants argue that the 
 
         deputy erred.  In discussing this issue the deputy stated in 
 
         relevant part:
 
         
 
              Dr. Silber has indicated that claimant's hiatal hernia 
 
              increased his risk of esophagitis and that Motrin can 
 
              cause esophagitis.  Claimant's condition apparently 
 
              improved resolved [sic] after he ceased taking Motrin 
 
              and received medical treatment.  We find ingestation of 
 
              Motrin to treat claimant's compensable injury was a 
 
              proximate cause of his esophagitis.  Claimant claims no 
 
              permanency on account of that condition.  He is 
 
              entitled to payment of related medical costs and 
 
              payment of temporary total disability benefits during 
 
              the time he was actually off work on account of the 
 
              condition, however.
 
         
 
         The deputy was correct in reaching this conclusion.  The 
 
         medication that Dr. Silber indicated could cause claimant's 
 
         esophagitis was prescribed for treatment of claimant's back 
 
         condition.  There was a direct causal relationship between the 
 
         esophagitis and the claimant's back injury.
 
         
 
              While there was medical evidence to establish a direct 
 
         causal relationship between the esophagitis and claimant's 
 
         injury, there is no such evidence regarding treatment of 
 
         claimant's depression.  Claimant's depression is a recurrent 
 
         disorder for which he had previously been hospitalized and had 
 
         received medication.  Claimant merely testified that he was off 
 
         work quite a while and probably worried too much.  There is 
 
         insufficient evidence in the record to conclude that claimant's 
 
         treatment for his depression was related to his work injury or 
 
         that his work injury was a temporary aggravation of his 
 
         preexisting condition.
 
         
 
              The next issue to be resolved is the extent of claimant's 
 
         disability.  Claimant argues on appeal that the deputy's finding 
 
         of five percent industrial disability is too low.  In discussing 
 
         the extent of disability the deputy stated in relevant part:
 
         
 
                 Dr. Turner has stated claimant has a back related 
 
              permanent partial injury of 25 to 30 percent of which 
 
              only five percent results from claimant's recent 
 
              aggravation.  The doctor also stated he believes 
 
              claimant's back will eventually return to its preinjury 
 
              state if allowed to do so. ... Claimant is 60 years old 
 
              and has very limited education and other work 
 
              experience.  He has returned to work with the employer. 
 
              ... Claimant is a long term employee and his position 
 
              with the employer appears secure.  Likewise, although 
 
              claimant testified he would like to continue working 
 
              for as long as he is able, it appears unrealistic to 
 
              project that claimant would continue to work more than 
 
              another decade.  In any event, were he to choose to 
 
              work longer than that, factors other than the limited 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   8
 
         
 
         
 
              permanent partial impairment related to his work 
 
              injuries would likely have a greater impact on his job 
 
              access.  All factors support a finding that claimant's 
 
              industrial disability related to his work injuries is 
 
              not greater than is [sic] permanent partial impairment 
 
              related to his work injuries, that is five percent.  
 
              Claimant is entitled to 25 weeks of permanent partial 
 
              disability benefits.
 
         
 
         It is not exactly clear from Dr. Turner's letter or notes what he 
 
         felt was claimant's impairment as it relates to the two injuries 
 
         in question and claimant's preexisting condition.  However, it is 
 
         clear that he was of the opinion that claimant did have an 
 
         impairment due to the two injuries.  Claimant's activities and 
 
         medical treatment of the injuries support the conclusion that 
 
         claimant's impairment caused by the two injuries is a five 
 
         percent impairment of the body as a whole.  When all factors are 
 
         considered, the deputy correctly concluded that claimant had 
 
         suffered an industrial disability of five percent.
 
         
 
              The next issue to be resolved is healing period benefits.  
 
         Claimant is entitled to healing period benefits for all the time 
 
         he actually lost from work on account of his alleged injuries.  
 
         There is no dispute in this appeal that claimant was injured on 
 
         February 15, 1984 and returned to work on March 5, 1984.  
 
         Claimant was again injured on October 6, 1984 and was unable to 
 
         work.  He was treated for back pain and was eventually released 
 
         to return to work on March 15, 1985 by Dr. Basler.  He is 
 
         entitled to healing period benefits from October 8, 1984 through 
 
         March 14, 1985.
 
         
 
              Claimant was unable to work and was under Dr. Pietrzak's and 
 
         Dr. Silber's care from March 21, 1985 through June 26, 1985 for 
 
         treatment of gastrointestinal problems.  He is entitled to 
 
         compensation for temporary total disability benefits during this 
 
         period of time.
 
              Claimant's inability to work, his gastrointestinal problems, 
 
         and his permanent disability all relate to his back condition.  
 
         As discussed above, his back condition is the result of the two 
 
         injuries.  The back condition is attributable to the two 
 
         injuries.  Two-thirds is attributed to the October 6, 1984 injury 
 
         and one-third is attributed to the February 15, 1984 injury.
 
         
 
              Defendant insurers are liable for permanent disability 
 
         benefits in the same portion that claimant's back condition is 
 
         attributable between the two injuries.  The insurer at the time 
 
         of the first injury is liable for one-third of the five percent 
 
         disability (one and two-thirds percent) and the insurer at the 
 
         time of the second injury is liable for two-thirds of the five 
 
         percent disability (three and one-third percent).  The first 
 
         insurer is liable for medical costs and mileage and healing 
 
         period benefits between the first injury (February 15, 1984) and 
 
         October 5, 1984.  The second insurer is liable for medical costs 
 
         and mileage incurred on or after the date of the second injury 
 
         (October 6, 1984) except for those expenses related to treatment 
 
         of claimant's unipolar affective disorder; healing period 
 
         benefits October 8, 1984 through March 14, 1985; and temporary 
 
         total disability benefits March 31, 1985 through June 26, 1985.
 
         
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page   9
 
         
 
         
 
              The last issue to be resolved is the rate of compensation 
 
         for the injury of October 6, 1984.   The claimant argues on 
 
         appeal that the deputy erred in not including the week of the 
 
         injury and in determining the correct "completed" consecutive 
 
         weeks in the calculation.  In discussing this issue the deputy 
 
         stated:
 
         
 
              Claimant's rate is determined under section 85.36(6). 
 
              Claimant's actual overtime hours are paid at his 
 
              straight time rate.  Division of Industrial Services 
 
              Rule 500-8.2.  A nightshift pay differential is 
 
              considered premium pay which is not included in the 
 
              weekly earnings computation.  See Lawyer and Higgs, 
 
              Iowa Workers' Compensation -- Law and Practice, 
 
              section 12-3.  Burmeister v. Iowa Beef Processors, 
 
              Inc., II Iowa Industrial Commissioner Report 59, 64 
 
              (1982).  We believe the same rationale applies to a 
 
              Sunday pay differential and to a holiday pay 
 
              differential.  The week in which the injury occurs is 
 
              not part of the last completed period of 13 consecutive 
 
              calendar weeks immediately preceding the injury.  It, 
 
              therefore, is not included in those weeks from which 
 
              the rate calculation is drawn.  It might have been 
 
              better had weeks in which claimant was absent from work 
 
              on account of illness, vacation or other causes had not 
 
              been included in the weeks available for wage 
 
              computation.  Claimant's employer paid him for those 
 
              absences, however.  Therefore, a determination of the 
 
              earnings to which the employee "would have been 
 
              entitled had he worked the customary hours for the full 
 
              pay period in which he was injured" can be made.  We 
 
              find claimant's rate should be computed from the week 
 
              ending July 8, 1984 through the week ending September 
 
              30, 1984.  The rate should include hours not worked for 
 
              which claimant received wages as representative of 
 
              earnings he would have been entitled to had he worked 
 
              the customary hours for the full pay period.  All hours 
 
              are calculated at the straight time rate.
 
         
 
         The deputy correctly calculated claimant's gross weekly wages.  
 
         In light of the fact that claimant sometimes was on a shift that 
 
         was to work only three or four days some weeks and seven days 
 
         other weeks, the claimant's argument that "short" weeks should be 
 
         excluded because they are not completed weeks is not persuasive.  
 
         Claimant's rate is $288.45.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant had a back injury in 1965 with laminectomies at 
 
         the L4-L5 interspace in 1965 and 1967.
 
         
 
              2.  Claimant was hospitalized with traction for back pain in 
 
         1977.
 
         
 
              3.  Claimant returned to work after his back treatment in 
 
         1965, 1967, and 1977.
 
         
 
              4.  Claimant was hospitalized for recurrent depression, 
 
         unipolar affective disorder in 1974 and 1980.
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page  10
 
         
 
         
 
         
 
              5.  Claimant received outpatient anti-depression medication 
 
         and medical monitoring at the Veteran's Administration Hospital 
 
         in 1981, 1982, and 1983.
 
         
 
              6.  Claimant sustained an on-the-job injury on February 15, 
 
         1984 in which he experienced lumbosacral back pain.
 
         
 
              7.  Dr. Basler treated claimant for that injury and returned 
 
         him to work on March 5, 1984.
 
         
 
              8.  Claimant saw Dr. Pietrzak for prostrate problems on 
 
         March 6, 1984 and did not receive or seek other medical treatment 
 
         until October 8, 1984.
 
         
 
              9.  Claimant has been under medical care since October 8, 
 
         1984.
 
         
 
              10.  Claimant, with a co-worker, transferred 100 pound sacks 
 
         of cornstarch from his employer's to a customer's pallet for a 
 
         substantial period of the October 6, 1984 work day.
 
         
 
              11.  Claimant worked on October 7, 1984 with pain.
 
         
 
              12.  Claimant had pain and needed to rest on intermittent 
 
         occasions in the Summer 1984.  He had more periods of pain and 
 
         has needed more rest after October 6, 1984.
 
         
 
              13.  Claimant had some life activity restrictions in the 
 
         summer 1984; his life activity restrictions were greater after 
 
         October 6, 1984.
 
         
 
              14.  Claimant did not tell Dr. Turner of his October 6, 1984 
 
         incident.  Claimant nor his spouse told Dr. Basler claimant had 
 
         seen a physician for back pain throughout summer 1984.
 
         
 
              15.  Claimant's back condition is an aggravation of his 
 
         preexisting degenerative condition resulting from the residuals 
 
         of his two prior laminectomies.
 
         
 
              16.  Claimant has a 25 to 35 percent permanent partial 
 
         impairment of the body as a whole.  Claimant has a five percent 
 
         impairment of the body as a whole caused by the injuries on 
 
         February 15, 1984 and October 6, 1984.  Two-thirds of claimant's 
 
         current aggravation results from the October 6, 1984 incident; 
 
         one-third from the February 15, 1984 incident.
 
         
 
              17.  Claimant has restrictions on bending, lifting, twisting 
 
         and other physical maneuvers.
 
         
 
              18.  Claimant is a long term employee who has returned to 
 
         work.
 
         
 
              19.  Claimant is 60 years old and has completed eighth 
 
         grade.
 
         
 
              20.  Claimant is not now contemplating retirement.
 
         
 
              21.  Claimant was hospitalized for unipolar affective 
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page  11
 
         
 
         
 
         disorder, recurrent on July 1, 1985 and released July 7, 1985.
 
         
 
              22.  Claimant developed esophagitis following his October 6, 
 
         1984 work injury.
 
         
 
              23.  Claimant has a history of gastrointestinal disorders 
 
         and has a hiatal hernia which increases the risk of esophagitis.
 
         
 
              24.  Claimant was taking Motrin for his back condition.  
 
         Motrin can cause esophagitis.
 
         
 
              25.  Claimant's back injury of October 6, 1984 was a 
 
         substantial contributing factor in claimant's gastrointestinal 
 
         disorders.
 
              26.  Claimant's treatment for his recurrent unipolar 
 
         affective disorder was not caused by his back injuries of 
 
         February 15, 1984 and October 6, 1984.
 
         
 
              27.  Claimant was off work for treatment of his esophagitis 
 
         from March 21, 1985 through June 26, 1985.
 
         
 
              28.  Claimant was off work for treatment of his back injury 
 
         of October 6, 1984 from October 8, 1984 through March 14, 1985.
 
         
 
              29.  Claimant is an hourly employee.
 
         
 
              30.  Claimant receives premium pay for work on Sunday.
 
         
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page  12
 
         
 
         
 
              31.  Claimant receives overtime pay for work in excess of 40 
 
         hours per week.
 
         
 
              32.  Claimant is married and entitled to two exemptions.
 
         
 
              33.  Claimant was paid for holiday and vacation time taken 
 
         in the 13 consecutive weeks immediately preceding his October 6, 
 
         1984 injury.
 
         
 
              34.  Claimant earned $6,160.13 in straight time hours in 
 
         that period.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established an injury of October 6, 1984 which 
 
         injury contributed two-thirds to his additional physical 
 
         impairment.
 
         
 
              Claimant has established a causal relationship between his 
 
         injuries of February 15, 1984 and October 6, 1984 and the 
 
         disabilities on which he bases his claim.  Two-thirds of the 
 
         established disability relates to claimant's October 5, 1984 
 
         injury; one-third to his February 15, 1984 injury.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injuries of five percent of the body as a 
 
         whole, two-thirds (three and one-third percent) resulting from 
 
         the October 6, 1984 injury, one-third (one and two-thirds 
 
         percent) from the February 15, 1984 injury.
 
         
 
              Claimant is entitled to payment of medical expenses and 
 
         mileage as set forth in this decision except as relating to 
 
         treatment for claimant's depression and relating to treatment of 
 
         the injury of December 24, 1985; defendants are entitled to 
 
         credit against medical benefits paid.
 
         
 
              Claimant is entitled to payment of temporary total 
 
         disability from March 21, 1985 to June 26, 1985.  These benefits 
 
         are all attributable to the October 6, 1984 injury.
 
         
 
              Claimant is entitled to healing period benefits from 
 
         February 16, 1984 through March 4, 1984.  These benefits are all 
 
         attributable to the February 15, 1984 injury.
 
         
 
              Claimant is entitled to healing period benefits.from October 
 
         8, 1984 through March 14, 1985.  These benefits are attributable 
 
         to the October 6, 1984 injury.
 
         
 
              Claimant's rate for the February 15, 1984 injury is the 
 
         stipulated rate of $344.32.
 
         
 
              Claimant's rate for the October 6, 1984 injury is $288.45.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page  13
 
         
 
         
 
         
 
              That defendants Penick & Ford, Ltd., and The Hartford pay 
 
         claimant permanent partial disability for eight and one-third (8 
 
         1/3) weeks at a rate of three hundred forty-four and 32/100 
 
         ($344.32) per week.
 
         
 
              That defendants Penick & Ford, Ltd., and The Hartford pay 
 
         claimant healing period benefits from February 16, 1984 through 
 
         March 4, 1984 at a rate of three hundred forty-four and 32/100 
 
         dollars ($344.32) per week.
 
         
 
              That defendants Penick & Ford, Ltd., and The Hartford pay 
 
         medical costs and medical mileage between February 15, 1984 and 
 
         October 5, 1984.
 
         
 
              That defendants Penick & Ford, Ltd., and National Union Fire 
 
         Insurance Company pay claimant permanent partial disability for 
 
         sixteen and two thirds (16 2/3) weeks at a rate of two hundred 
 
         eighty-eight and 45/100 dollars ($288.45) per week.
 
         
 
              That defendants Penick & Ford, Ltd., and National Union Fire 
 
         Insurance Company pay claimant temporary total disability from 
 
         March 21, 1985 through June 26, 1985 at a rate of two hundred 
 
         eighty-eight and 45/100 dollars ($288.45) per week.
 
         
 
              That defendants Penick & Ford, Ltd., and National Union Fire 
 
         Insurance Company pay claimant healing period benefits from 
 
         October 8, 1984 through March 14, 1985 at a rate of two hundred 
 
         eighty-eight and 45/100 dollars ($288.45) per week.
 
         
 
              That defendants Penick & Ford, Ltd., and National Union Fire 
 
         Insurance Company pay medical costs and medical mileage on or 
 
         after October 6, 1984 except as they relate to treatment for 
 
         claimant's unipolar affective disorder and the injury of December 
 
         24, 1985.
 
         
 
              That defendants receive credit for payments that they have 
 
         already made.
 
         
 
              That defendants pay any accrued amounts in a lump sum and 
 
         pay interest pursuant to section 85.30.
 
         
 
              That defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33. Costs are borne equally as regards the 
 
         October 6, 1984 and the February 15, 1984 injuries.
 
         
 
              That defendants file activity reports on the payment of this 
 
         award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of June,
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, LTD.
 
         Page  14
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 Second Avenue, S.E.
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406
 
         
 
         Ms. Sara J. Sersland
 
         Attorney at Law
 
         Tenth Floor Hubbell Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East Third Street
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                               
 
                                                 1108-1108.50-1801-1802
 
                                                 1803-1806-2206-3000
 
                                                 Filed June 28, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         GEORGE J. STANCEL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                              File Nos. 757632/780141
 
         PENICK & FORD, LTD.,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         THE HARTFORD and NATIONAL
 
         UNION FIRE INSURANCE COMPANY,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         1108 - 1108.50 - 2206
 
         
 
              Claimant was found to have aggravated preexisting back 
 
         condition in two separate work injuries with two different 
 
         insurers.  Claimant's symptoms and need for medical treatment 
 
         principally arose following second injury.  The work activities 
 
         of claimant on the date of the second injury and his treatment 
 
         after that date demonstrated that an injury occurred on the 
 
         second date which aggravated a prior injury and preexisting 
 
         condition.
 
         
 
         1801
 
         
 
              Claimant's esophagitis was caused by medication prescribed 
 
         for treatment of claimant's back condition.  The esophagitis 
 
         resulted in a temporary total disability after treatment 
 
         following the second injury.  The insurer at the time of the 
 
         second injury was liable for the temporary total disability.  
 

 
         
 
         
 
         
 
         STANCEL V. PENICK & FORD, INC.
 
         Page   2
 
         
 
         
 
         There was insufficient medical evidence to establish a causal 
 
         connection between claimant's unipolar affective disorder and 
 
         his work injuries.
 
         
 
         1802
 
         
 
              Each of the two injuries had healing periods after the 
 
         injuries.  The insurers at the time of each injury were liable 
 
         for the healing period after the injury for which they were the 
 
         insured.  The healing period after the second injury was the 
 
         liability of the second insurer.  Medical costs were treated 
 
         the same way as healing period benefits.
 
         
 
         1803 - 1806
 
         
 
              Claimant's two work injuries were the cause of permanent 
 
         partial disability.  Because claimant had returned to work 
 
         after the first injury and did not seek further medical care 
 
         for the injury but was unable to return to work for a period of 
 
         time and sought medical care after the second injury.  The 
 
         permanent partial liability was apportioned to 1/3 to the first 
 
         injury and 2/3 to the second injury.
 
         
 
         3000
 
         
 
              Claimant's argument that "short" weeks should be excluded 
 
         because they are not completed weeks was not persuasive.  
 
         Claimant was on a work shift that worked only three or four 
 
         days some weeks and seven days other weeks.
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         AL HOGANCAMP,
 
         
 
              Claimant,
 
                                                 File No. 757872
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         BOONE VALLEY COOPERATIVE
 
         PROCESSING ASSOCIATION,                  D E C I S I 0 N
 
         
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    MAR 31 1989
 
         CRUM AND FORSTER,
 
                                                INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Al Hogancamp, 
 
         claimant, against Boone Valley Cooperative Processing 
 
         Association, employer, and Crum and Forster, insurance carrier, 
 
         defendants, for benefits as the result of an injury which 
 
         occurred on February 7, 1984.  A hearing was held on January 27, 
 
         1988, at Sioux City, Iowa, and the case fully submitted at the 
 
         close of the hearing. The record consists of the testimony of Al 
 
         Hogancamp, claimant, Cecilia Blaskovich, vocational 
 
         rehabilitation consultant, Larry Hetherington, safety supervisor, 
 
         Leo Pick, shift supervisor, claimant's exhibits a through j, 
 
         defendants' exhibits I through XII and joint exhibits 1 through 
 
         18.  Both attorneys ordered a copy of the transcript and both 
 
         attorneys submitted excellent briefs.  Defendants provided a copy 
 
         of the transcript for the industrial commissioner's file.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 7, 1984, that 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of some temporary disability 
 
         during a period of recovery.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
              $203.16 per week.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
              
 
              That defendants make no claim for credit for benefits paid 
 
         under an employee nonoccupational group health plan prior to 
 
         hearing.
 
         
 
              That defendants have paid and are entitled to a credit for 
 
         77 3/7 weeks of workers' compensation benefits paid prior to 
 
         hearing at the rate of $203.16 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
              
 
              Whether the injury was the cause of permanent disability.
 
              
 
              Whether claimant is entitled to temporary disability 
 
         benefits for temporary total disability or healing period 
 
         disability during a period of recovery.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, whether claimant is entitled to scheduled 
 
         member benefits or industrial disability benefits for.an injury 
 
         to the body as a whole.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 46 years old at the time of the injury and 50 
 
         years old at the time of the hearing.  He completed the 10th 
 
         grade of high school and then started to work at age 16.  He 
 
         received average grades in school.  Claimant obtained his G.E.D. 
 
         through Western Iowa Tech approximately one year prior to 
 
         hearing. Otherwise, he has had no formal education or training 
 
         since 10th grade, except a short course at Western Iowa Tech on 
 
         how to obtain employment and the course of study to obtain his 
 
         G.E.D.
 
         
 
              Claimant's early employments include custom farming, 
 
         grocery clerk, auto body repairing and ditch dredging.  
 
         Claimant then took a permanent job with a food processing plant 
 
         and worked there for approximately 21 years.  His jobs there 
 
         included production work, freight handling and freight elevator 
 
         operator, honey processor, pancake flour mixer, shipping and 
 
         receiving clerk and working supervisor training the people who 
 
         were working with him.  Claimant testified that the only job he 
 
         performed, up to the time of hearing, which did not require a 
 
         great deal of physical strength and manual labor was a quality 
 
         control responsibility which he performed along with his heavy 
 
         work jobs for the food processing company for approximately 15 
 
         years. Claimant said that of all of these former jobs, the only 
 
         one he could now perform was the quality control job of 
 
         laboratory testing food products.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When the food processing plant closed, claimant went to work 
 
         for a baking company for three years, between 1977 and 1980.  At 
 
         the baking company he was employed as a line supervisor, mixing 
 
         ingredients and preparing baked goods.  Claimant said that about 
 
         three-fourths of the work was manual labor, which he could not 
 
         perform now.  In 1980, claimant started to work for employer as a 
 
         utility man.  Employer is in the business of processing soybeans 
 
         and has operated under three different names--Farmland 
 
         Industries, Boone Valley and Ag Processing.  Employer extracts 
 
         the oil from soybeans and produces animal feeds with the 
 
         remaining product. Claimant testified that the utility man job 
 
         involved a variety of tasks, all of which generally required 
 
         physical strength and manual labor as well as climbing 
 
         (transcript pages 43 & 44).
 
         
 
              Claimant testified that in September of 1983, while employed 
 
         as a janitor and grounds keeper for this employer, he injured his 
 
         right shoulder lifting a very heavy bag of watermelon rinds and 
 
         debris out of a 55 gallon drum in the lunch room.  Claimant 
 
         related that he was lifting the bag with his right hand and arm, 
 
         which is his dominant hand and arm (tr. p. 99), and he was using 
 
         his left hand and arm to hold a bag away from the rough top edge 
 
         of the barrel, when he felt something give in his right shoulder. 
 
         It sounded like you took a piece of stick or a branch from a tree 
 
         and cracked it.  Claimant said that he did not see a doctor.  He 
 
         continued to work without loss of time.  He testified that he 
 
         fully recovered from this injury in December of 1983 (tr. pp. 
 
         44-48).
 
         
 
              The instant injury occurred on February 7, 1984.  Claimant 
 
         was unloading 50 pound bags of water softening salt.  A kid up in 
 
         the middle of the truck hollered, catch.  Claimant looked up and 
 
         saw a bag of salt coming at him, put his leg behind him and 
 
         caught it.  The bag hit him chest high, rolled over his right 
 
         shoulder and knocked the wind out of him.  The right shoulder 
 
         kept getting worse after that as each day went by (tr. pp. 
 
         48-52).
 
         
 
              Claimant testified that he worked the following day, 
 
         February 8, 1984.  He then sought medical care on February 9, 
 
         1984, and completed a medical form for employer who sent him to 
 
         see Rex Morgan, M.D.  Dr. Morgan took claimant off work on 
 
         February 10, 1984, and instructed him to wear a shoulder 
 
         immobilizer for two weeks.  X-rays of the right shoulder were 
 
         negative.  Dr. Morgan diagnosed bursitis of the right shoulder.  
 
         Dr. Morgan then referred claimant to John J. Dougherty, M.D., an 
 
         orthopedic surgeon (tr. pp. 53-55; joint exhibit 2).
 
         
 
              Claimant testified that Dr. Dougherty tried cortisone 
 
         injections and eventually operated on claimant's right shoulder 
 
         on May 11, 1984 (tr. pp. 55 & 56).  Claimant displayed a three 
 
         and one-half to four inch surgical scar across the anterior 
 
         portion of his right shoulder horizontally (tr. p. 51).  Dr. 
 
         Dougherty referred claimant to Robert H. Cofield, M.D., an 
 
         orthopedic surgeon at the Mayo Clinic who specializes in 
 
         shoulders (jt. ex. 10).  Claimant testified that he last saw Dr. 
 
         Dougherty in late 1985 and that he last saw Dr. Cofield in 1986 
 
         (tr. p. 57).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A review of the medical evidence is as follows.
 
         
 
              Dr. Dougherty first saw claimant on February 22, 1984.  He 
 
         diagnosed contusion of the right shoulder superimposed upon a 
 
         degenerative arthritis of the AC joint (jt. ex. 17, p. 14). 
 
         Claimant was injected with cortisone and given x-ray treatments 
 
         (jt. ex. 17, pp. 12 & 13).  A tomogram on April 17, 1984, showed 
 
         erosion along the medial aspect of the acromion process and 
 
         distal aspect of the clavicle with changes of post traumatic 
 
         osteolysis (jt. ex. 1).
 
         
 
              Dr. Dougherty performed a resection of the outer end of the 
 
         clavicle on May 10, 1984 (jt. ex. 17, p. 11; jt. ex. 3).  In June 
 
         and July of 1984, claimant felt some better and his continuing 
 
         complaints were treated with physical therapy (jt. ex. 17, p. 
 
         10). In August of 1984, stressing his abductors continued to give 
 
         him pain and a TENS unit was obtained (jt. ex. 17, pp. 8 & 9).  
 
         X-rays on August 14, 1984, were negative and an arthrogram on 
 
         September 16, 1984, was normal (ex. 5).  Dr. Dougherty referred 
 
         claimant to the Mayo Clinic for consultation because of his 
 
         continuing complaints of pain (ex. 17, p. 7).
 
         
 
              Claimant was seen at the Mayo Clinic on January 14, 1985, by 
 
         Robert H. Cofield, M.D., who diagnosed mild residua to a diffuse 
 
         rotator cuff tendonitis.  Surgery was not recommended.  Dr. 
 
         Cofield said claimant will improve, if not completely recover, 
 
         with time.  Home exercises were recommended (jt. ex. 7, pp. 1 & 
 
         7).  The Mayo Clinic physician said that claimant had not reached 
 
         maximum medical recovery and it was unlikely that he would have 
 
         any substantial physical impairment.  Claimant was referred back 
 
         to his local physician to determine his return to work date (ex. 
 
         7, p. 4; ex. 8).
 
         
 
              On March 18, 1985, Dr. Dougherty commented in his notes that 
 
         he watched claimant walk down the hall and noticed that he holds 
 
         his arm limp at his side (jt. ex. 17, p. 6).  By April of 1985, 
 
         Dr. Dougherty was at a loss to know what to do about claimant's 
 
         complaints of pain when he moves his shoulder (ex. 17, p. 5).  On 
 
         April 15, 1985, Dr. Dougherty told the insurance company he could 
 
         not give them a return to work date and that he had not yet 
 
         attempted to determine disability.  He said that he was in favor 
 
         of letting claimant try to perform some light work (ex. 9).
 
         
 
              On June 20, 1985, Dr. Dougherty's office notes show that he 
 
         talked to Cecilia Blaskovich, a vocational rehabilitation 
 
         consultant, and signed papers for her.  He said that he thought 
 
         claimant could get back into the work force.  Nothing else is 
 
         really indicated.  He said he felt claimant had reached maximum 
 
         medical improvement and that he would have to figure out his 
 
         disability.  He added that Blaskovich had found claimant painting 
 
         his house at the lower level and found him to be well tanned (jt. 
 
         ex. 17, p. 4).  Dr. Dougherty noted that he gave Blaskovich a 
 
         signed statement that claimant had reached maximum healing on 
 
         June 20, 1985 (defendants' ex. I).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On August 15, 1985, K.M. Keane, M.D., an orthopedic surgeon, 
 
         reported that claimant grimaced while trying to raise his 
 
         shoulder, but does abduct and has symmetrical abduction.  Dr. 
 
         Keane diagnosed an impingement syndrome of the right shoulder 
 
         associated with some degree of injury to the rotator cuff.  The 
 
         doctor did not discuss healing period and did not determine an 
 
         impairment award (jt. ex. 10).
 
         
 
              On September 10, 1985, A.J. Callaghan, M.D., a general 
 
         surgeon, evaluated claimant and reported that claimant has pain 
 
         in his right shoulder if he lifts heavy objects.  He also 
 
         reported numbness and tingling.  Dr. Callaghan said that claimant 
 
         was unable to do strenuous work at that time.  He found marked 
 
         crepitation over the right shoulder joint, some loss of abduction 
 
         and pain on rotation or any motion of the right shoulder.  Dr. 
 
         Callaghan did not discuss healing period or maximum medical 
 
         improvement, but did find it possible to rate claimant at that 
 
         time as follows:  "I would presume that this man, being right 
 
         handed and a laborer, would have approximately 50% loss of use of 
 
         the right shoulder."  (claimant's exhibits a & c).
 
         
 
              On October 10, 1985, Dr. Dougherty summarized his treatment 
 
         of claimant--the resection of the outer clavicle, extensive 
 
         physiotherapy, negative arthrogram, that Mayo Clinic had 
 
         recommended against an arthroscope and that an EMG was negative. 
 
         Dr. Dougherty said he did not understand why claimant had not 
 
         improved.  He said that his condition is probably permanent (jt. 
 
         ex. 12).  On October 28, 1985, Dr. Dougherty approved a job 
 
         description for utility labor for claimant to return to work with 
 
         employer (jt. ex. 13) and said that patient is able to return to 
 
         work as of this date (jt. ex. 14).
 
         
 
              On December 9, 1985, claimant complained to Dr. Dougherty of 
 
         some pain on internal and external rotation.  He complained of 
 
         tenderness in the anterior and posterior aspects of his right 
 
         shoulder.  Flexing the right arm against resistance caused pain 
 
         almost like a bicipital tendonitis (ex. 17, p. 2).
 
         
 
              Claimant last saw Dr. Dougherty on December 30, 1985.  He 
 
         was tender anteriorly and posteriorly.  Stressing the abductors 
 
         gave him discomfort.  He did have some crepitation.  He did not 
 
         have a full range of motion, but it was not too bad.  Rotation 
 
         still bothered him (jt. ex. 7, p. 2).,
 
         
 
              On January 22, 1986, Dr. Dougherty told the insurance 
 
         carrier that claimant should be seen again at the Mayo Clinic to 
 
         see if an arthroscopy was warranted.  Dr. Dougherty said that it 
 
         doesn't appear that claimant will ever be able to get back to 
 
         work where he was working before.  Dr. Dougherty did not believe 
 
         that claimant's permanent partial disability would be great 
 
         because he did not seem to have any restriction of motion (ex. 
 
         15).
 
         
 
              The record contains a short note from Dr. Dougherty, dated 
 
         March 12, 1986, addressed "to whom it may concern."  This note 
 
         states that he saw claimant on February 22, 1984, for an injury 
 
         that occurred on February 7, 1984, and that claimant has been 
 
         disabled since that time and remains disabled (cl. ex. d).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Also, on March 26, 1986, Dr. Cofield wrote the following 
 
         message to claimant:
 
         
 
                   The electromyographic test was quite detailed, as you 
 
              recall, and did show some abnormalities.  One of the 
 
              shoulder muscles was reinnervated in a slightly abnormal 
 
              pattern suggesting that there was nerve involvement in 
 
              association with your problem.
 
         
 
                   Understanding your history, this would seem to be a 
 
              contusion or a stretching-type of problem which has largely 
 
              but not completely resolved.
 
         
 
                   This will contribute to the discomfort in your 
 
              shoulder. A major source of discomfort, as we talked about, 
 
              is the continuing inflammation and tightness of the tendons 
 
              and joint capsule of your shoulder.
 
         
 
         (cl. ex. f)
 
         
 
              Also, on March 26, 1984, Dr. Cofield wrote to Dr. Dougherty. 
 
         He said that he saw claimant a second time in late February of 
 
         1986.  Dr. Cofield said that claimant had not changed since his 
 
         earlier visit.  Claimant complains of anterior and superior 
 
         shoulder symptoms, worse with use and which occur at night too. 
 
         Dr. Cofield said that he would classify claimant's pain as 
 
         intermittent and moderate.  He also noted that claimant 
 
         experienced some dysesthesias of the ulnar boarder of his hand.  
 
         X-rays showed osteophyte formation at the acromioclavicular joint 
 
         and nothing more.  The physician diagnosed continuing 
 
         inflammation of the rotator cuff with incompletely resolved 
 
         periarthritis of the right shoulder (cl. ex. e).
 
         
 
              On June 9, 1986, Dr. Cofield reported that claimant had 
 
         continuing right shoulder difficulties.  He said claimant had a 
 
         continuing inflammation of the rotator cuff tendons with an 
 
         incompletely resolved periarthritis of the right shoulder.  His 
 
         examination and systems had not changed since his earlier visit. 
 
         Claimant still had aching with use of the shoulder, mild diffuse 
 
         muscle atrophy and he experienced pain at the extremes of motion 
 
         with abduction, external rotation and internal rotation.  His 
 
         muscles were strong.  His motion was smooth.  X-rays, as before, 
 
         showed mild acromioclavicular arthritis and nothing more.  Dr. 
 
         Cofield concluded his report with an impairment rating and his 
 
         restrictions:
 
         
 
                   His problem has been continuing for slightly less than 
 
              three years.  Although patients with this problem tend to 
 
              recover fully, it would be my impression that he does have a 
 
              permanent physical impairment.  I would estimate that as 
 
              eight percent of the right upper extremity.
 
         
 
                   He does have physical limitations which include 
 
              repetitive arm movements, more than moderate lifting below 
 
              the level of the chest, and more than occasional light 
 
              lifting at chest level or above.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         (jt. ex. 16)
 
         
 
              On June 23, 1986, Dr. Cofield said that he could not predict 
 
         when claimant could return to heavy manual labor.  He pointed out 
 
         that he had earlier stated that claimant could return to work 
 
         within his restrictions on June 9, 1986 (cl. ex. g).
 
         
 
              On June 17, 1987, Dr. Cofield responded to a request from 
 
         claimant's counsel and wrote as follows:  "The structures that 
 
         Mr. Al L. Hogancamp of Sioux City, Iowa, has involved include the 
 
         right rotator cuff, the right glenohumeral joint capsule, the 
 
         right subacromial and subdeltoid bursa, and the right 
 
         acromioclavicular joint." (cl. ex. h).
 
         
 
              On May 13, 1987, Dr. Dougherty recorded the note regarding a 
 
         consultation with claimant's counsel as to whether this injury 
 
         was to the arm or to the shoulder.  Dr. Dougherty commented that 
 
         the injury involved the connecting tissue between the scapula and 
 
         the humerus (jt. ex. 17, p. 2).
 
         
 
              On July 15, 1987, Dr. Dougherty recorded a conference with 
 
         defendants' counsel and commented that he believed that 
 
         claimant's complaints after the clavicle resection were probably 
 
         related to being hit with the bag of salt on February 7, 1984, 
 
         rather than the lifting incident of the watermelon rinds in 
 
         September of 1983 (ex. 17, p. 1).
 
         
 
              Dr. Dougherty marked certain medical diagrams of the 
 
         shoulder, showing the location of the glenohumeral capsule, the 
 
         acromioclavicular joint and the rotator cuff (cl. exs. i & j).
 
         
 
              Claimant testified that he tried to return to work in May of 
 
         1985, cleaning up the prep building, but after three hours he had 
 
         to quit and left in tears (tr. p. 58).  Claimant testified that 
 
         he tried to work again a few months later, in September of 1985 
 
         and was told to blow down the prep building with an air hose by 
 
         climbing on the tops of the machinery as high as 25 feet above 
 
         the ground and by climbing on ledges which are in the walls.  
 
         Claimant said that he told employer that he was unable to do this 
 
         job and that he went home (tr. pp. 59-65).  Leo Pick, his 
 
         supervisor, denied that claimant was asked to blow down the prep 
 
         building (tr. p. 169).  Claimant testified that he made a third 
 
         attempt to return to work for employer in November of 1985.  He 
 
         said that he sorted blueprints, a clerical job, for approximately 
 
         two days. When he came back to work on Monday, he was told to 
 
         sweep out and clean the meal building and prep building, which he 
 
         did.  Claimant testified that he was too sore to work on the 
 
         following day and he was told by the plant manager to meet him at 
 
         the hospital. Claimant met the plant manager and Dr. Dougherty at 
 
         the hospital. Dr. Dougherty told claimant to take the balance of 
 
         that day off but to report in to work the following day.  
 
         Claimant testified that he was still sore on the following day 
 
         and called in sick. Claimant related that he was told that when 
 
         he called in sick it was taken as a quit and that he was 
 
         terminated (tr. pp. 65-70).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified that from the time he first saw Dr. 
 
         Morgan until the time he concluded seeing Dr. Cofield and Dr. 
 
         Dougherty, that his shoulder pain never did improve very much.  
 
         In the court room, claimant demonstrated that he could only raise 
 
         his right arm to approximately shoulder height without pain.  
 
         Claimant related that he had pain in the front and the back of 
 
         his shoulder.  He said that his right arm symptoms would be 
 
         described as discomfort. Claimant denied that he could perform 
 
         any of his former jobs that required physical strength and 
 
         dexterity with his right arm (tr. pp. 70-73).  Claimant testified 
 
         that he was aware of the fact that Dr. Dougherty had approved the 
 
         job duties for his return to work in October of 1985, but he was 
 
         not aware of the fact that Dr. Callaghan had approved of them 
 
         also.  Claimant testified that after he was terminated by 
 
         employer he drew unemployment compensation (tr. p. 92).  Claimant 
 
         testified that he inquired about and applied for numerous jobs, 
 
         but never was hired and remained unemployed at the time of the 
 
         hearing (tr. pp. 94-99). Claimant granted to defendants' counsel 
 
         that he had some prior shoulder problems in 1981 and 1982 (tr. 
 
         pp. 102-105; def. exs. X & XI), but claimant asserted that he did 
 
         not suffer any residual effects from these occurrences.
 
         
 
              Blaskovich testified that she is a rehabilitation nurse and 
 
         a vocational rehabilitation consultant.  She is a registered 
 
         nurse (RN) and a certified rehabilitation insurance specialist 
 
         (CRIS). She was hired by the insurance company to see if she 
 
         could help claimant become employed again.  She started to work 
 
         with claimant in May of 1985.  Initially, she suggested that 
 
         claimant complete his G.E.D. to improve his employability.  
 
         Blaskovich testified that claimant initially was reluctant to do 
 
         it.  The first report of Blaskovich recorded that claimant lived 
 
         in a comfortable home which was excellently maintained inside and 
 
         out.  She noted that his wife works and makes good money (def. 
 
         ex. II, p. 1).
 
         
 
              Blaskovich testified that she contacted job service in Sioux 
 
         City and learned that claimant could earn approximately $5 to $6 
 
         per hour.  He was earning $8 per hour from employer when 
 
         terminated (def. ex. II, pp. 1-5).  The witness identified nine 
 
         job descriptions that were approved for claimant to perform by 
 
         Dr. Dougherty with his signature on each separate sheet.  These 
 
         jobs were automobile sales person, insurance investigator, 
 
         security guard, bill collector, cashier-checker-counter person, 
 
         sorter-pricer, inventory clerk, sales promotion representative 
 
         and shipping and receiving clerk (def. ex. III, pp. 1-9).  
 
         Blaskovich testified that Dr. Dougherty said that each of these 
 
         jobs was within the physical restrictions of no work above the 
 
         right shoulder and were classified as medium or light weight work 
 
         (tr. pp. 113-121).  She testified that Dr. Dougherty reviewed 
 
         each one of these job descriptions and approved each of these 
 
         jobs (tr. pp. 122 & 123).  Blaskovich testified that one obstacle 
 
         against claimant's returning to work for employer was the fact 
 
         that he believed that returning to a utility job instead of his 
 
         former janitor job, was a demotion and he was not happy about the 
 
         prospect of it (tr. p. 123).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Blaskovich said she observed claimant's activities at his 
 
         home.  His home and yard were in very good repair and kept up 
 
         very neatly.  Claimant told her that he cuts the lawn and takes 
 
         care of the yard.  He painted the fences and the garage.  He does 
 
         the housework and the grocery shopping (tr. pp. 124-125).  
 
         Blaskovich rendered the opinion that claimant was not motivated 
 
         to return to work with employer because the utility work was a 
 
         demotion from the janitor work which was now being done by an 
 
         independent contractor.  She added that it was her opinion that 
 
         claimant seemed to be hostile toward employer (tr. p. 128).  
 
         Blaskovich testified that she gave claimant several job leads 
 
         that he could do, but she said that he did not go after them (tr. 
 
         p. 129). Claimant testified on rebuttal that he took all of these 
 
         leads to the job service office, but they refused to refer him to 
 
         these jobs because job service said he was not qualified (tr. pp. 
 
         176 & 177).
 
         
 
              Blaskovich said that she believed that claimant was 
 
         employable.  She testified that there were several janitor and 
 
         sales jobs that claimant could do that provided on the job 
 
         training.  In addition, claimant had supervisory experience.  She 
 
         said that claimant was personable, self-confident, well spoken, 
 
         soft spoken, spoke English and verbalized well (tr. pp. 130 & 
 
         131).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 7, 1984, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered 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 v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hospital Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 
 
         252 Iowa 613, 106 N.W.2d 591.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a 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 impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121 125 N.W.2d 251, 257.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he is entitled to temporary disability 
 
         benefits during a period of recovery from February 10, 1984, when 
 
         Dr. Morgan took him off work until June 20, 1985, when Dr. 
 
         Dougherty said that he thought claimant could get back into the 
 
         work force.  Nothing else was really indicated, claimant had 
 
         reached maximum medical improvement and Dr. Dougherty said he 
 
         would have to figure out his disability (jt. ex. 17, p. 4).  June 
 
         20, 1985, is the same day that Dr. Dougherty signed the slip for 
 
         Blaskovich that claimant had attained maximum healing (def. ex. 
 
         I).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The healing period generally terminates at the time 
 
         attending physician determines that the employee has recovered as 
 
         far as possible from the effects of the injury.  Armstrong Tire & 
 
         Rubber Co. v. Kubli, (Iowa App.), 312 N.W.2d 60, 65 (Iowa 1981).  
 
         Stated another way, it is only at the point at which a disability 
 
         can be determined that the disability award can be made.  Until 
 
         such time, healing benefits are awarded the injured worker.  
 
         Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa 
 
         App. 1984). It was on June 20, 1985, that Dr. Dougherty 
 
         determined claimant had recovered as far as possible from the 
 
         effects of the injury and talked of making an impairment rating.  
 
         Claimant testified that his shoulder pain never did improve from 
 
         the time he first saw Dr. Morgan.
 
         
 
              The fact that Dr. Callaghan gave claimant a rating at a 
 
         later date, September 10, 1985, is not significant because Dr. 
 
         Callaghan was not a treating physician and he had no way of 
 
         knowing whether claimant had reached maximum medical improvement 
 
         prior to that time or not (cl. ex. a & c).  The fact that Dr. 
 
         Dougherty gave a slip at a later date, October 29, 1985, stating 
 
         that claimant was able to return to work as of that date, is not 
 
         significant.  He was simply repeating that he knew that claimant 
 
         had been at maximum medical improvement since June 20, 1985.  
 
         This return to work slip appears to have been given in 
 
         conjunction with the return to work of November 5, 1985, 
 
         orchestrated by Blaskovich by the mutual agreement and 
 
         concurrence of all of the various parties--claimant, the 
 
         insurance company, the employer and Dr. Dougherty (def. Ex. 
 
         VIII).  The fact that Dr. Dougherty issued a statement at a later 
 
         date, on March 12, 1986, to whom it may concern, that claimant 
 
         was first seen in his office on February 22, 1984, for an injury 
 
         that occurred on February 7, 1984, and that claimant has been 
 
         disabled since this time and remains disabled (cl. ex. d), is not 
 
         inconsistent with Dr. Dougherty's statement that maximum medical 
 
         improvement was attained on June 20, 1985.  Dr. Dougherty said on 
 
         June 20, 1985, that claimant had reached maximum medical 
 
         improvement and that he would have to figure out the disability.  
 
         Thus, claimant was considered by Dr. Dougherty to be permanently 
 
         disabled at that time, but, nevertheless, claimant had reached 
 
         maximum medical improvement on June 20, 1985 (jt. ex. 17, p. 4).
 
         
 
              The reason why Dr. Dougherty never issued an impairment 
 
         rating was not brought out in the evidence.  Since he was 
 
         retained by employer, it is possible that employer never 
 
         requested him to give an impairment rating or possibly even 
 
         instructed him not to give one.  Dr. Dougherty talked about 
 
         permanent disability more than once, but he never did rate it.
 
         
 
              Even though Dr. Cofield said on March 26, 1986, that 
 
         claimant should continue with home physical therapy, this does 
 
         not negate the fact that Dr. Dougherty determined claimant had 
 
         reached maximum medical improvement on June 20, 1985 (cl. ex. e & 
 
         f). Frequently patients are required or requested to continue 
 
         home physical therapy or exercises for long, periods of time 
 
         after they have reached maximum medical improvement.  Dr. Cofield 
 
         also said claimant's condition had not changed essentially since 
 
         he saw claimant in January of 1985, which supports Dr. 
 
         Dougherty's determination of maximum medical improvement on June 
 
         20, 1985 (cl. ex. e).  Dr. Cofield delegated the return to work 
 
         date to Dr. Dougherty on January 14, 1985 (jt. ex. 7, p. 4 & jt. 
 
         ex. 8).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant contends, finally, that his healing period should 
 
         extend to June 9, 1986, when Dr. Cofield rated claimant (jt. ex. 
 
         16).  This is not correct because, (1) Dr. Cofield said that 
 
         claimant's condition and his symptoms had not really changed much 
 
         since his earlier visit in January of 1985 and (2) Dr. Cofield 
 
         was not claimant's primary treating physician who saw him on a 
 
         regular basis in order to have the ability to determine the date 
 
         that claimant had attained maximum medical improvement and (3) 
 
         Dr. Cofield delegated the return to work date to Dr. Dougherty. 
 
         Therefore, the date of June 9, 1986, when Dr. Cofield just 
 
         happened to issue an impairment rating, which does not appear to 
 
         be in conjunction with any physical examination that he had 
 
         performed around that date, is no indication of when claimant 
 
         reached maximum medical improvement.
 
         
 
              A healing period for claimant's shoulder injury which 
 
         occurred on February 7, 1984, that extends to June 20, 1985, is a 
 
         period of time which approaches a year and one-half, and appears 
 
         to be adequate for a shoulder injury of this nature based on 
 
         agency expertise [Iowa Administrative Procedure Act SS17A.14(5)]. 
 
         Consequently, it is determined that claimant is entitled to 
 
         temporary disability benefits during the period beginning on 
 
         February 10, 1984, when Dr. Morgan took claimant off work, until 
 
         June 20, 1985, when Dr. Dougherty stated that claimant had 
 
         reached maximum medical improvement.
 
         
 
              Claimant did sustain the burden of proof that the injury was 
 
         the cause of permanent disability.  Employer, Dr. Morgan, Dr. 
 
         Dougherty, Dr. Callaghan, Dr. Keane, Dr. Cofield and the 
 
         insurance carrier have all proceeded on the basis of the history 
 
         of the work injury that claimant gave for the injury that 
 
         occurred on February 7, 1984.  No one has suggested any other 
 
         cause for either claimant's injury or disability.
 
         
 
              It is true that claimant injured his right shoulder in 
 
         September of 1983 lifting heavy watermelon rinds out of a 55 
 
         gallon drum.  Claimant testified that he had fully recovered from 
 
         this incident and had worked for a long period of time without 
 
         any further difficulties.  Furthermore, the medical practitioners 
 
         in this case were aware of this incident, mentioned it and did 
 
         not attribute any of claimant's disability to this prior injury.
 
         
 
              It was also pointed out that claimant had two prior,medical 
 
         claims.  One involved treatment with Dr. J.P. McCarthy, for an 
 
         injury on August 4, 1981, and the other involved treatment with 
 
         Dr. Cliff J. Meylor for an injury which occurred on August 30, 
 
         1982 (def. exs. X & XI).  However, neither of these injuries were 
 
         linked with claimant's current disability, nor was there any 
 
         evidence that claimant sustained any disability as the result of 
 
         any of these previous injuries.
 
         
 
              There is evidence that claimant had arthritis prior to this 
 
         injury.  Dr. Cofield stated that claimant had continuing 
 
         inflammation of the rotator cuff tendons with an incompletely 
 
         resolved periarthritis of the right shoulder (jt. ex. 16).  Dr. 
 
         Cofield also mentioned that x-rays showed some residual 
 
         osteophyte formation at the acromioclavicular joint and nothing 
 
         more (cl. ex. e).  Nevertheless, defendants take claimant the way 
 
         they find him and are liable for any aggravation of this 
 
         preexisting condition irrespective of whether the preexisting 
 
         condition is caused by degeneration or prior injuries (Lawyer and 
 
         Higgs, Iowa Workers' Compensation--Law & Practice, Section 4-2, 
 
         p. 21).  Therefore, it is determined that the injury of February 
 
         7, 1984, is the cause of claimant's permanent impairment and 
 
         disability in this case.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury to the body as a 
 
         whole.  Dr. Morgan diagnosed bursitis of the shoulder and he 
 
         treated a shoulder injury (jt. ex. 2).  Dr. Dougherty diagnosed 
 
         contusion of the right shoulder superimposed upon degenerative 
 
         arthritis of the acromioclavicular joint (jt. ex. 17, p. 14).  He 
 
         resected the outer end of the clavicle (jt. ex. 17, p. 17).  Both 
 
         the clavicle and the acromioclavicular joint are beyond the upper 
 
         end of the humerus and are parts of the body as a whole.  Dr. 
 
         Dougherty has further illustrated that these are parts of the 
 
         body as a whole by his markings on the medical diagrams (cl. ex. 
 
         i, p. 3 & j, p. 2).  When asked to specify, Dr. Dougherty 
 
         specifically stated that the injury was to the connecting tissue 
 
         between the scapula and the humerus (jt. ex. 17, p. 2).  Dr. 
 
         Callaghan talked only in terms of the shoulder and did not talk 
 
         in terms of the arm (cl. exs. a & c).  Dr. Keane diagnosed 
 
         impingement syndrome of the right shoulder (jt. ex. 10).  Dr. 
 
         Cofield diagnosed diffuse rotator tendonitis (jt. ex. 7; jt. ex. 
 
         16).  When asked to specify, Dr. Cofield described the affected 
 
         body parts as the rotator cuff, glenohumeral joint capsule, 
 
         subacromial and subdeltoid bursa, and the right acromioclavicular 
 
         joint (cl. ex. h).  These are all shoulder parts or connecting 
 
         parts between the humerus and the shoulder.
 
         
 
              Therefore, claimant has clearly sustained an injury to his 
 
         right shoulder.  All of the treatment was to the right shoulder. 
 
         The shoulder is the term used in describing the injury and 
 
         writing about it in all of the medical reports.  The surgery was 
 
         shoulder surgery.  The clavicle, the acromioclavicular joint, the 
 
         rotator cuff, the glenohumeral joint capsule, the subacromial and 
 
         subdeltoid bursa are all parts of the shoulder.  Claimant 
 
         described pain in the anterior and posterior portions of his 
 
         shoulder.  The fact that Dr. Cofield rated the injury as an 
 
         injury to the right upper extremity does not mean that this a 
 
         scheduled member injury.  The right upper extremity goes beyond 
 
         the arm and includes the shoulder.  Shoulder injuries are 
 
         generally considered to be injuries to the body as a whole.  
 
         Doctors commonly and typically rate shoulder injuries in terms of 
 
         the upper extremity and convert the measurements to the body as a 
 
         whole.  Claimant's impairment is his inability to work above 
 
         right shoulder level and to perform heavy lifting with the right 
 
         hand and arm above shoulder level.  These are functions of the 
 
         entire shoulder and the arm and not just the arm by itself.  The 
 
         derangement then is in the shoulder and not just the arm.  The 
 
         injury is manifested by the use of the arm, but the location of 
 
         the disability is in the shoulder which includes both parts of 
 
         the arm and the body as a whole.  Therefore, it is determined 
 
         that claimant's injury to the right shoulder is an injury to the 
 
         body as a whole.  Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 
 
         38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa 
 
         Industrial Commissioner Report 281 (1982); Godwin v. Hicklin GM 
 
         Power, II Iowa Industrial Commissioner Report 170 (1981); Lauhoff 
 
         Grain v. McIntosh, 395 N.w.2d 834 (Iowa 1986).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The next issue is the amount of industrial disability, if 
 
         any, which has been sustained by claimant.  Dr. Morgan, Dr. Keane 
 
         and Dr. Dougherty did not assess a permanent functional 
 
         impairment rating.  Dr. Callaghan arrived at "50 percent loss of 
 
         use of the right shoulder" based on marked crepitation, loss of 
 
         abduction and pain on rotation or any motion of the shoulder (cl. 
 
         ex. a & c). Dr. Cofield estimated an 8 percent rating of the 
 
         right upper extremity (jt. ex. 16).  Eight percent of the upper 
 
         extremity converts to 5 percent of the body as a whole (Guides to 
 
         the Evaluation of Permanent Impairment, second edition, table 20, 
 
         page 23).  In addition to the impairment rating, Dr. Cofield 
 
         issued significant restrictions of, (1) no repetitive arm 
 
         movements, (2) no more than moderate lifting below the level.of 
 
         the chest and (3) no more than occasional lifting above chest 
 
         level (jt. ex. 16). Dr. Cofield's opinion in this case appears to 
 
         be more reliable than Dr. Callaghan.  It is more reasonable and 
 
         is based upon a more complete examination.  Rockwell Graphics 
 
         Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  
 
         Furthermore, a doctor's expertise may accord his testimony 
 
         greater weight.  Reiland v. Palco, Inc., Thirty-second Biennial 
 
         Report of the Industrial Commissioner 56 (1975); Dickey v. ITT 
 
         Continental Baking Co., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 89 (1979).  Dr. Keane stated that Dr. 
 
         Cofield was the acknowledged expert of shoulder injuries at the 
 
         Mayo Clinic (jt. ex. 10).
 
         
 
              On May 25, 1985, Dr. Dougherty restricted claimant to light 
 
         duty work, a 25 pound lifting restriction and no overhead work 
 
         with the right arm (def. ex. II, p. 5).  On October 14, 1985, Dr. 
 
         Dougherty restricted claimant to below shoulder level work and 
 
         imposed a lifting restriction of 15 pounds, but no lifting above 
 
         chest level (jt. ex. 13).  According to Blaskovich, Dr. 
 
         Dougherty's final restrictions were simply no work above the 
 
         right shoulder and a weight lifting preference of the light to 
 
         medium category (tr. pp. 120 & 121).  Another factor to be 
 
         considered in determining industrial disability in this case, is 
 
         the fact that claimant demonstrated electromyographic evidence 
 
         for a cervical radiculopathy.  Claimant complained to the doctors 
 
         of numbness of the ulnar aspect of his right hand and arm (cl. 
 
         ex. e).  Dr. Cofield explained to claimant that his 
 
         electromyographic tests did show some abnormalities which 
 
         suggested there was some nerve involvement in association with 
 
         claimant's problem.  Dr. Cofield added that this will contribute 
 
         to the discomfort in his shoulder (cl. ex. f).
 
         
 
              Claimant testified several times that practically all of his 
 
         former employments required physical strength and manual labor. 
 
         Claimant is now limited to lifting no more than light to medium 
 
         weights.  He is not to work above shoulder level with the right 
 
         arm.  Due to these limitations a significant portion of the job 
 
         market has been foreclosed to claimant.  Michael v. Harrison Co., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         220 (appeal decision January 30, 1979).  Dr. Dougherty said on 
 
         January 22, 1986, that claimant would not be able to return to 
 
         the work that he was doing before the injury (jt. ex. 15).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even though claimant has testified to at least contact with 
 
         a large number of prospective employers, it was not demonstrated 
 
         that he exhibited a strong effort to be employed.  Many of these 
 
         contacts were required in order to obtain unemployment insurance 
 
         benefits.  On the contrary, it would appear that claimant 
 
         resisted being employed, in spite of extraordinary efforts and 
 
         expense on the part of the insurance carrier and employer to 
 
         provide work for claimant within his restrictions and within his 
 
         capabilities. Employers are responsible for the reduction in 
 
         earning capacity caused by the injury.  They are not responsible 
 
         for a reduction in actual earnings because the the employee 
 
         resists returning to work.  Williams v. Firestone Tire and Rubber 
 
         Co., III Iowa Industrial Commissioner Report 279 (1982).  Since 
 
         claimant has not made a serious effort to be employed, there is a 
 
         paucity of evidence in order to determine what claimant can and 
 
         can not do within the boundaries of his disability and 
 
         restrictions. Schofield v. Iowa Beef Processors, II Iowa 
 
         Industrial Commissioner Reports 334, 336 (1981).
 
         
 
              Blaskovich testified that claimant maintained his real and 
 
         personal property in excellent condition.  He painted the garage 
 
         and the fence.  He mows the lawn and maintains the yard.  He 
 
         performs the housework and shops for and carries the groceries. 
 
         This lends support to Blaskovich's opinion that claimant was not 
 
         motivated to return to work for employer because he thought that 
 
         utility work would be a demotion from janitor work and that 
 
         claimant was not motivated to return to work in the employment 
 
         market because claimant's wife worked and had a good income and 
 
         he was leading a very comfortable life without being employed.
 
         
 
              An employee making a claim for industrial disability will 
 
         benefits from some attempt to find work.  Hild v. Natkin & Co., I 
 
         Iowa Industrial Commissioner Report 144 (appeal decision 1981); 
 
         Beintema v. Sioux City Engineering Co., II Iowa Industrial 
 
         Commissioner Report 24 (1981); Cory v. Northwestern States 
 
         Portland Cement Co., Thirty-third Biennial Report of the 
 
         Industrial Commissioner 104 (1976).
 
         
 
              Claimant, at approximately age 51, who received average 
 
         grades in school, and has attained a G.E.D., and has a wealth of 
 
         experiences in his work background, should be able to find some 
 
         employment in the greater Sioux City area within his capabilities 
 
         and limitations as indicated by Blaskovich.
 
         
 
              Therefore, based upon the foregoing considerations and all 
 
         of the factors used to determine industrial disability it is 
 
         determined that claimant has sustained a 25 percent industrial 
 
         disability to the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore based on the evidence presented, the following 
 
         findings of fact are made.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That claimant was taken off work by Dr. Morgan on February 
 
         10, 1984.
 
         
 
              That Dr. Dougherty determined that claimant had reached 
 
         maximum medical improvement on June 20, 1985.
 
         
 
              That claimant's injury is to his shoulder and is not limited 
 
         to his arm alone.
 
         
 
              That Dr. Cofield assessed an 8 percent permanent impairment 
 
         of the right upper extremity which converts to 5 percent of the 
 
         body as a whole.
 
         
 
              That Dr. Cofield restricted claimant from repetitive work 
 
         with his right arm, to moderate lifting below chest level and 
 
         occasional light lifting at chest level or above.
 
         
 
              That Dr. Dougherty determined that claimant would not be 
 
         able to return to his former employment, which involved heavy 
 
         work. That Dr. Dougherty restricted claimant to no work above the 
 
         right shoulder level and that he should not lift more than light 
 
         to medium weights.
 
         
 
              That claimant has not seriously made a good faith effort to 
 
         be employed since the injury.
 
         
 
              That employer made some attempt to provide claimant with 
 
         employment as a utility person at their plant.
 
         
 
              That the insurance carrier provided claimant with extensive 
 
         vocational rehabilitation and job finding assistance.
 
         
 
              That claimant has sustained an industrial disability of 25 
 
         percent of the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              It is determined that claimant is entitled to 70.857 weeks 
 
         of healing period benefits from February 10, 1984, to June 20, 
 
         1985.
 
         
 
              That claimant did sustain a permanent disability as the 
 
         result of this injury.
 
         
 
              That claimant sustained an injury to the body as a whole.
 
         
 
              That claimant is entitled to 125 weeks of permanent partial 
 
         disability benefits for an industrial disability of 25 percent of 
 
         the body as a whole.
 
         
 
                                      ORDER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant seventy point eight five 
 
         seven (70.857) weeks of healing period benefits for the period 
 
         from February 10, 1984 to June 20, 1985, at the rate of two 
 
         hundred three and 16/100 dollars ($203.16) per week in the total 
 
         amount of,fourteen thousand three hundred ninety-five and 31/100 
 
         dollars ($14,395.31) commencing on February 10, 1984.
 
              
 
              That defendants pay to claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of two hundred three and 16/100 dollars ($203.16) per week in the 
 
         total amount of twenty-five thousand three hundred ninety-five 
 
         dollars ($25,395) commencing on June 20, 1985.  That defendants 
 
         are entitled to a credit for seventy-seven point four two nine 
 
         (77.429) weeks of workers' compensation benefits paid prior to 
 
         hearing at the rate of two hundred three and 16/100 dollars 
 
         ($203.16) per week in the total amount of fifteen thousand seven 
 
         hundred thirty and 48/100 dollars ($15,730.48).
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants are to file claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
              Signed and filed this 31st day of March, 1989
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Joe Cosgrove
 
         Attorney at Law
 
         400 Frances Bldg
 
         Sioux City, IA  51101
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         200 Home Federal Bldg
 
         PO Box 3086
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Sioux City, IA  51102
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       1400, 1402.40, 1802, 1803.10
 
                                       1803
 
                                       Filed March 31, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         AL HOGANCAMP,
 
         
 
              Claimant,
 
                                                 File No. 757872
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         BOONE VALLEY COOPERATIVE
 
         PROCESSING ASSOCIATION,                  D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         CRUM AND FORSTER,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1400, 1402.40
 
         
 
              The work injury was the cause of claimant's impairment and 
 
         disability.  No cause other than the history claimant gave of a 
 
         work injury was seriously suggested.
 
         
 
         1802
 
         
 
              Claimant awarded healing period from the date taken off work 
 
         until his treating physician said he had attained maximum medical 
 
         improvement.  Several other dates were discounted or eliminated 
 
         with reasons given for rejecting them.
 
         
 
         1803.10
 
         
 
              The injury was to the shoulder and therefore it was an 
 
         injury to the body as a whole.  In-depth analysis of the law 
 
         applied to the facts of this case.
 
         
 
         1803
 
         
 
              Claimant awarded 25 percent permanent partial disability 
 
         based on Mayo Clinic impairment rating of 8 percent of the right 
 
         upper extremity which converted to 5 percent of the body as a 
 
         whole.  Claimant also restricted to light to medium work and 
 
         could not return to his former employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         WAYNE PARKER,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 758539
 
         CASSADY REFRIGERATION,   :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         IOWA CONTRACTORS WORKERS'     :
 
         COMPENSATION GROUP, :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
          The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         August 3, 1989 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of June, 1991.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            CLAIR R. CRAMER
 
                    ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Toby Swanson
 
         Attorney at Law
 
         1922 Ingersoll Ave., Ste B-1
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Ann M. Ver Heul
 
         Mr. John A. Templer, Jr.
 
         Mr. Dean C. Mohr
 
         Attorneys at Law
 
         3737 Woodland, Ste 437
 
         West Des Moines, Iowa 50265
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed June 28, 1991
 
            Clair R. Cramer
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WAYNE PARKER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 758539
 
            CASSADY REFRIGERATION,   :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA CONTRACTORS WORKERS'     :
 
            COMPENSATION GROUP, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed August 3, 
 
            1989.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DAN JOE BANNER,
 
        
 
            Claimant,
 
        
 
        vs.                                              File No. 758583
 
        
 
        IOWA FALLS ROOFING,                              A R B I T R A T 
 
        I O N
 
        
 
            Employer,                            D E C I S I O N
 
        
 
        and                                           F I L E D
 
        
 
        BITUMINOUS INSURANCE COMPANY,               JUN 26 1989
 
        
 
            Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
            Defendants.
 
        
 
        
 
                                      INTRODUCTION
 
        
 
             This is an arbitration proceeding brought by Daniel Joe 
 
             Banner, claimant, against Iowa Falls Roofing, employer, and 
 
             Bituminous Insurance Company, insurance carrier, defendants. 
 
             This case was heard by the undersigned on December 5, 1988, in 
 
             Des Moines, Iowa.
 
        
 
            The record consists of the testimony of claimant. The 
 
        record also consists of joint exhibits 1-6.
 
        
 
                                      ISSUE
 
        
 
             As a result of the prehearing report and order submitted and 
 
             approved on December 5, 1988, the issue presented by the parties 
 
             is:
 
        
 
            1. What is the weekly rate to be used in calculating weekly 
 
        benefits when it has been stipulated claimant is single with one 
 
        exemption?
 
        
 
                                      STIPULATIONS
 
        
 
             Prior to the hearing, the parties entered into a number of 
 
             stipulations. The stipulations are as follows:
 
        
 
            1. The existence of an employer-employee relationship 
 
        between claimant and employer at the time of the alleged injury;
 
        
 
             2. That claimant sustained an injury on February 29, 1984, 
 
             which arose out of and in the course or employment with employer;
 
        
 
            3. That the alleged injury is a cause of temporary 
 
        disability during a period of recovery; that the work injury is 
 
        cause of permanent disability;
 
        
 
            4. That the extent of entitlement to weekly compensation 
 
        for healing period, if defendants are liable for the injury, is 
 
        stipulated to be from February 29, 1984 to July 31, 1984;
 

 
        
 
 
 
 
 
        
 
            5. The extent of entitlement to weekly compensation for 
 
        permanent disability, if defendants are liable for injury, is 
 
        stipulated to be 75 weeks for a 15 percent industrial disability; 
 
        the commencement date for permanent partial disability, in the 
 
        event such benefits are awarded, is stipulated to be the first 
 
        day of August, 1984;
 
        
 
            6. That all requested medical benefits under Iowa Code 
 
        section 85.27 (and for medical evaluation under section 85.39) 
 
        have been or will be paid by defendants; and,
 
        
 
            7. Defendants paid claimant 97 weeks, (22 weeks healing 
 
        period and 75 weeks permanent partial disability) benefits at the 
 
        rate of $94.74 per week prior to hearing.
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant was 37-years-old at the time of his hearing. He 
 
             had been employed as a general laborer and as a tar applicator 
 
             for defendant employer for approximately 10 years. When claimant 
 
             was injured in February of 1984, he was working as a tar 
 
             applicator. His duties included mopping tar on a roof or else 
 
             rolling tar paper over hot tar. At that time, claimant was paid 
 
             $7.50 per hour.
 
        
 
            Claimant testified he routinely worked eight or nine months 
 
        per year as the business depended upon the weather. Claimant 
 
        stated he usually worked from late February or early March 
 
        through November or December. During weeks where the weather was 
 
        inclement, claimant stated he would work at least one hour per 
 
        week. He reported there was never a week where he did not work 
 
        some hours. Often times he indicated he would work on repairs 
 
        and that in December of 1983 and January of 1584, claimant would 
 
        repair leaks. He stated that from December of 1983 to March of 
 
        1984, claimant received unemployment benefits because there was a 
 
        lack of work. Claimant reported he would work some hours every 
 
        week and his employer would fill out the forms for the Division 
 
        of Job Service so claimant would not have to look for other 
 
        positions.
 
        
 
             Claimant stated that during the spring, summer and in the 
 
             fall, he would work eight or nine hours per day, five days per 
 
             week. He testified he seldom worked weekends. Claimant also 
 
             reported that during the thirteen week period preceding the date 
 
             of his injury, claimant did not recollect missing any work due to 
 
             personal reasons.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The only issue to address is the issue dealing with the 
 
             weekly benefit rate. In the case at hand, claimant was an hourly 
 
             employee. To determine the appropriate rate for which claimant 
 
             should be paid, section 85.36 of the Iowa Code (1983) must be 
 
             consulted.
 
        
 
            Section 85.36 provides in relevant portion:
 
        
 
                  The basis of compensation shall be the weekly earnings of 
 
                      the injured employee at the time of the injury. Weekly 
 
                      earnings means gross salary, wages, or earnings of an 
 
                      employee to which such employee would have been entitled had 
 
                      he worked the customary hours for the full pay period in 
 
                      which he was injured, as regularly required by his employer 
 
                      for the work or employment for which he was employed, 
 
                      computed or determined as follows and then rounded to the 
 

 
        
 
 
 
 
 
                      nearest dollar:
 
             
 
               ...
 
             
 
              6. In the case of an employee who is paid on a daily, or 
 
             hourly basis, or by the output of the employee, the weekly 
 
             earnings shall be computed by dividing by thirteen the 
 
             earnings, not including overtime or premium pay, of said 
 
             employee earned in the employ of the employer in the last 
 
             completed period of thirteen consecutive calendar weeks 
 
             immediately preceding the injury.
 
             
 
             The method of applying section 85.36(6), is discussed in 
 
             Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, 
 
             section 12-4 (1984). This section states at 97-98:
 
        
 
             It is not uncommon in determining the rate under section 
 
             85.36(6) for a non-salaried employee to find that there are 
 
             weeks within the thirteen consecutive weeks prior to the 
 
             injury that contain absences due to illness, vacation or 
 
             other causes. Since the worker often does not get paid 
 
             unless he works, these weeks are not representative of his 
 
             earnings. The agency has consistently ruled that these 
 
             weeks are not included in the thirteen weeks for determining 
 
             the rate under Iowa Code section 85.36(6). Instead, the 
 
             "short" weeks are skipped and additional weeks are included 
 
             until thirteen completed consecutive weeks are accumulated 
 
             for the calculation. The rationale for this method of 
 
             determining the weekly earnings is based on the mandate of 
 
             the first unnumbered paragraph of Iowa Code section 85.36 
 
             which requires a determination of earnings to which an 
 
             employee "would have been entitled had he worked the 
 
             customary hours for the full pay period in which he was 
 
             injured...."
 
             
 
        See also: Lewis v. Aalf's Mfg. Co., 1 Iowa Indus. Comm'r Rep. 
 
        206, 207 (Appeal Dec. 1980).
 
        
 
             In the case at hand, the undersigned finds that the thirteen 
 
             weeks prior to the date of claimant's injury relate back to the 
 
             week ending November 16, 1983. The basis for that decision is 
 
             that three of the weeks contain short weeks which must be 
 
             skipped. The three weeks in question are weeks ending; January 4, 
 
             1984 which includes New Year's Day, December 28, 1983, which 
 
             includes Christmas Day, November 30, 1983, which includes 
 
             Thanksgiving Day. None of the three aforementioned weeks is 
 
             representative of what an employee "would have been entitled had 
 
             he worked the customary hours for the full pay period in which he 
 
             was injured...." Consequently, the three short weeks are skipped. 
 
             The weeks which are included in calculating claimant's weekly 
 
             rate are as follows:
 
                            
 
                            1.11-16-83          $ 315.94
 
                            2.11-23-83            278.44
 
                            3.12-01-83             60.00
 
                            4.12-07-83             91.88
 
                            5.12-14-83             60.00
 
                            6.01-11-84            224.00
 
                            7.01-18-84             75.00
 
                            8.01-25-84            153.75
 
                            9.02-01-84            260.63
 
                            10.02-08-84             56.25
 
                            11.02-15-84            142.50
 
                            12.02-22-84            163.13
 
                            13.02-29-84           258.75
 
                            
 

 
        
 
 
 
 
 
                                 Total                          
 
        $2,140.27
 
        
 
             Then $2,140.27 (the sum of total wages) is divided by 13 
 
             weeks to obtain the average gross weekly wages of $164.64. The 
 
             workers' compensation benefits schedule for July 1, 1983, 
 
             provides a weekly compensation rate of $107.27 per week for a 
 
             single employee with one exemption. Consequently, the proper 
 
             rate of weekly compensation is determined to be $107.27 per week.
 
        
 
                       FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
        
 
             WHEREFORE, based on the evidence presented and the 
 
             principles of law previously cited, the following findings of 
 
             fact and conclusions of law are made:
 
        
 
            FINDING 1. As a result of claimant's work related injury on 
 
        February 29, 1984, he sustained various injuries.
 
        
 
            FINDING 2. Claimant's weekly rate of compensation is 
 
        calculated to be $107.27 per week.
 
        
 
            CONCLUSION A. Claimant, pursuant to a stipulation, is 
 
        entitled to 22 weeks of healing period benefits at the rate of 
 
        $1107.27 per week.
 
        
 
            CONCLUSION B. Claimant, pursuant to a stipulation, is 
 
        entitled to 75 weeks of permanent partial disability benefits at 
 
        the rate of $107.27 per week.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, defendants are to pay unto claimant twenty-two 
 
             (22) weeks of healing period benefits at a rate of one hundred 
 
             seven and 27/100 dollars ($107.27) per week.
 
        
 
            Defendants are to also pay unto claimant seventy-five (75) 
 
        weeks of permanent partial disability benefits at the rate of one 
 
        hundred seven and 27/100 dollars ($107.27) per week.
 
        
 
            Payment for accrued benefits shall be paid in a lump sum 
 
        together with statutory interest thereon pursuant to Iowa Code 
 
        section 85.30.
 
        
 
            Defendants shall receive credit for all benefits paid.
 
        
 
            Costs of this action are assessed against defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
            A claim activity report shall be filed upon payment of this 
 
        award.
 
        
 
        
 
             Signed and filed this 26th day of June, 1989.
 
             
 
             
 
             
 
             
 
             
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
        Copies To:
 
        
 
        Mr. David D. Drake
 

 
        
 
 
 
 
 
        Attorney at Law
 
        West Towers Office
 
        1200 35th St., STE 500
 
        West Des Moines, Iowa 50265
 
        
 
        Mr. William D. Scherle
 
        Attorney at Law
 
        803 Fleming Bldg.
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DAN BANNER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 758583
 
            IOWA FALLS ROOFING, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            BITUMINOUS INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
             The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 26, 1989 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Defendants shall pay all costs of this proceeding, including 
 
            the preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            803 Fleming Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed July 23, 1991
 
            Clair R. Cramer
 
            MAM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DAN BANNER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 758583
 
            IOWA FALLS ROOFING, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            BITUMINOUS INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 26, 
 
            1989.
 
            
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
                                                 5-3000
 
                                                 Filed June 26, 1989
 
                                                 MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
                                                               
 
        DAN BANNER,
 
        
 
            Claimant,
 
        vs.                                           File No. 758583
 
        
 
        IOWA FALLS ROOFING,                           A R B I T R A T I 
 
        O N
 
        
 
            Employer,                                D E C I S I O N
 
        and
 
        
 
        BITUMINOUS INSURANCE COMPANY,
 
             
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        5-3000
 
        
 
             Three weeks which contained holidays were skipped as short 
 
             weeks when computing rate for an hourly employee.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                     		 :	
 
            DON PATRO,     	 :
 
                      		 :
 
                 Claimant,  	 :
 
                     		 :
 
	            vs.          :
 
                      		 :      File No. 758584
 
            IOWA FALLS ROOFING,  :
 
	                         :        A P P E A L
 
                 Employer,       :
 
	                         :      D E C I S I O N
 
           	 and             :
 
                      		 :
 
            BITUMINOUS INSURANCE COMPANY, :
 
                      		 :
 
                 Insurance Carrier,:
 
                 Defendants.     :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed October 3, 1990, is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            Claimant contends that the deputy erred in failing to 
 
            consider admissions made by the employer concerning the 
 
            compensability of claimant's back injury.  Claimant refers 
 
            to the Joint Motion to Remove the Case from Docket filed on 
 
            January 13, 1989 as evidence of defendants' admission of 
 
            liability.  Parties requested that the case be removed from 
 
            the trial docket because claimant's treating physician 
 
            recommended that claimant undergo back surgery.  Defendants 
 
            agreed to pay for the surgery and benefits for the 
 
            prescribed surgery.  The parties indicated that they would 
 
            notify the agency when the matter was ready to proceed on 
 
            the remaining issues.  The motion was approved.  At the 
 
            hearing, defendants refused to stipulate that the motion for 
 
            continuance is an admission of liability.   
 
            A judicial admission is a formal act, done in the course of 
 
            judicial proceedings, which waives or dispenses with the 
 
            production of evidence, by conceding for purposes of 
 
            litigation that the proposition of fact alleged by the 
 
            opponent is true. 
 
            
 
            Hofer v. Bituminous Casualty Corp., 260 Iowa 81, 83, 148 
 
            N.W.2d 485 (1967).
 
            The motion for continuance is not an admission of liability.  
 
            A hearing assignment order was filed on April 4, 1990.  The 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            parties indicated that arising out of and in the course of 
 
            employment; and causal relationship between the alleged 
 
            injury and the disability, would be two of the hearing 
 
            issues.  The parties filled out the prehearing report and 
 
            order approving the same prior to the hearing indicating 
 
            that causal connection continued to be an issue at the 
 
            hearing.  Both parties represented to the deputy that causal 
 
            connection continued to be a hearing issue.  Clearly, the 
 
            parties did not stipulate to the issue of liability prior to 
 
            the hearing.  The language in the motion for continuance is 
 
            not considered an admission of liability.  
 
            Claimant failed to prove causal connection between his 
 
            February 29, 1984 work-related injury and his back 
 
            condition.
 
            Claimant shall pay the cost of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            8th Floor Fleming Bldg.
 
            218 Sixth Ave.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed October 21, 1991
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            DON PATRO, 		      :
 
                      		      :
 
                 Claimant,            :
 
		                      :
 
  		            vs.       :
 
                		      :      File No. 758584
 
            IOWA FALLS ROOFING,       :
 
		                      :        A P P E A L
 
                 Employer,	      :
 
		                      :      D E C I S I O N
 
         .		    and       :
 
                      		      :
 
            BITUMINOUS INSURANCE COMPANY, :
 
                      		      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ____________________________________________________________
 
            _____
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed October 3, 
 
            1990, with short additional analysis.