BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            CHRISTINE VAN WEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 848411/758597
 
            H. J. HEINZ,                  :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration and 
 
            review-reopening decision awarding permanent total 
 
            disability benefits as the result of an alleged injury on 
 
            November 9, 1985.  The record on appeal consists of the 
 
            transcript of the arbitration proceeding; defendants' 
 
            exhibits A through J, L through P; and claimant's exhibits 1 
 
            through 3.  Both parties filed briefs on appeal.  Defendants 
 
            filed a reply brief.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                    1.  Did the Deputy err in concluding that 
 
                 Claimant's current disability was causally 
 
                 connected to her work injury of November 9, 1985?
 
            
 
                    2.  Did the Deputy err in concluding that 
 
                 Claimant is totally and permanently disabled?
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed February 27, 1991 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed February 27, 1991 are adopted as final agency 
 
            action, as modified by the following additional analysis:
 
            
 
                 Claimant has failed to show good motivation to return 
 
            to work or to find alternative work.  Claimant failed to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            fully cooperate with the vocational rehabilitation program 
 
            set up for her.  Claimant indicated she quit the program 
 
            because she did not feel it was benefitting her, and that 
 
            the vocational rehabilitation people were not trying to find 
 
            a job for her.  
 
            
 
                 Claimant has not established that the vocational 
 
            rehabilitation program was in any way defective or not 
 
            properly designed for her needs.  An injured worker cannot 
 
            subjectively reject proffered rehabilitation services, then 
 
            seek compensation from defendants for disability that 
 
            defendants tried to alleviate through vocational 
 
            rehabilitation efforts.  By failing to cooperate and 
 
            complete the vocational rehabilitation program, claimant has 
 
            possibly caused a portion of her own present disability.  
 
            Defendants cannot be held responsible for the results of 
 
            claimant's noncooperation.  Because of this, claimant  
 
            cannot be said to have shown that all of her present 
 
            disability was caused by her work injury.  The possibility 
 
            has now been raised by claimant herself that a portion of 
 
            her present disability might have been alleviated if the 
 
            vocational rehabilitation program had been completed.  
 
            Claimant bears the burden to show her entitlement to 
 
            benefits.
 
            
 
                 The action by defendants in acceding to claimant's 
 
            efforts to retire and obtain a pension by acknowledging she 
 
            is disabled is of limited weight in this case.  Under the 
 
            totality of the circumstances, defendants were accommodating 
 
            a request by claimant and the acknowledgement is viewed in 
 
            that light.
 
            
 
                 Subsequent to her November 9, 1985 injury, claimant 
 
            received ratings of impairment of 53 percent of her right 
 
            leg, and an additional 10 percent for her back condition.  
 
            Claimant is 41 years of age, and has a high school education 
 
            plus approximately 30 credit hours of college.  Claimant's 
 
            primary work experience is as a factory worker.  Although 
 
            claimant cannot return to this type of work, claimant is 
 
            young enough to be retrained.  As noted above, claimant's 
 
            motivation to find alternative work is affected by her 
 
            unwillingness to complete the vocational rehabilitation 
 
            program.  However, claimant has commendably sought to begin 
 
            retraining herself with a course in accounting.  Also, 
 
            defendants have made an effort to accommodate claimant and 
 
            have offered vocational rehabilitation.
 
            
 
                 Based on these and all other factors of industrial 
 
            disability, claimant is determined to have an industrial 
 
            disability of 60 percent as a result of her work injury of 
 
            November 9, 1985.  Claimant is therefore entitled to an 
 
            award of 300 weeks of permanent partial disability.  The 
 
            claimant's healing period and onset of permanency will be as 
 
            stipulated by the parties. 
 
            
 
                 An apportionment for claimant's prior disability is not 
 
            appropriate.  Claimant's prior injury was limited to the 
 
            right leg.  Claimant's present injury is to the right leg 
 
            and back.  Claimant now has a rating of 53 percent 
 
            impairment of the right leg and 10 percent impairment of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            back.  Claimant's right leg had a rating of 25 percent 
 
            impairment from her prior injury.  In assessing claimant's 
 
            industrial disability as a result of this injury, only that 
 
            portion of claimant's right leg impairment resulting from 
 
            this injury is considered, along with the impairment of her 
 
            back.  Functional impairment is only one factor of 
 
            industrial disability.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants are to pay unto claimant healing period 
 
            benefits at the rate of two hundred twenty two and 03/100 
 
            dollars ($222.03) per week, for the following periods:  
 
            November 14, 1985 through March 16, 1986; June 6, 1986; and 
 
            October 20, 1986 through October 25, 1987.
 
            
 
                 That defendants are to pay unto claimant three hundred 
 
            (300) weeks of permanent partial disability benefits at the 
 
            rate of two hundred twenty two and 03/100 dollars ($222.03) 
 
            per week from October 26, 1987.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 That defendants are to be given credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael J. Motto
 
            Attorney at Law
 
            1000 First Bank Center
 
            Davenport, Iowa  52801
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East 3rd Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                                   1803
 
                                                   Filed July 7, 1992
 
                                                   BYRON K. ORTON
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            CHRISTINE VAN WEY,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 848411/758597
 
            H. J. HEINZ,                  :
 
                                          :            A P P E A L
 
                 Employer,                :
 
                                          :          D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803
 
            Claimant with 10 percent impairment of the back and 
 
            approximately 28 percent increase in impairment of the right 
 
            leg over a prior injury, 41 years of age, high school 
 
            education and one year of college, was awarded 60 percent 
 
            industrial disability.  Claimant could not return to factory 
 
            work.  Claimant was offered vocational rehabilitation by the 
 
            employer, but subjectively quit the program without good 
 
            cause.  However, claimant did enroll in an accounting 
 
            course.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTIEN VAN WEY,            :      File No. 758597
 
                                          :               848411
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :           A N D
 
            H. J. HEINZ,                  :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on January 25, 1991, in 
 
            Davenport, Iowa, wherein claimant seeks compensation for 
 
            additional permanent partial disability benefits in a 
 
            review-reopening case involving file No. 758597 and seeks 
 
            permanent partial disability benefits due to a right lower 
 
            extremity injury and a back injury occurring on November 9, 
 
            1985, represented by file No. 848411.  The record in the 
 
            proceeding consists of the testimony of claimant and Kendall 
 
            Kelly; and joint exhibits A through N.
 
            
 
                                      issues
 
            
 
                 The issue for resolution in both cases is the extent of 
 
            permanent disability to claimant's lower right extremity, a 
 
            scheduled member injury.
 
            
 
                 The additional issues for resolution in regard to file 
 
            No. 848411, the arbitration case, are:
 
            
 
                 1.  Whether claimant's alleged back injury is causally 
 
            connected to claimant's work injury on November 9, 1985; and
 
            
 
                 2.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits as to any 
 
            alleged back injury.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is now known as Christine Hutchinson, having 
 
            remarried on September 23, 1989.  Claimant is a 41-year-old 
 
            high school graduate and has completed thirty credit hours 
 
            at Muscatine Community College, the last classes being last 
 
            fall.  She is currently in some home study courses.  
 
            Claimant is interested in accounting and needs a total of 84 
 
            credit hours in order to complete her degree.  Claimant 
 
            indicated she temporarily stopped the classes due to a Mayo 
 
            Clinic one week appointment.
 
            
 
                 Prior to beginning working for defendant employer in 
 
            August 1981, as a factory worker, claimant worked at various 
 
            jobs which are set out in Joint Exhibit A, page 2.
 
            
 
                 Claimant described her various jobs with defendant 
 
            employer.  She was a filler operator in October 1983 when 
 
            she slipped and fell on the floor while attending to a 
 
            jammed can in a machine.  Claimant hurt her right knee in 
 
            this incident.  She said she continued to have pain and 
 
            obtained treatment up to November 9, 1985, when she was 
 
            injured again.  Claimant indicated she did not injure her 
 
            back in the October 1983 slip and fall.
 
            
 
                 Claimant went back to work for two months for defendant 
 
            employer, when, on November 9, 1985, she slipped on some 
 
            gravy while standing on a platform.  Claimant said a can was 
 
            jammed in a machine and when she tried to stop the machine 
 
            line, she slipped and went into the air and hurt her back 
 
            and right leg.
 
            
 
                 Claimant explained why some of the records may indicate 
 
            medical attention was given mainly to her right leg and not 
 
            her back.  Claimant insisted her back injury was mentioned 
 
            to the doctors but she understood that unless her knee 
 
            problem was solved, her back problem could not be adequately 
 
            treated or healed because her knee condition aggravates her 
 
            back.  Claimant indicated the doctors did not recommend back 
 
            surgery until her knee healed.
 
            
 
                 Claimant related that her back has always been painful 
 
            since her November 9, 1985 work accident and that one doctor 
 
            would be treating her back while another would be treating 
 
            her knee.  Claimant has been to Mayo Clinic for knee 
 
            treatment as recently as January 14, 1991.  Claimant 
 
            indicated she is unable to squat and her leg twitches 
 
            constantly.  Because of the nature of this case and the 
 
            controversy herein, the undersigned observed claimant.  The 
 
            undersigned believes claimant is in extreme pain while 
 
            sitting, standing and walking.  There were many observations 
 
            by the undersigned in which claimant would not necessarily 
 
            know she was being observed.  The undersigned at times 
 
            noticed the leg twitching and claimant's hand shaking.
 
            
 
                 There were questions concerning why the vocational 
 
            rehabilitation-fitness center program was terminated.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant contends she was given a lot of tests that were of 
 
            no rehabilitation purpose and she wanted to be rehabilitated 
 
            so a job could be found.  She said she was told there were 
 
            no jobs available.  She drove one and one-half hours to the 
 
            center and said the pain was too great for what she was 
 
            getting out of the program.  She emphasized she did not quit 
 
            vocational rehabilitation program but that she quit the 
 
            repeated testing.
 
            
 
                 Claimant appeared depressed.  She understands there is 
 
            no long-term cure for her back until her right knee is cured 
 
            and she has been told there is no current cure for her knee 
 
            problem.  Claimant said she can't go up and down steps or 
 
            climb stairs.  She cannot wear tight shoes, nylons, jeans 
 
            and that walking aggravates her problem.  Claimant has seen 
 
            several neurologists and orthopedists.  She understands that 
 
            if she has surgery to sever the nerve, the side effects 
 
            would be terrible.  Therefore, surgery has not been 
 
            recommended by the various specialists.  
 
            
 
                 Claimant is on social security and welfare benefits 
 
            which is the only current source of income she has.  
 
            Claimant said she was taking accounting courses so she could 
 
            try to work out of her home.  Claimant attempted to return 
 
            to work but was unable to perform the work.  Claimant began 
 
            receiving social security benefits in December 1989.  She 
 
            emphasized she still has the desire to return to work.
 
            
 
                 Claimant acknowledged she received $21,500 from a life 
 
            insurance company on a policy to which she and defendant 
 
            employer contributed.  These proceeds are obtainable if a 
 
            person is determined to be totally disabled.  Defendant 
 
            employer agreed with that determination which enabled 
 
            claimant to receive this lump sum.  Defendant employer 
 
            contends they agreed to the total disability based on 
 
            claimant's knee condition and not because of her back.
 
            
 
                 Kendall Kelly, the personnel manager for defendant 
 
            employer, indicated there were jobs still available within 
 
            claimant's restrictions as of June 13, 1988, the last day 
 
            claimant worked for defendant employer.  He acknowledged 
 
            claimant applied for and obtained a lump sum from the 
 
            employer-employee funded disability policy due to being 
 
            determined totally disabled.  Defendants and another 
 
            insurance company agreed to this conclusion.  Defendant 
 
            employer then considered claimant ceased employment with 
 
            them upon receiving this money.  Mr. Kelly indicated this 
 
            determination was based on claimant's pain in her right leg.
 
            
 
                 Gerald Hale, D.O., an anesthesiologist, testified 
 
            through his deposition on February 20, 1989 (Jt. Ex. M).  
 
            His first contact with claimant was on October 27, 1986, in 
 
            reference to a consultation regarding claimant's chronic 
 
            right knee pain and her condition known as reflex 
 
            sympathetic dystrophy.  The doctor described his medical 
 
            treatment of the claimant which involved a knee surgery in 
 
            November 1986, which was claimant's third or fourth surgery 
 
            since her October 28, 1983 right knee injury.
 
            
 
                 The doctor described how he performed the block of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's sympathetic nerves in October 1986 (Jt. Ex. M, p. 
 
            8).  He then performed two sympathetic nerve blocks in 
 
            January of 1987 (Jt. Ex. M, p. 10).  He was asked to explain 
 
            the procedure he goes through to administer a sympathetic 
 
            block:
 
            
 
                 A.  ....Sympathetic nerves are nerves that 
 
                 parallel the spinal cord, and we find that if we 
 
                 can block the nerves at that level then we can 
 
                 essentially reduce the amount of pain in the knee, 
 
                 so it is the form of a spinal anesthetic that was 
 
                 received.
 
            
 
                    ....
 
            
 
                 A.  In the initial treatment of reflex sympathetic 
 
                 dystrophy we normally set a patient up in a series 
 
                 of blocks.  We normally find that with each block 
 
                 the duration of relief is no longer.  This is 
 
                 usually in the acute setting, and a person in a 
 
                 chronic setting certainly has a condition that is 
 
                 more difficult to reverse.
 
            
 
                 Q.  Are you saying there that Chris's situation is 
 
                 chronic?
 
            
 
                 A.  Yes, at this point she was right at three 
 
                 years from the initial injury.
 
            
 
            (Jt. Ex. M, p. 12)
 
            
 
                 Claimant had another continuous epidural block for two 
 
            days in March 1987.  These blocks involve sticking needles 
 
            directly in the spine and inserting a catheter along the 
 
            spinal canal (Jt. Ex. M, p. 12).
 
            
 
                 Additional sympathetic blocks were done May 5 and 13, 
 
            1987 and February 1988.  Dr. Hale said claimant received 
 
            other blocks between May of 1987 and February 3, 1988, at 
 
            the University of Iowa Hospitals.  Dr. Hale said claimant 
 
            has not been able to have any lasting or significant relief 
 
            on any permanent basis. (Jt. Ex. M, p. 14).  Dr. Hale 
 
            testified he did not treat claimant for any low back 
 
            problems, but said claimant complained of low back problems.  
 
            He did say he treated claimant for hypertension which he 
 
            found to be aggravated by low blood sugar due to a reaction 
 
            to the block (Jt. Ex. M, p. 19) and this caused him to alter 
 
            the reflex sympathy dystrophy treatment.
 
            
 
                 The records of William Catalona, M.D., on November 11, 
 
            1985 (Jt. Ex. B, p. 11) reflect claimant complained of low 
 
            back discomfort and had mild tenderness over the lower 
 
            lumbar spine.
 
            
 
                 The notes of David C. Naden, M.D., an orthopedic 
 
            surgeon, (Jt. Ex. C), indicate claimant was having right 
 
            knee problems in 1984 but was doing better.  This is 
 
            understandable based on the fact that claimant was concluded 
 
            to have a 25 percent permanent partial impairment to her 
 
            right leg in a hearing held on April 2, 1988, and which 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            ended in an arbitration decision filed May 29, 1985 (Jt. Ex. 
 
            A).
 
            
 
                 Claimant was also working during part of 1984 and was 
 
            going through therapy.  Claimant was also working in 1985 
 
            until her November 9, 1985 injury.
 
            
 
                 On September 12, 1985, claimant was complaining of both 
 
            right knee pain and low back pain.  Dr. Naden's notes 
 
            reflect:
 
            
 
                    Disp:  I think this woman's back condition is
 
            really not real severe and will clear up with 
 
            time--particularly if we can get the knee symptoms 
 
            under better control.  At the present time I think 
 
            she's able to work but she's obviously under dire 
 
            distress.  She has a gimpy rt. knee that's not 
 
            only symptomatic but causing her to limp and I 
 
            think starting to seriously affect her back.  I 
 
            think this woman's working days with this type of 
 
            knee are limited and I think in the 
 
            not-too-distant future she's going to need some 
 
            type of reconstructive alignment procedure on that 
 
            knee that will hopefully get these symptoms under 
 
            control and her health in better shape.
 
            
 
            (Jt. Ex. C, pp. 6 and 7)
 
            
 
                 This same exhibit reflect increased right knee problems 
 
            on November 11, 1985, two days after claimant's November 9, 
 
            1985 injury.  At that time, there is no reference to the 
 
            back until January 9, 1986.  On this date, the doctor said 
 
            claimant has been having back problems since the November 
 
            1985 slip and fall and is being treated by another doctor 
 
            for that.  It would appear that Dr. Naden was mainly 
 
            interested in trying to solve claimant's knee problem.
 
            
 
                 Considering all the medical records in this case, it 
 
            seems as though the back situation was put in the background 
 
            due to the fact that unless the knee problem is solved, the 
 
            back could not be solved or alleviated.  There seems to be a 
 
            tie between the two.
 
            
 
                 On March 3, 1986, Dr. Naden gave claimant a 
 
            return-to-work slip for March 17, 1986.  His notes reflect 
 
            claimant was having problems again in June.  The undersigned 
 
            will not go into claimant's time off and healing period and 
 
            to what they were attributed because the parties have 
 
            stipulated to the time off that claimant incurred and the 
 
            extent of the healing period benefits that were paid and to 
 
            which defendants agreed were owed to claimant.  Claimant's 
 
            entitlement to permanent disability benefits is an issue.
 
            
 
                 Defendant's company medical in-house report indicates a 
 
            diagnosis, "acute cervical & low back strain" and claimant 
 
            "fell striking both knees against conveyor supports and then 
 
            landed on buttocks." (Jt. Ex. C, p. 27).  On May 12, 1986, 
 
            Dr. Naden gave claimant an impairment as to her back and 
 
            attributed certain amounts to certain injuries and 
 
            preexisting conditions.  A considerable amount of medical 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            care has been given to claimant since that time strictly by 
 
            Charles T. Cassel, M.D., to whom Dr. Naden referred claimant 
 
            in October 1986.  The undersigned believes Dr. Cassel's 
 
            impairment ratings are much more acceptable considering the 
 
            total medical records and evidence and also are more recent 
 
            and up to date.
 
            
 
                 Dr. Cassel's notes of October 5, 1987 (Jt. Ex. D, p. 9 
 
            and 13) are a good example of how the doctor intertwines the 
 
            back and leg but seems to be eventually directing attention 
 
            to the right leg.
 
            
 
                 On April 4, 1988, Dr. Cassel opined that claimant had a 
 
            43 percent impairment:
 
            
 
                 I feel that she has a 43% permanent impairment of 
 
                 her right leg.  I feel that she has a separate 10% 
 
                 impairment of her lower back.  By history her back 
 
                 problem originated when she fell while recovering 
 
                 from knee surgery.  I feel that the fall that she 
 
                 had which precipitated her back discomfort is 
 
                 related to her knee injury in that sense.  
 
                 Reviewing her films, she may have had mild 
 
                 degenerative changes in her back but the fall 
 
                 definitely aggravated an underlying condition.
 
            
 
            (Jt. Ex. D, p. 28)
 
            
 
                 This 43 percent was obviously incorrect after looking 
 
            at all the doctor's prior correspondence.  The doctor 
 
            corrected this 43 percent and on April 6, 1988, opined that 
 
            claimant has a 53 percent impairment to her lower extremity 
 
            (Jt. Ex. D, p. 30).  On April 10, 1989, Dr. Cassel 
 
            reiterated claimant's restrictions, which are:
 
            
 
                 [T]he patient cannot stand or walk for prolonged 
 
                 periods of time.  I would not anticipate her being 
 
                 able to stand or walk for longer than 30 or 40 
 
                 minutes at a time without being able to sit down 
 
                 or rest or work in a sitting station.  I do not 
 
                 feel that she would be able to do repetitive 
 
                 lifting, bending, or stooping, or stair climbing.  
 
                 I would have a weight restriction lifting limit of 
 
                 25-30 lbs.
 
            
 
            (Jt. Ex. D, p. 34)
 
            
 
                 The University of Iowa notes on August 25, 1987, 
 
            reflect that claimant was referred to the pain clinic by Dr. 
 
            Cassel for lumbar sympathetic block (Jt. Ex. F, p. 3).
 
            
 
                 On August 27, 1985, claimant went through an operation 
 
            described as a right L2,L3 sympathetic ganglion block under 
 
            pluro.
 
            
 
                 The records of J. Larry Troxel, B.S., D.C., basically 
 
            conclude claimant is suffering from a permanent chronic low 
 
            back disability which is aggravating her right knee, making 
 
            it very difficult for claimant to move about (Jt. Ex. I, p. 
 
            13).  On page 17 and 18 of Joint Exhibit I, Dr. Troxel sets 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            out a certain impairment rating.
 
            
 
                 Joint Exhibit J reflects the various operations 
 
            claimant has had.  Page 41 is an example whereby claimant 
 
            had a continuous epidural sympathetic block and IV regional 
 
            sympathetic block on February 6, 1988.  These notes refer to 
 
            claimant's prior May 5, 1988 similar procedure, a combined 
 
            lumbar epidural sympathetic and IV regional sympathetic 
 
            block.
 
            
 
                 On December 22, 1988, Dr. Hale agreed with Dr. Cassel's 
 
            53 percent impairment of claimant's right lower extremity.  
 
            He did not evaluate claimant's back problem.  Therefore, he 
 
            did not agree or disagree with Dr. Cassel's 10 percent 
 
            impairment rating as to claimant's back (Jt. Ex. J, p. 63).
 
            
 
                 Wayne M. Sliwa, Ed.D., a licensed psychologist, wrote 
 
            on June 16, 1989:  "Given the medical diagnosis and the 
 
            chronicity of the pain over the last several years, it does 
 
            not appear that she will be able to work at all in the 
 
            future.  As the medical test reports, this is a very chronic 
 
            disease with the prognosis being poor."  (Jt. Ex. K, p. 9)
 
            
 
                 Claimant contends that she has at least a 53 percent 
 
            impairment of her right lower extremity.  Claimant also 
 
            contends that she injured her back on November 9, 1985.  
 
            Defendants contend there not only is no back injury but that 
 
            that is not an issue based on the record.  It is difficult 
 
            for the undersigned to see where the defendants are coming 
 
            from in that respect.  The defendants argue there is no 
 
            mention of the back but only the knee in this record.  There 
 
            are numerous areas in which the back is referred to and 
 
            treatment of the same or reference to the same resulting 
 
            from the November 9, 1985 incident.  Also, claimant was 
 
            having some back problems prior to November 9, 1985.  It is 
 
            undisputed that if in fact there is a scheduled injury 
 
            involved and a body as a whole injury involved in the same 
 
            accident, then everything is rated and based on a body as a 
 
            whole industrial disability.
 
            
 
                 Taking all the medical evidence as a whole, it is clear 
 
            to the undersigned that considerable effort has been made on 
 
            trying to solve claimant's right knee problem and finding a 
 
            cure for her reflex sympathetic dystrophy condition.  At 
 
            times, it seems like the back condition has taken a back 
 
            seat.  It is obvious from the record that there is little 
 
            that can be done concerning the back if the right knee 
 
            problem cannot be solved.  It seems like they are 
 
            intertwined in many respects as far as each condition to 
 
            some extent affecting the other.  Defendants contend that 
 
            whatever the injury is, it is strictly a scheduled injury.  
 
            The undersigned disagrees with this contention and believes 
 
            the greater weight of medical evidence shows otherwise.
 
            
 
                 Claimant has gone through several nerve blocks.  The 
 
            nature of this operation is explained in the operation.  It 
 
            involves placing needles in the spine and a catheter along 
 
            the spinal cord.  It is undisputed that the spinal cord is, 
 
            in fact, part of the back or the central nervous system and 
 
            is into a person's body as a whole.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 The undersigned finds that although claimant was having 
 
            some back trouble prior to this time, her real problems for 
 
            the most part prior to November 9, 1985 involved her right 
 
            knee.  The undersigned finds that claimant's November 9, 
 
            1985 work injury substantially and materially aggravated and 
 
            lighted up a preexisting back condition that claimant had.  
 
            The undersigned also finds that claimant had a previous 
 
            award of 25 percent permanent partial disability benefits 
 
            regarding her right knee in an October 28, 1983 injury.  The 
 
            evidence indicates that claimant was getting along to some 
 
            extent and had been working for a considerable period of 
 
            time prior to her November 9, 1985 injury, and that upon 
 
            receiving that work injury went through many more operations 
 
            and treatments because of her right knee condition.  
 
            
 
                 The undersigned finds that regarding case No. 758597, a 
 
            review-reopening, that claimant did not prove that the 
 
            disability for which claimant seeks additional compensation 
 
            was proximately caused by the first injury or that the 
 
            second injury was proximately caused by the first injury.  
 
            There is no question in the undersigned's mind that any 
 
            increased impairment or disability incurred by the claimant 
 
            was work related and increased claimant's impairment to her 
 
            right lower extremity, and the undersigned finds that this 
 
            increase in impairment was a result of the November 9, 1985 
 
            injury.  The undersigned finds that Dr. Cassel's impairments 
 
            are the most accurate as they are the most recent.  Dr. 
 
            Naden, an orthopedic surgeon, actually referred claimant to 
 
            Dr. Cassel, who is also an orthopedic surgeon.
 
            
 
                 Claimant is on social security.  It is true that 
 
            criteria in determining social security disability is 
 
            different in some respects than the criteria to determine 
 
            industrial disability.  Claimant also was determined by 
 
            another insurance company, not a party to this action, in 
 
            agreement with defendant employer, that claimant was totally 
 
            disabled and claimant received a lump sum payment, which 
 
            payment is not an issue herein.  Defendants contend that 
 
            even though the employer agreed that claimant was totally 
 
            disabled in order to receive those funds, it only had to do 
 
            with the right knee.  Although that might appear to have 
 
            been the situation, or at least defendants' contention, the 
 
            undersigned finds that there was substantial medical 
 
            evidence in the record to indicate claimant was, in fact, 
 
            totally disabled as a result of her work-related November 9, 
 
            1985 injury which affected her back and increased her 
 
            impairment to the right knee.  The undersigned finds that 
 
            claimant has a total loss of earning capacity as a result of 
 
            her November 9, 1985 injury.
 
            
 
                 Taking into consideration claimant's age, complete 
 
            medical history, work experience, healing period, age, 
 
            education, motivation, physical condition, restrictions, 
 
            severity and location of her injury, impairment, and any 
 
            other criteria used in determining industrial disability, 
 
            the undersigned finds that claimant is completely and 
 
            totally disabled.
 
            
 
                 The undersigned will not further determine or make any 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            finding as to claimant's healing period as the parties 
 
            stipulated to the healing period incurred by claimant which 
 
            involved more than one healing period.  The parties further 
 
            stipulated that any permanent partial disability benefits 
 
            would, in fact, from the circumstances of this case begin 
 
            October 26, 1987.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 9, 
 
            1985 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            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).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            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 sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 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 employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
            cases cited.
 
            
 
                 When a worker sustains an injury, later sustains 
 
            another injury, and subsequently seeks to reopen an award 
 
            predicated on the first injury, he or she must prove one of 
 
            two things: (a) that the disability for which he or she 
 
            seeks additional compensation was proximately caused by the 
 
            first injury, or (b) that the second injury (and ensuing 
 
            disability) was proximately caused by the first injury.  
 
            DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 
 
            (Iowa 1971). 
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).
 
            
 
                 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).
 
            
 
                 If 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.2d 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 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            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 v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 The mere fact that the rating pertains to a scheduled 
 
            member does not mean the disability is restricted to a 
 
            schedule.  Pullen v. Brown & Lambrecht Earthmoving, 
 
            Incorporated, II Iowa Industrial Commissioner Reports 308 
 
            (Appeal Decision 1982).
 
            
 
                 The case law relating to review-reopening proceedings 
 
            is rather extensive.
 
            
 
                 The opinion of the Iowa Supreme Court in Stice v. 
 
            Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 
 
            452 (1940) stated "that the modification of...[an] award 
 
            would depend upon a change in the condition of the employee 
 
            since the award was made."  The court cited the law 
 
            applicable at that time which was "if on such review the 
 
            commissioner finds the condition of the employee warrants 
 
            such action, he may end, diminish, or increase the 
 
            compensation so awarded" and stated at 1038:
 
            
 
                 That the decision on review depends upon the 
 
                 condition of the employee, which is found to exist 
 
                 subsequent to the date of the award being 
 
                 reviewed.  We can find no basis for interpreting 
 
                 this language as meaning that the commissioner is 
 
                 to re-determine the condition of the employee 
 
                 which was adjudicated by the former award.
 
            
 
                 The court in Bousfield v. Sisters of Mercy, 249 Iowa 
 
            64, 86 N.W.2d 109 (1957) cited prior decisions and added a 
 
            new facet to the review-reopening law by stating at page 69:
 
            
 
                 But it is also true that unless there is more than 
 
                 a scintilla of evidence of the increase, a mere 
 
                 difference of opinion of experts or competent 
 
                 observers as to the percentage of disability 
 
                 arising from the original injury would not be 
 
                 sufficient to justify a different determination by 
 
                 another commissioner on a petition for 
 
                 review-reopening.  Such is not the case before us, 
 
                 for here there was substantial evidence of a 
 
                 worsening of her condition not contemplated at the 
 
                 time of the first award.
 
            
 
                 In a somewhat analogous vein, the Iowa Court of Appeals 
 
            held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 
 
            N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening 
 
            petition may allow a change in compensation when a claimant 
 
            has failed to improve to the extent initially anticipated.
 
            
 
                 A major pronouncement came in the case of Gosek v. 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968).  The 
 
            opinion there, at 732, stated that "[o]n a review-reopening 
 
            hearing claimant has the burden of showing by a 
 
            preponderance of the evidence his right to compensation in 
 
            addition to that accorded by a prior agreement or 
 
            adjudication."  The opinion went on to discuss the common 
 
            understanding that "if a claimant sustained compensable 
 
            injuries of which he was fully aware at time of prior 
 
            settlement or award, but for some unexplainable reason 
 
            failed to assert it, he cannot, for the first time on 
 
            subsequent review proceedings, claim additional benefits."  
 
            The opinion continued at 733 "[b]ut according to the 
 
            apparent majority view, if a claimant does not know of other 
 
            employment connected injuries or disability at time of any 
 
            prior agreement or adjudication, he is not ordinarily barred 
 
            from later asserting it as a basis for additional benefits."  
 
            The court went on to hold at 735 that "cause for allowance 
 
            of additional compensation exists on proper showing that 
 
            facts relative to an employment connected injury existed but 
 
            were unknown and could not have been discovered by the 
 
            exercise of reasonable diligence, sometimes referred to as a 
 
            substantive omission due to mistake, at time of any prior 
 
            settlement or award."
 
            
 
                 Each of these cases rest upon some disparity between 
 
            claimant's actual or anticipated physical condition at the 
 
            time of the previous assessment and the physical condition 
 
            which exists at the time of the review-reopening proceeding.  
 
            Thus, the question initially becomes has claimant 
 
            established a change in his physical condition since the 
 
            time of the April 2, 1988 proceeding.
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition and an injury is proper only when there was some 
 
            ascertainable disability which existed independently before 
 
            the injury occurred.  Varied Enterprises, Inc. v. Sumner, 
 
            353 N.W.2d 407 (Iowa 1984)
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is, of course, placed upon the 
 
            defendant.  If evidence to establish a proper apportionment 
 
            is absent, the defendant is resp  claimant's right lower extremity and the combination of 
 
            these two injuries on November 9, 1985 has resulted in 
 
            claimant incurring an industrial disability.
 
            
 
                 Claimant is totally permanently disabled as a result of 
 
            claimant's November 9, 1985 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That as to File No. 848411, the November 9, 1985 
 
            injury, defendants shall pay claimant compensation for 
 
            permanent total disability at the rate of two hundred 
 
            twenty-two and 03/100 dollars ($222.03) per week during the 
 
            period of claimant's disability commencing October 26, 1987.
 
            
 
                 The rate to which the parties stipulated is wrong for 
 
            the November 9, 1985 injury based on the parties' stipulated 
 
            gross weekly income of three hundred fifty-three dollars 
 
            ($353).
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That claimant takes nothing further as to File No. 
 
            758597 (review-reopening).
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Michael J Motto
 
            Attorney at Law
 
            1000 First Bank Ctr
 
            Davenport IA 52801
 
            
 
            Mr. Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
                 
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1108; 1804; 2905
 
                      Filed February 27, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHRISTIEN VAN WEY,            :      File No. 758597
 
                                          :               848411
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :           A N D
 
            H. J. HEINZ,                  :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108; 1804
 
            Forty-one year old claimant incurred a work-related knee 
 
            injury resulting in a reflex sympathy dystrophy.  No cure 
 
            has been found nor is one anticipated.  In same injury, 
 
            claimant incurred a back injury.  Claimant is unable to be 
 
            employed.  Claimant found to be permanently totally 
 
            disabled.
 
            
 
            2905
 
            Claimant took nothing in the review-reopening case.  It was 
 
            found that claimant's current disability was the result of 
 
            her recent injury referred to above which involved her right 
 
            lower extremity and back.  The review-reopening involved 
 
            only her right lower extremity.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA CRAWFORD,
 
         
 
              Claimant,                               File No. 759165
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         WESTMARK PROPERTY MANAGEMENT                 D E C I S I O N
 
         COMPANY,
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            FEB 09 1988
 
         
 
         STATE FARM INSURANCE COMPANY,         IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Patricia 
 
         Crawford against Westmark Property Management Company, her former 
 
         employer, and State Farm Insurance Company, the employer's 
 
         insurance carrier.  The case was heard in Des Moines, Iowa on 
 
         July 7, 1987 and was fully submitted upon conclusion of the 
 
         hearing.
 
         
 
              The record in the proceeding consists of testimony from 
 
         Patricia Crawford, Pamela Kelly and Brenda Goeden.  Also received 
 
         into evidence were claimant's exhibits 1 through 9 and 
 
         defendants' exhibits A, B, C, D, E, G, H, I, K, L, M and N.
 
         
 
                           ISSUES AND STIPULATIONS
 
         
 
              It was stipulated that claimant sustained an injury on 
 
         February 3, 1984 which arose out of and in the course of 
 
         employment.
 
         
 
              The issues identified by the parties for determination are: 
 
         Whether there is a causal relationship between the alleged injury 
 
         and the disability; whether claimant is entitled to temporary 
 
         total disability or healing period benefits or permanent partial 
 
         or permanent total disability benefits; whether claimant falls 
 
         within the odd-lot doctrine; and, claimant's rate of compensation 
 
         in the event of an award.  The employer also seeks credit, in the 
 
         event of an award, for the benefits previously paid to claimant.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
                                                
 
                                                         
 
              The following is only a brief summary of pertinent evidence. 
 
         All evidence received at the hearing was considered when deciding 
 
         the case even though it may not necessarily be referred to in 
 
         this decision.  Defendants' proposed summary of evidence is 
 
         essentially accurate and is incorporated herein with some 
 
         modification.
 
         
 
              Patricia Crawford is a 55-year-old woman who had been 
 
         employed by Westmark Property Management Company as an apartment 
 
         manager for six months prior to her injury on February 3, 1984. 
 
         She is single.  Claimant's formal education is limited to the 
 
         eighth grade.  Prior to becoming an apartment manager in 1969, 
 
         she had worked as a waitress.
 
         
 
              Claimant testified that, on February 3, 1984, while moving a 
 
         washer and dryer at the Riverview Oaks apartment complex at 8450 
 
         Hickman, in Des Moines, Iowa, to clean behind them, she heard her 
 
         back "pop."  She went home to lie down.  There were no witnesses. 
 
         She saw a chiropractor on February 6, 1984 without obtaining 
 
         relief.  On February 7, 9, 15, and 27, 1984, she received 
 
         osteopathic manipulative treatments from the Dietz Family 
 
         Practice Clinic.  She was given another prescription of Parafon 
 
         Forte. After the treatment on February 7, 1984, claimant felt 
 
         fine, but then went bowling, threw her back out and her symptoms 
 
         returned (defendants' exhibit A, pages 3-5).
 
         
 
              Claimant sought treatment at the Mercy Hospital Medical 
 
         Center on February 11, 1984.  She was diagnosed by Sinesio Misol, 
 
         M.D., as having a possible herniated disc.  She was treated 
 
         conservatively with medication, rest and a TENS unit.  Claimant 
 
         returned to see Marvin Dubansky, M.D., on March 1, 1984 and was 
 
         admitted to Mercy Hospital.  A myelogram was performed on March 
 
         2, 1984 which revealed evidence of partial sacralization of L-5. 
 
         There was noted a large defect at the level of L-4, L-5 on the 
 
         right side.  There was no evidence of any other pathological 
 
         change (defendants' exhibit B, page 23).
 
         
 
              Dr. Dubansky performed chemonucleolysis at L-4/L-5 on March 
 
         5, 1984 and discharged claimant on March 12, 1984 (defendants' 
 
         exhibit B, pages 14-16).  Because of complaints of pain, she was 
 
         readmitted on April 4, 1984 to Mercy Hospital and was discharged 
 
         on April 20, 1984.  She received outpatient therapy and 
 
         medication.  Claimant was still having pain in the right leg and 
 
         was admitted to Mercy Hospital on May 24, 1984.  A lumbar 
 
         laminectomy was performed on May 25, 1984 by Dr. Dubansky. 
 
         According to the operative report, the findings on surgery were 
 
         as follows:
 
         
 
              The dissector was used and there really was not too much 
 
              bulging, and it was very difficult to try to identify the 
 
              disc space itself.  A needle was placed in what I thought 
 
              probably was this space, although it was extremely narrow. 
 
              Xray was taken and confirmed this was the L4-5 interspace 
 
              where I wanted to be.  A knife was used to try and cut into 
 
              this area, but there was some thickening of tissues on the 
 
                                                
 
                                                         
 
                   back of the vertebra and beneath the dura, but not really 
 
              extruded disc.  It didn't look like disc material.  I used 
 
              the narrowest pituitary rongeur to try and remove some of 
 
              the material between the vertebra, but it was really scarred 
 
              and fibrous.  Using the dissector up under the nerve root, 
 
              however, there was a hard, flat piece of material, about .5 
 
              cm x .5 cm. x 2-3 mm.  It was lying beneath the nerve root 
 
              and when this was removed, down to the vertebral body, and 
 
              seemed to decompress the nerve root.  The nerve root was a 
 
              little bit inflammed [sic].  (Defendants' exhibit B, page 
 
              20).
 
         
 
              Claimant was released from Mercy Hospital on June 1, 1984, 
 
         with an improved amount of right leg pain.  Subsequently, she 
 
         received physical therapy from June 14, 1984 through July 26, 
 
         1984.  Claimant was discharged from therapy as she had plateaued 
 
         in treatment on July 26, 1984 (defendants' exhibit B, pages 24 
 
         and 25).
 
         
 
              On July 31, 1984, Dr. Dubansky released claimant to do 
 
         office work (defendants' exhibit B, page 6).  On September 25, 
 
         1984, claimant started working at an apartment complex owned by 
 
         employer in Phoenix, Arizona.  Her "care" was transferred to 
 
         Ronald B. H. Sandler, M.D., in Phoenix.  She complained to Dr. 
 
         Sandler of persistent pain involving the right buttock and 
 
         lateral right thigh and burning pain in the right calf.  Claimant 
 
         complained that she would have it in the morning when she first 
 
         awoke and at other times she would be on her feet for 1-2 hours 
 
         before it begins (defendants' exhibit B, pages 26 and 27).  
 
         Claimant received an epidural steroid injection on October 31, 
 
         1984, November 1, 1984, and again on November 8, 1984.  When she 
 
         again saw Dr. Sandler on November 16, 1984, claimant was feeling 
 
         better with aching discomfort in the calf.  Dr. Sandler indicated 
 
         that she could continue working (defendants' exhibit B, pages 
 
         28-30).
 
         
 
              Claimant was next examined by Dr. Sandler on January 18, 
 
         1985 with complaints of persistent recurring discomfort in the 
 
         right calf.  Dr. Sandler felt that claimant could probably 
 
         control her symptoms by watching her activity level and positions 
 
         (defendants' exhibit B, page 31).  On March 13, 1985, Dr. Sandler 
 
         felt she was stable and gave claimant a 20% impairment rating 
 
         (defendants' exhibit B, page 32).
 
         
 
              Claimant quit her job in April, 1985.  She stated that she 
 
         was physically incapable of continuing to perform the job due to 
 
         her pain.  Claimant received her last check in May, 1985 
 
         (defendants' exhibit E).  At the time of the injury on February 
 
         3, 1984, claimant was making $800.00 per month and was receiving 
 
         an apartment with a fair rental value of $295.00 with utilities 
 
         valued at $20.00 per week (defendants' exhibit M).  Claimant 
 
         received the apartment and utilities until June 11, 1985.
 
         
 
              According to Evalene J. Hannah, claimant quit her job with 
 
         the employer because she was getting married to Charles Buxton. 
 
                                                
 
                                                         
 
         Claimant testified that her pain and restricted activities caused 
 
         the marriage to end.
 
         
 
              Claimant's job in Phoenix, Arizona included the leasing of 
 
         apartments, paper work, collection of rents, serving of notices 
 
         and court actions.  Claimant hired an assistant or maintenance 
 
         person to do the maintenance, repairs, grounds, pools and 
 
         cleaning.  Claimant was responsible for supervising and training 
 
         this person.  In late April of 1985, the employer received a 
 
         written complaint concerning claimant regarding her availability 
 
         to tenants.  The employer also suggested a way for her to remain 
 
         at her job in spite of her physical complaints (defendants' 
 
         exhibit E, pages 10 and 11).
 
         
 
              Claimant saw Dr. Dubansky on December 9, 1985.  At that 
 
         time, claimant had an EMG and CT scan.  The EMG study of L.S. 
 
         paraspinal and left lower extremity was normal.  The CT scan 
 
         revealed no evidence of nerve root compression.  Dr. Dubansky 
 
         gave her a 20% impairment rating (defendants' exhibit B, pages 8 
 
         and 9).
 
         
 
              On October 13, 1986, claimant saw Andrew G. Shetter, M.D., a 
 
         neurosurgeon, in Phoenix, Arizona.  Claimant told Dr. Shetter 
 
         that her pain symptoms had decreased over the past two years.  
 
         Dr. Shetter observed no evidence of lower extremity muscle 
 
 
 
                               
 
                                                         
 
         atrophy. Dr. Shetter stated that the patient's symptoms were 
 
         indicative of a residual right L5 radiculopathy.  He recommended 
 
         no further surgery and felt that her present treatment should be 
 
         continued (defendants' exhibit B, pages 44-46).
 
         
 
              On December 29, 1986, Dr. Dubansky again examined claimant. 
 
         The doctor stated that there were no objective neurological 
 
         changes and that claimant showed no evidence of weakness or 
 
         atrophy.  He recommended no change in her course of treatment 
 
         (defendants' exhibit B, page 10).
 
         
 
              Claimant has not sought employment since quitting her job 
 
         with the employer in April, 1985.  The employer introduced 
 
         evidence through Brenda Goeden of jobs presently available in the 
 
         Phoenix area that were within claimant's experience and physical 
 
         restrictions as indicated by Dr. Shetter.  Also available in the 
 
         Phoenix area was employment as a leasing hostess, or a job 
 
         similar to that which she held with this employer.  Claimant is 
 
         presently restricted to 20 pounds lifting and should avoid 
 
         excessive stooping or bending (deposition of Dr. Shetter, page 
 
         12).
 
         
 
              Claimant's prior medical history reveals that she has had 
 
         polio which affected her right leg in her twenties and a work 
 
         injury of "approximately three months duration" in 1962, 
 
         according tO interrogatory answer number 3 (defendants' exhibit 
 
         I, page 5).  However, on cross-examination, it was admitted by 
 
         claimant that her work injury occurred on March 14, 1963 and, as 
 
         late as April 1, 1964, she still had not returned to work and had 
 
         no knowledge as to when she would be returning to work.  She saw 
 
         Thomas B. Summers, M.D., on December 12, 1963.  It was his 
 
         opinion that her objective findings were minimal in degree.  
 
         Claimant indicated that because of the pain she did not feel she 
 
         could carry on with her usual occupation.  Her work injury 
 
         involved the lower cervical spine (defendants' exhibit A, page 
 
         31).  Claimant received a settlement in June, 1964 from the 
 
         employer and returned to work as a waitress thereafter 
 
         (defendants' exhibit C, page 2).
 
         
 
              Claimant denied having any disability in her right leg from 
 
         polio.  However, on cross-examination, it was revealed that, 
 
         whenever she gets tired, she limps on her right leg.  Robert B. 
 
         Stickler, M.D., her family doctor, stated that, in July, 1966, 
 
         claimant had severe back pain (defendants' exhibit A, page 29). 
 
         Dr. Shetter also rendered his opinion that gait changes from 
 
         polio could aggravate or exacerbate arthritic changes in 
 
         claimant's spine (deposition of Dr. Shetter, page 20).
 
         
 
              Claimant spends her time presently caring for her daughter's 
 
         two seven-year-olds.  Claimant belongs to a health club and 
 
         occasionally socializes at a neighborhood bar.  While she worked 
 
         for the employer, claimant flew back to Des Moines in December, 
 
         1984 to attend a staff Christmas party.
 
         
 
              Claimant's major physical complaint relates to pain.  Dr. 
 
                                                
 
                                                         
 
         Dubansky stated, in his deposition at page 32, that his rating of 
 
         20% included 15% for her subjective complaints of pain. 
 
         Furthermore, Dr. Summers stated in a report dated April 13, 1978, 
 
         that he believed there was a sizeable functional element which 
 
         contributed to the symptomatology, in whole or in part.  Dr. 
 
         Summers was seeing claimant at that time for dizziness or 
 
         lightheadedness (defendants' exhibit A, pages 33 and 34).
 
         
 
              Dr. Dubansky stated, in a clinical note dated August 23, 
 
         1984, that it is "Real hard to determine just how much of this is 
 
         nerve root compression and how much is residual back that is 
 
         causing some leg pain and how much of it is a psychological 
 
         overlay."  (Defendants' exhibit B, page 7; deposition of Dr. 
 
         Dubansky, page 26).
 
         
 
              According to Dr. Shetter, claimant does not have any loss of 
 
         motor function in the legs or sensory loss that would be 
 
         functionally incapacitating (deposition of Dr. Shetter, page 15). 
 
         He testified that all pains can be and are influenced by 
 
         behavioral and emotional factors and that the location of 
 
         claimant's pain is anatomically appropriate (deposition of Dr. 
 
         Shetter, page 22).
 
         
 
              The defendants have paid claimant workers' compensation 
 
         benefits from February 4, 1984 through September 29, 1984, a 
 
         period of 34 weeks, at the rate of $127.90.  Benefits were 
 
         resumed on March 13, 1985 through June 16, 1987, a period of 118 
 
         weeks, at the rate of $127.90.  The defendants paid benefits from 
 
         June 17, 1987 to the date of hearing, a period of two weeks, at 
 
         the rate of $177.01.  A check was given to claimant's attorney on 
 
         July 2, 1987 for $2,441.45 for what was believed to have been an 
 
         underpayment of workers' compensation benefits based on the 
 
         weekly rate paid of $127.90.  The foregoing payments are 
 
         established by a stipulation of the parties contained in the 
 
         prehearing report.  The total paid is $22,345.88.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that the injury of February 3, 1984 is causally related 
 
         to the disability on which she now bases her claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L. 
 
         O. Boggs, 236 Iowa 296, 18 N.W.2d 1607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).  The causal connection is made by Dr. 
 
         Dubansky in his deposition.
 
         
 
              Claimant alleges she is entitled to the benefit of the 
 
         odd-lot doctrine.  Guyton v. Irving Jensen Co.,   373 N.W.2d 101 
 
         (Iowa 1985).  However, she has failed to make a prima facie 
 
         showing of permanent total disability under the odd-lot doctrine 
 
         because she has made no effort to secure employment.  She also 
 
                                                
 
                                                         
 
         presently cares for her daughter's seven-year-old twins.  Emshoff 
 
         v. Petroleum Transportation Services, Industrial Commissioner 
 
         Appeal Decision, March 31, 1987.  Therefore, this doctrine has no 
 
         application in this case.
 
         
 
              It remains to be determined the percentage of disability to 
 
         which claimant is entitled as a result of the work injury.  Both 
 
         Dr. Sandler and Dr. Dubansky gave claimant a 20% functional 
 
         impairment rating.  Dr. Dubansky admitted that 15% of the rating 
 
         was for subjective complaints of pain. 
 
         
 
              If 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 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         25
 
         
 
              The approaching of later years,.when it can be anticipated 
 
         that, under normal circumstances, a worker would be retiring is, 
 
         without some clear indication to the contrary, a factor which can 
 
         be considered in determining the loss of earning capacity or 
 
         industrial disability which is causally related to the injury. 
 
         Christopher B. Becke v. Turner-Busch, Inc. and American Mutual 
 
         Liability Insurance Company, Thirty-fourth Biennial Report 34, 
 
         36.
 
         
 
              Claimant is 55 years old and has completed eighth grade.  
 
         She has worked as a waitress and an apartment manager most of her 
 
         adult life.  Claimant's physicians gave her a 20% functional 
 
         impairment rating and she is restricted to lifting no more than 
 
         20 pounds and to avoid excessive stooping and bending.
 
         
 
              Claimant has not attempted retraining or employment.  At 
 
         hearing, it was apparent from claimant's demeanor that she is not 
 
         motivated to attempt to find gainful employment.  Motivation is a 
 
         factor which weighs on industrial disability.  Claimant is of an 
 
         age when normally her work life would soon end.  Thus her 
 
         potential loss of earning capacity on account of her disability 
 
         is less than that of a younger individual.  When claimant's 
 
         physical impairment, education, work experience, age, motivation 
 
         and all the other factors are considered, she is found to have 
 
         sustained a permanent partial disability of 60%.
 
         
 
                                                
 
                                                         
 
              The appropriate conversion date from healing period to 
 
         permanency benefits remains to be determined.  Claimant was 
 
         released by Dr. Dubansky to return to office-type work as of July 
 
         31, 1984 and returned to work on September 30, 1984.  She received 
 
         her first check for the prior two weeks of work on October 15, 
 
         1984 (defendants' exhibit E, page 4).  See Iowa Code section 
 
         85.34(l). All payments made after October 1, 1984 should be 
 
         credited to permanency benefits.  Claimant left her job in April, 
 
         1985.  She was getting married.  Despite her testimony, no 
 
         physician had recommended that she quit.  She did not seek medical 
 
         attention or treatment from March, 1985 until September, 1985.  
 
         Her condition has been essentially stable since she returned to 
 
         work on September 30, 1984.  No further healing period 
 
         compensation is due.  The healing period therefore runs from 
 
         February 4, 1984 until her return to work on September 30, 1984, a 
 
         period of 34 weeks.
 
         
 
              Claimant's rate must be established.  Claimant received $800 
 
         per month in salary, plus an apartment valued at $295 per month 
 
         and utilities valued at $20 per week.  In calculating the rate, 
 
         multiply $295 times twelve to get the yearly allowance for the 
 
         apartment.  This totals $3,540.00.  Utilities of $20 per week 
 
         multiplied by 52 weeks per year total $1,040.00.  Utilities and 
 
         the apartment added together total $4,580.00 which, when divided 
 
         by 52 weeks brings an additional weekly value to claimant of 
 
         $88.08 in earnings.  Hoth v. Eilors, I Iowa Industrial 
 
         Commissioner Report, 156 (1980).
 
         
 
              The additional value of $88.08 in earnings, when added to 
 
         the weekly wage of $184.62 ($800 per month x 12 divided by 52 
 
         weeks), equals a gross weekly wage of $272.70.  The benefit 
 
         schedule would provide a rate of compensation of $168.22, if the 
 
         rate is computed in this manner.
 
 
 
                         
 
                                                         
 
         
 
              The benefits of housing and utilities continued from 
 
         February 3, 1984 through June 11, 1985.  Therefore, a credit 
 
         should be given as this was considered a portion of the payment 
 
         of earnings that was continued.  Division of Industrial Services 
 
         Rule 343-8.4. The credit for the value of the apartment with 
 
         utilities is applicable only to the healing period.  The 
 
         apartment and utilities were part of claimant's earnings for the 
 
         work she performed.  If the credit was applied against permanent 
 
         partial disability benefits, it would be the same as crediting 
 
         wages earned after the end of the healing period toward a 
 
         permanent partial disability award.  Wages earned during a period 
 
         of entitlement to permanent partial disability benefits are not a 
 
         credit against the employer's liability to pay permanent partial 
 
         disability benefits [85.34(2)].
 
         
 
              The statutes do not provide directives as to how the 
 
         deduction should be handled.  The two apparent alternatives are 
 
         to deduct the value of the apartment and utilities directly from 
 
         the rate of compensation or to recompute the rate based only upon 
 
         the $800 monthly salary.
 
         
 
              Section 85.37 makes the rate equal to "eighty percent of the 
 
         employee's weekly spendable earnings."  Section 85.61(11) defines 
 
         spendable earnings as the amount remaining after payroll taxes 
 
         are deducted from gross weekly earnings.  The values of the 
 
         apartment and utilities are not included in claimant's taxable 
 
         earnings and are not subject to payroll taxes (see defendants' 
 
         exhibit H). Simply adding the $88.08 to the weekly salary and 
 
         then applying that sum to the benefit schedule results in an 
 
         understatement of the correct rate since the schedule treats the 
 
         entire sum as if it was subject to payroll taxes.  The correct 
 
         way to compute the rate in a case where part of the earnings are 
 
         not subject to payroll taxes is to apply the taxable salary to 
 
         the benefit schedule to determine a preliminary rate based only 
 
         upon the taxable salary. Then, 80% of the non-taxable earnings 
 
         should be added to the preliminary rate to arrive at the final 
 
         rate.  Any other method of computing the rate would violate the 
 
         statute.  In this case, the weekly salary provides a preliminary 
 
         rate of $119.11.  Eighty percent of $88.08 equals $70.46.  The 
 
         final rate is therefore $189.57.  For so long as the employer 
 
         continued to provide the apartment and utilities, the employer's 
 
         liability is to pay $119.11 per week.  After September 30, 1984, 
 
         the rate is $189.57 per week.
 
         
 
              The permanent partial disability award of sixty percent 
 
         (60%) entitles claimant to 300 weeks of benefits commencing 
 
         September 30, 1984, payable at the rate of $189.57 per week.  The 
 
         amount payable for permanent partial disability is $56,871.00.
 
         
 
              The net compensation payable during the healing period is 
 
         $119.11 for 34 weeks for a total of $4,049.74.
 
         
 
              At the time of hearing, July 7, 1987, all healing period 
 
         ($4,049.74) and 144 2/7 weeks of permanent partial disability 
 
                                                
 
                                                         
 
         compensation equaling $27,352.30 were due.  The total due was 
 
         $31,402.04.  The sum of $22,345.88 had been paid by the date of 
 
         hearing resulting in an underpayment of $9,056.16.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  On February 3, 1984 claimant was a resident of Iowa 
 
         employed by Westmark Property Management Company in the state of 
 
         Iowa.
 
         
 
              2.  On February 3, 1984 claimant sustained an injury to her 
 
         back in the course of her employment.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that 
 
         she performed at the time of the injury from February 4, 1984 to 
 
         September 29, 1984, when claimant became medically capable of 
 
         returning to employment substantially similar to that in which 
 
         she was engaged at the time of the injury.
 
         
 
              4.  As a result of the injury, claimant has a permanent 60% 
 
         loss of her earning capacity.
 
         
 
              5.  Claimant's credibility concerning the severity of her 
 
         allegations of pain and disability is not well established.
 
         
 
              6.  Claimant presently babysits full-time for her daughter's 
 
         twin seven-year-olds.
 
         
 
              7.  Claimant had worked for most of her adult life as a 
 
         waitress and an apartment manager.
 
         
 
              8.  Claimant has not sought employment since quitting her 
 
         job in April, 1985.
 
         
 
              9.  Claimant has not sought vocational rehabilitation.
 
         
 
              10.  The physical restrictions outlined by Dr. Shetter at 
 
         pages 11 and 12 in exhibit 6 are correct for the claimant in this 
 
         case.
 
         
 
              11.  The assessment made by Brenda Goeden that people with 
 
         claimant's restrictions can usually obtain gainful employment if 
 
         they want to work is correct.
 
         
 
              12.  Claimant has not established that she is disabled from 
 
         working as an apartment manager.
 
         
 
              13.  Claimant has sustained a large loss of access to the 
 
         job market.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  Claimant has established that she received an injury on 
 
         February 3, 1984 which arose out of and in the course of her 
 
                                                
 
                                                         
 
         employment.
 
         
 
              2.  Claimant has established a causal relationship between 
 
         the injury and her disability.
 
         
 
              3.  Claimant is entitled to healing period benefits from 
 
         February 4, 1984 until September 29, 1984, a period of 34 weeks.
 
         
 
              4.  Claimant is entitled to weekly benefits at the rate of 
 
         $189.57.  However, from February 4, 1984 to September 30, 1984, 
 
         the amount to be paid is $119.11 as part of claimant's earnings 
 
         were continued in the form of an apartment plus utilities valued 
 
         at $88.08 per week for which a credit against healing period is 
 
         granted.
 
         
 
              5.  The odd-lot doctrine is not applicable as claimant has 
 
         not made a prima facie showing of permanent total disability 
 
         through unsuccessful bona fide efforts to find employment or 
 
         otherwise.
 
         
 
              6.  Where part of an employee's earnings are non-taxable, 
 
         that part should not be applied through the benefit schedule.  In 
 
         lieu thereof, 80% of the value of the non-taxable earnings should 
 
         be added to the rate determined when the earnings subject to 
 
         payroll taxes are applied to the benefit schedule.
 
         
 
              7.  The value of the apartment and utilities is a credit 
 
         against healing period compensation, but is not a credit against 
 
         permanent partial disability compensation since it was then a 
 
         part of claimant's current earnings.
 
         
 
              8.  Where the non-taxable part of an employee's earnings are 
 
         continued by the employer, the weekly compensation paid to the 
 
         employee should be based only upon that part of the earnings 
 
         which are not continued.
 
         
 
              9.  Claimant has a 60% permanent partial disability when it 
 
         is evaluated industrially which entitles her to 300 weeks of 
 
         compensation under section 85.34(2)(u).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         thirty-four (34) weeks of compensation for healing period at the 
 
         rate of one hundred nineteen and 11/100 dollars ($119.11) per 
 
         week commencing February 4, 1984.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant three 
 
         hundred (300) weeks of compensation for permanent partial 
 
         disability commencing September 30, 1984 at the rate of one 
 
         hundred eighty-nine and 57/100 dollars ($189.57) per week.
 
         
 
              IT IS FURTHER ORDERED that credit is given for the 
 
         twenty-two thousand three hundred forty-five and 88/100 dollars 
 
         ($22,345.88) paid prior to hearing.  Defendants are also entitled 
 
                                                
 
                                                         
 
         to credit for any payments made subsequent to the hearing.
 
         
 
              IT IS FURTHER ORDERED that all unpaid amounts which are 
 
         accrued shall be paid in a lump sum together with interest 
 
         pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants shall pay the costs of 
 
         this action as itemized in Claimant's Bill of Costs filed on July 
 
         6, 1987 with the cost of five and 00/100 dollars ($5.00) for 
 
         medical records disallowed and with the expert witness fees for 
 
         Drs. Dubansky and Shetter limited to one hundred fifty and 00/100 
 
         dollars ($150.00) each pursuant to Division of Industrial 
 
         Services Rule 343-4.33.  The net amount equals one thousand one 
 
         hundred sixty-eight and 09/100 dollars ($1,168.09).
 
         
 
              IT IS FURTHER ORDERED that defendants shall file Claim 
 
         Activity Reports on the payment of this award as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              IT IS FURTHER ORDERED that this case be assigned for 
 
         pre-hearing conference on claimant's claim for additional 
 
         benefits under the fourth unnumbered paragraph of section 86.13.
 
         
 
              Signed and filed this 9th day of February, 1988.
 
                                             
 
         
 
         
 
                                            MICHAEL G. TRIER
 
 
 
                                             
 
                                                         
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph S. Cortese II
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Iris J. Post
 
         Mr. Ross Sidney
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa  50306
 
 
 
         
 
 
            
 
 
 
 
 
                     
 
 
 
                                            1802, 1803, 3001, 3002
 
                                            3003, 4100
 
                                            Filed February 9, 1988
 
                                            MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA CRAWFORD,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         WESTMARK PROPERTY MANAGEMENT                File No. 759165
 
         COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE FARM INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802, 1803, 3001, 3002, 3003, 4100
 
         
 
              Fifty-five-year-old claimant injured her back while working 
 
         as an apartment manager.  The employer offered continued 
 
         employment with accommodations, but she resigned after working 
 
         approximately eight months.  The resignation was not medically 
 
         directed and her condition had not changed and no further healing 
 
         period was awarded.  She has severe limitations and limited work 
 
         experience.  Claimant was awarded 60% permanent partial 
 
         disability.  Claimant had not looked for work or retrained and 
 
         odd-lot held unavailable to her.  Claimant received a salary and 
 
         an apartment with utilities for her services as manager.  The 
 
         value of the apartment with utilities was held to be part of her 
 
         gross weekly earnings and also of her weekly spendable earnings 
 
         since it was not subject to payroll taxes.  The rate was 
 
         determined by applying the salary to the benefit schedule and 
 
         then adding 80% of the value of the apartment and utilities.  The 
 
         employer was granted partial credit for the apartment and 
 
         utilities for so long as the apartment was provided to claimant 
 
         during the healing period, but it was not allowed as a credit 
 
         against permanent partial disability since it was part of the 
 
         earnings she received for the work she was then performing.
 
         
 
         
 
         
 
 
 
 
 
                                                
 
 
         
 
 
 
 
 
 
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         JOEY A. KELLER,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 759179
 
         MORSE RUBBER PRODUCTS INC.,     :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         THE HARTFORD,                   :
 
                                         :
 
              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 
 
         April 1, 1994 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 August, 1994.
 
         
 
         
 
         
 
         
 
                                  ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         P.O. Box 1087
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St.
 
         Davenport, Iowa 52801
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                                       5-1803
 
                                       Filed August 29, 1994
 
                                       Byron K. Orton
 
                                       
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          _________________________________________________________________
 
                                         :
 
         JOEY A. KELLER,                 :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 759179
 
         MORSE RUBBER PRODUCTS INC.,     :
 
                                         :           A P P E A L
 
              Employer,                  :
 
                                         :         D E C I S I O N
 
         and                             :
 
                                         :
 
         THE HARTFORD,                   :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         
 
         5-1803
 
         
 
              Non-precedential, extent of disability case.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOEY A. KELLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 759179
 
            MORSE RUBBER PRODUCTS INC.,   :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Joey Keller, claimant, against Morse Rubber Products, Inc., 
 
            employer, hereinafter referred to as Morse, and The 
 
            Hartford, insurance carrier, defendants, for the recovery of 
 
            further workers' compensation benefits as the result of an 
 
            injury on March 1, 1984.  There is both a prior arbitration 
 
            decision issued in August 1986 and a prior Iowa Code section 
 
            86.13 agreement for settlement for this injury approved in 
 
            October 1989.  On March 1, 1994, a hearing was held on 
 
            claimant's petition in this proceeding and the matter was 
 
            considered fully submitted at the close of this hearing. 
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant is not seeking temporary total or healing 
 
            period benefits in this proceeding.
 
            
 
                 2.  Claimant's rate of compensation is the same as 
 
            before, $213.68 per week. 
 
            
 
                 3.  Medical benefits are not in dispute.
 
            
 
                                          ISSUE
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to additional permanent disability benefits, if 
 
            any.
 

 
            
 
            Page   2
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 From his demeanor while testifying, claimant is found 
 
            credible.
 
            
 
                 Claimant has worked for Morse for 20 years and 
 
            continues to do so at the present time.  The claim herein is 
 
            not based upon any alleged change of physical condition, 
 
            only a change in his job status.
 
            
 
                 According to claimant's uncontroverted testimony, 
 
            claimant has been able to move from job to job at Morse on 
 
            his own bidding.  This was the case back at the time of both 
 
            the arbitration decision in 1986 and the settlement 
 
            agreement in October 1989.  However, in late 1993, claimant 
 
            was given an evaluation of physical abilities and it was 
 
            determined by the management of Morse that he could no 
 
            longer perform his job as a press operator.  Claimant was 
 
            then involuntarily transferred to the shipping department.  
 
            The sole reason for the transfer was claimant's back 
 
            condition which has remained essentially the same since the 
 
            agreement for settlement in 1989.  Up until the transfer, 
 
            claimant was repeatedly being injured by a series of 
 
            aggravations of the prior back condition.  Claimant admitted 
 
            at hearing that he now performs work more in line with his 
 
            disability.
 
            
 
                 As a result of this non-physical change of condition, 
 
            claimant has suffered a mild five percent loss of earning 
 
            capacity.  This loss is due to the original injury and 
 
            resulting back condition.  Claimant was earning $10.50 per 
 
            hour in his job as a press operator.  The involuntary 
 
            transfer resulted in a cut in pay of $.61 per hour.  All of 
 
            the other factors of industrial disability found in the 
 
            arbitration decision and discussed in the settlement 
 
            agreement remain unchanged except that claimant now is 
 
            older.  Claimant states that he continues to have stiffness 
 
            and soreness which varies from day-to-day.  This appears to 
 
            be the same physical condition he has described on prior 
 
            occasions.
 
            
 
                    
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 In a review-reopening proceeding, claimant has the 
 
            burden of establishing by a preponderance of the evidence 
 
            that he suffered a change of condition or a failure to 
 
            improve as medically anticipated as a proximate result of 
 
            his original injury, subsequent to the date of the award or 
 
            agreement for compensation under review, which entitles him 
 
            to additional compensation.  Deaver v. Armstrong Rubber Co., 
 
            170 N.W.2d 455 (Iowa 1969).  Meyers v. Holiday Inn of Cedar 
 
            Falls, 272 N.W.2d 24 (Iowa Ct. App. 1978).  Such a change of 
 
            condition is not limited to a physical change of condition.  
 
            A change in earning capacity subsequent to the original 
 
            award or settlement which is proximately caused by the 
 
            original injury also constitutes a change in condition under 
 
            Iowa Code section 85.26(2) and 86.14(2).  See McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (1980).
 
            
 
                 As this is an industrial disability case, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  Unlike scheduled member disabilities, 
 
            the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, 
 
            immediately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered an additional five percent loss of his earning 
 
            capacity as a result of the work injury.  Such a finding 
 
            entitles claimant to 25 weeks of permanent partial 
 
            disability benefits as a matter of law under Iowa Code 
 
            section 85.34(2)(u) which is five percent of 500 weeks, the 
 
            maximum allowable number of weeks for an injury to the body 
 
            as a whole in that subsection.  As the change of condition 
 
            occurred in later 1993, the benefits will be awarded from 
 
            January 1, 1994.
 

 
            
 
            Page   4
 
            
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant an additional 
 
            twenty-five (25) weeks of permanent partial disability 
 
            benefits at a rate of two hundred thirteen and 68/l00 
 
            dollars ($213.68) per week from January 1, 1994.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 4.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
                 
 
            
 
            
 
                      Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            PO Box 1087
 
            Keokuk, Iowa  52632
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East 3rd Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed April 1, 1994
 
                                               LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JOEY A. KELLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 759179
 
            MORSE RUBBER PRODUCTS INC.,   :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            THE HARTFORD,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
             Non-precedential, extent of disability case.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DORENE K. SACHAU,
 
         
 
              Claimant,
 
                                                   File No.  759191
 
         vs.
 
                                                A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                    D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Dorene K. 
 
         Sachau, claimant, against Farmland Foods, employer, and Aetna 
 
         Casualty & Surety Company, insurance carrier, defendants, for 
 
         benefits as a result of an alleged injury which occurred on March 
 
         6, 1984.  A hearing was held on September 25, 1987, at Sioux 
 
         City, Iowa, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Dorene K. 
 
         Sachau, claimant, Nancy Wiese, plant nurse, Earl H. "Bud" 
 
         Knudsen, foreman and Joint Exhibits 1 through 59.  Both attorneys 
 
         submitted excellent briefs.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              Claimant's Contentions, attached to the prehearing report, 
 
         assert that employer is responsible to pay the expense of an Iowa 
 
         Code section 85.39 examination performed by Horst G. Blume, M.D. 
 
          However, a section 85.39 examination is not one of the issues 
 
         designated as a hearing issue on the hearing assignment order.  
 
         Claimant's attorney did not assert that this issue was raised at 
 
         the time of the prehearing conference.  Defendants' counsel 
 
         stated that the issue was not mentioned at the prehearing 
 
         conference, but, defendants had no objection to it being an issue 
 
         for decision in this case.  Defendants' consent is ineffective.  
 
         The agency policy is that issues that are not raised at the 
 
         prehearing conference and designated as hearing issues on the 
 
         hearing assignment order will not be decided.  Deputies are 
 
         authorized to determine only those issues designated as hearing 
 
         issues on the hearing assignment order.  Therefore, it is 
 
         determined that the issue of an Iowa Code section 85.39 
 
         examination is waived and it will not be decided as an issue in 
 
         this case at this time.  Presswood v. Iowa Beef Processors, Inc., 
 
         file no. 735442 (Appeal Decision, November 14, 1986); Rahn v. 
 
         Siouxland Towing and Auto Body, file no. 797004, filed October 
 
         20, 1987; Pulju v. Iowa Beef Processors, Inc., file nos. 804656 & 
 
         814502, filed February 9, 1988; Fisher v. American Freight 
 
         Systems, Inc., file no. 797015, filed September 26, 1988.
 
         
 
              Claimant's counsel contended that a section 85.39 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   2
 
         
 
         
 
         examination had been allowed in an earlier case with a claimant 
 
         named Pirozek.  There are two earlier cases where Raymond Pirozek 
 
         was the claimant.  The first case was Pirozek v. Swift 
 
         Independent Packing, file nos. 753643, 753642 & 724893, filed 
 
         September 24, 1985.  The second case was Pirozek v. Swift 
 
         Independent Packing, file no. 803955, filed December 22, 1986.  
 
         In each of these cases, the expense of an Iowa Code section 85.39 
 
         examination was allowed, but also, in each of these cases it was 
 
         designated as a hearing issue at the prehearing conference and 
 
         designated as a hearing issue on the hearing assignment order.  
 
         Therefore, since an Iowa Code section 85.39 examination was not 
 
         raised at the prehearing conference and since it was not 
 
         designated as a hearing issue on the hearing assignment order, it 
 
         will not be considered a hearing issue in this case at this 
 
         time.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period benefits, if 
 
         defendants are liable for the injury, is from March 7, 1984 to 
 
         October 29, 1984.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is October 29, 
 
         1984.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $225.92 per week.
 
         
 
               That defendants seek no credit for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan.
 
         
 
              That defendants paid claimant 36 3/7 weeks of temporary 
 
         total disability compensation at the rate of $225.92 per week 
 
         prior to hearing.
 
         
 
              That there was no agreement as to whether defendants paid 
 
         claimant any permanent partial disability benefits prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on March 6, 1984, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              Whether the alleged injury is the cause of either temporary 
 
         or permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of entitlement.
 
         
 
              Whether claimant is entitled to medical benefits.
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   3
 
         
 
         
 
         
 
              Whether this action was timely commenced under the 
 
         provisions of Iowa Code section 85.26 is asserted as an 
 
         affirmative defense by defendants.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant is 41 years old.  She was 37 years old at the time 
 
         of the injury.  Claimant attended high school until the first 
 
         semester of tenth grade.  Subsequently, she acquired a G.E.D. on 
 
         May 17, 1983.  She also completed a sewing course and a typing 
 
         course but did not use these skills afterwards.  Claimant started 
 
         to work at age 13.  She worked at a care center and in 
 
         restaurants as a dishwasher, cook's helper, cook and waitress.
 
         
 
              Claimant was married on September, 30, 1967, had five 
 
         children and returned to employment outside of her home in 1975, 
 
         as a cashier in a supermarket.  She started to work as an 
 
         employee of this employer in March of 1977.  She passed a 
 
         preemployment physical examination at that time.  Claimant denied 
 
         any previous serious accidents or illnesses.  Claimant has worked 
 
         for employer continuously for approximately 10 years and was 
 
         employed by employer at the time of this hearing on the 
 
         production line in this pork kill plant.  Claimant has packed 
 
         link sausages, boned out loins and vacuum packed fresh pork in 
 
         the cry-o-vac department.  This latter job required claimant to 
 
         take tenderloins, roasts, loins, butts and other cuts of meat 
 
         which weighed anywhere from one pound to ten pounds off of the 
 
         line.  She had to straighten the plastic for a good seal and then 
 
         run the package through the cry-o-vac machine which sealed the 
 
         product in plastic.  Some products might pass at the rate of 18 
 
         per minute and other products would pass at the rate of 40 per 
 
         minute depending on what cut of meat was being packaged at any 
 
         given time.
 
         
 
              Claimant testified that she first experienced tendonitis and 
 
         bursitis in both hands in 1978.  She saw James L. Flood, M.D., at 
 
         this time.  Periodically over the years, she experienced 
 
         tendonitis and bursitis in her shoulders and her arms.  She also 
 
         experienced some back problems.  She treated for these problems 
 
         with Dr. Flood and J.G. Donovan, D.C. (Exhibit 2 & 15).
 
         
 
              Claimant testified that in March of 1984, her hand became 
 
         numb, tingled and caused pain up into her shoulder.  Her 
 
         shoulders, neck and head ached.  Her hand and arm had shooting 
 
         pains and became numb.  This time it was more severe than before.  
 
         The nurse sent claimant to See Dayrle Crabb, M.D. Dr. Crabb 
 
         referred claimant to Ronald A. Cooper, M.D., a neurologist in 
 
         Omaha.  Dr. Cooper recommended carpal tunnel surgery.  This was 
 
         performed by Dr. Crabb in Denison, Iowa.  Claimant was off work 
 
         from March of 1984 to October of 1984.  She did well after the 
 
         carpal tunnel surgery and had a good result from it; but her 
 
         shoulder continued to be painful and was still painful at the 
 
         time of the hearing.  Claimant testified that she had difficulty 
 
         in performing the cry-o-vac job and was transferred back to the 
 
         night sausage job, which was her first job for employer.  She 
 
         still sees Dr. Crabb for prescriptions for her shoulder.  
 
         Claimant testified that she is looking for different work but has 
 
         to keep working in order to support her family.  She said that 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   4
 
         
 
         
 
         she has taken postal service examinations and would like to be a 
 
         window clerk or a clerk that sorts mail.
 
         
 
              Claimant testified that she can no longer do aerobic 
 
         exercises, play baseball or ride horseback.
 
         
 
              Claimant explained that her left hand and left shoulder are 
 
         involved in this injury.  Claimant stated that she writes with 
 
         her right hand and arm, but her left arm is her dominant arm in 
 
         all other activities.  Claimant affirmed that her right upper 
 
         extremity was not involved in this claim for injury.
 
         
 
              Nancy Wiese, plant nurse since January of 1984, testified 
 
         that she prepared the Health Service Daily Log for the entry on 
 
         March 6, 1984, which indicates that claimant complained of 
 
         numbness and swelling in her left hand into the left shoulder and 
 
         requested to see a doctor.  This same notation also states that 
 
         claimant had the same problem in July doing the same job.  The 
 
         pain never did get better (Ex. 47).  Wiese also testified that 
 
         the Absence Record for Dorene Sachau from July 7, 1977 to August 
 
         1, 1987, was prepared by her from company records (Ex. 59).  
 
         Wiese further testified that this report is accurate.  Wiese 
 
         testified that the Absence Record shows that claimant lost no 
 
         time from work in 1987 due to her left shoulder.
 
         
 
              Earl H. "Bud" Knudsen, claimant's foreman, testified that he 
 
         has supervised claimant for approximately one year and that he 
 
         sees her everyday.  Knudsen said that claimant is an excellent 
 
         worker and has no trouble doing her job.  She does good work and 
 
         has made no complaints to him.  She may have mentioned her 
 
         physical problem to him, but she has not asked for any special 
 
         treatment.  Knudsen acknowledged that most of the jobs in 
 
         claimant's department are repetitive jobs.  He also granted that 
 
         she may be taking pain pills in order to continue to work.  
 
         Knudsen confirmed that claimant is a person who is motivated to 
 
         work.
 
         
 
              Prior to this injury, the medical records show that claimant 
 
         had trouble with her left shoulder as early as April 10, 1980.  
 
         The office notes of Dr. Flood show that claimant was lifting a 
 
         chamber lid at work and felt pulling in the left shoulder (Ex. 2, 
 
         page 1).  Dr. Flood called it a left shoulder sprain (Ex. 3).  
 
         Claimant was hospitalized at St. Josephs Hospital in Omaha (Ex. 
 
         10).  Claimant made an application for group disability benefits 
 
         from April 30, 1980 to September 9, 1980 (Ex. 48).  Dr. Flood 
 
         noted (Ex. 2, p. 1.) and reported (Ex. 4) on April 30, 1980, that 
 
         claimant had bursitis in both shoulders and also cervical 
 
         radiculitis and myositis of the thoracic region of her back.  An 
 
         x-ray of claimant's left shoulder taken on May 1, 1980, was 
 
         negative (Ex. 9).
 
         
 
              Claimant saw Dr. Donovan, the chiropractor, from June 4, 
 
         1980 to August 25, 1980 (Ex. 15).  The first treatment was for 
 
         her shoulder and the subsequent treatments appeared to be for her 
 
         back.
 
         
 
              Also prior to this injury claimant hit her left shoulder on 
 
         a guard rail at work on July 20, 1983 (Ex. 13).  She saw Frank 
 
         Iwersen, M.D., an neurosurgeon in Omaha (Ex. 12).  She described 
 
         symptoms of carpal tunnel syndrome to Dr. Iwersen which she 
 
         stated began on July 6, 1983.  She also reported that shortly 
 
         after this, she hit the rail with her left shoulder and this was 
 
         also giving her difficulty at the same time (Ex. 14).
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   5
 
         
 
         
 
         
 
              The Health Service Daily Log shows that claimant complained 
 
         of pain in her left shoulder on July 21, 1983.  Claimant stated 
 
         that she bumped a guard rail on July 20, 1983.  There were no 
 
         bruises but the posterior shoulder and upper arm were swollen.  
 
         Claimant denied it happened as a result of work at home (Ex. 
 
         46).
 
         
 
              The Health Service Daily Log for the date of March 6, 1984, 
 
         records that claimant complained of numbness and swelling in her 
 
         left hand into her left shoulder.  It also stated that claimant 
 
         was doing the same job and had the same problem as in July.  The 
 
         pain never did get better.  Claimant was sent to see Dr. Crabb 
 
         (Ex. 47).
 
         
 
              Dr. Crabb suspected a shoulder/hand syndrome and also carpal 
 
         tunnel syndrome and sent claimant to see John C. Goldner, M.D., 
 
         in Omaha (Ex. 22, p. 1 & Exs. 23 & 24).  Dr. Goldner reported 
 
         pain in the left shoulder, arm and hand--swelling in the hand has 
 
         been occurring since July of 1983 (Ex. 19).  Then, Ronald A. 
 
         Cooper, M.D., a neurologist in Dr. Goldner's office said that he 
 
         saw claimant on March 9, 1984.  Dr. Cooper reported on March 12, 
 
         984, that claimant had carpal tunnel syndrome and also skeletal 
 
         pain in the left shoulder which was not directly related to the 
 
         carpal tunnel syndrome.  Dr. Cooper reported that claimant has 
 
         had intermittent shoulder pain over the years and that it has 
 
         been variously diagnosed as bursitis and tenosynovitis (Ex. 20). 
 
          Dr. Cooper saw claimant again on December 27, 1985, at the 
 
         request of defendants' counsel and made a report dated December 
 
         30, 1985.  Dr. Cooper said claimant had carpal tunnel surgery in 
 
         April of 1984, and had good results.  She no longer had any 
 
         carpal tunnel syndrome symptoms.  However, she continued to have 
 
         pain in the left shoulder.  Movements of the shoulder, especially 
 
         reaching and pressure on the shoulder, cause her discomfort.  
 
         Claimant had full strength but loss of range of motion in the 
 
         left shoulder.  There was pain on palpitation of the left 
 
         shoulder joint itself.  He found that claimant had no specific 
 
         neurologic abnormalities.  The exact etiology of her shoulder 
 
         pain was unknown.  Dr. Cooper concluded by saying that the carpal 
 
         tunnel syndrome was related to work and he suspected that the 
 
         shoulder problems were aggravated by certain types of lifting 
 
         procedures that she may be required to do at work (Ex. 21).
 
         
 
              Dr. Crabb performed the carpal tunnel surgery on the left 
 
         hand on April 2, 1984 (Exs. 25 & 26).  Dr. Crabb reported to the 
 
         insurance carrier on July 23, 1984, that claimant continued to 
 
         have problems with her left shoulder.  He said Dr. Cooper did not 
 
         think that claimant had a shoulder/hand syndrome, but rather 
 
         musculoskeletal pain in the left shoulder that was unrelated to 
 
         the carpal tunnel syndrome (Ex. 28).  Dr. Crabb stated that the 
 
         shoulder injury was more than likely related to her work (Ex. 
 
         28).  Again on September 24, 1984, Dr. Crabb wrote to the 
 
         insurance carrier that the shoulder bursitis was indeed work 
 
         related (Ex. 32).  Dr. Crabb saw claimant several times for the 
 
         left shoulder injury (Exs. 23-24, 27-31, & 33-37).
 
         
 
              On June 8, 1985, Dr. Crabb evaluated claimant's left 
 
         shoulder as follows:
 
         
 
              Left Shoulder    Impairment %
 
         
 
              95 degrees        5 l/2%
 
              15 degrees            2%
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   6
 
         
 
         
 
              80 degrees            8%
 
              50 degrees         21/2%
 
              40 degrees            8%
 
              40 degrees            0%
 
         
 
         (Ex. 38)
 
         
 
              Dr. Crabb said.that the left upper extremity totaled 26 
 
         percent,which converted to 16 percent of the body as a whole. He 
 
         stated that he used the Guides to the Evaluation of Permanent 
 
         Impairment, second edition, published by the American Medical 
 
         Association.
 
         
 
              In the course of claimant's treatment, Dr. Crabb referred 
 
         claimant to W.R..Hamsa, M.D., an orthopedic surgeon in Omaha.  He 
 
         examined claimant on August 10, 1984.  He said that the left 
 
         shoulder has restricted abduction and external rotation having 
 
         about 75 percent of normal range of motion with pain on extremes 
 
         of external rotation.  He stated that claimant might have trouble 
 
         raising her arm above her head.  He did not feel that surgery or 
 
         steroids were indicated (Ex. 42).  In a letter to defendants' 
 
         counsel dated February 11, 1986, Dr. Hamsa said that claimant's 
 
         problems began several years ago with distress in the left 
 
         shoulder aggravated or produced by her employment which required 
 
         repetitive use of the upper extremities.  The patient has had a 
 
         continuous problem of distress in her left shoulder.  Although he 
 
         had not seen claimant since August 10, 1984, he said that 
 
         claimant has a normal active and passive motion about the 
 
         shoulders, elbow, wrist and all digits of both hands with obvious 
 
         pain in the left shoulder with abduction and external rotation.  
 
         With forced internal or external rotation the patient has 
 
         moderate shoulder pain (Ex. 43).  Dr. Hamsa concluded as 
 
         follows:
 
         
 
              My impression is that the patient has:
 
         
 
              1)  Recurrent tendonitis or bursitis, both shoulders, 
 
              left more than right with main findings being in the 
 
              rotator cuff and biceps groove. 2)  Historical carpel 
 
              [sic] tunnel, left wrist requiring surgical 
 
              decompression.
 
         
 
              I don't have anything particularly to suggest except 
 
              symptomatic support in the way of treatment.
 
         
 
              In reply to your questions concerning this problem it 
 
              would seem that her main impairment or disability seems 
 
              to be chronicity of symptoms.  The patient has 
 
              basically a normal physical examination, and disability 
 
              rating is generally determined by loss of motion, 
 
              evidence of atrophy or X-ray change.  I think the 
 
              patient is quite legitimate in her complaints and has 
 
              demonstrated that she wants to continue working despite 
 
              her problem.  It would seem to me that if she could be 
 
              employed in something that does't [sic] require 
 
              repetitive motions of the shoulders or arms, her 
 
              symptoms might be somewhat improved.
 
         
 
         (Ex. 43, p. 2)
 
         
 
              Claimant was examined at the request of her counsel by Horst 
 
         G. Blume, M.D., Ph.D., on August 14, 1986.  Dr. Blume wrote to 
 
         claimant's counsel on January 13, 1987, that claimant had long 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   7
 
         
 
         
 
         standing shoulder pain which was constant.  With extensive use of 
 
         her left hand and arm the pain extends upward into her neck and 
 
         down into the extensor aspect of her upper left arm.  There is 
 
         tenderness in the anterior, superior and posterior aspects of the 
 
         left shoulder joint territory going down into the deltoid muscle, 
 
         left, as well as the superior border of the trapezius and along 
 
         the mid and lower cervical spine on the left side (Ex. 45).  Dr. 
 
         Blume's diagnosis was:
 
         
 
              The patients condition was diagnosed as status post 
 
              carpal tunnel surgery on the left with no motor or 
 
              sensory deficit or any discomfort from the surgery; 
 
              chronic distress to left shoulder girdle with painful 
 
              impaired range of motion of the left shoulder girdle 
 
              with myofascial pain syndrome related due to different 
 
              shoulder girdle muscles, especially the trapezius, the 
 
              deltoid and some of the rotator cuff muscles.
 
         
 
         (Ex. 45, p.2)
 
         
 
              Dr. Blume concluded by rating claimant as follows and making 
 
         the following statement concerning causal connection.
 
         
 
              My evaluation of the left shoulder impairment, the 
 
              percentage calculated in the AMA book "Guides to 
 
              Evaluation of Permanent Impairment", is as follows.  
 
              Forward elevation - 65 degrees - 9%; Backward elevation 
 
              - 30 degrees - impairment is 4%; abduction - 20 degrees 
 
              14% impairment; adduction - 55 degrees - 3% impairment; 
 
              external outward rotation - 25 degrees - 10% 
 
              impairment; internal rotation - 20 degrees - 3% 
 
              impairment.  This is a total of 43% to the left upper 
 
              extremity.  Therefore, it is my opinion within 
 
     
 
         
 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   8
 
         
 
         
 
              reasonable medical probability that the patient has a 
 
              permanent partial impairment of the left upper 
 
              extremity of 43% which is a 26% permanent partial 
 
              impairment to the body as a whole as a result of her 
 
              work activities at Farmland Foods.
 
         
 
         (Ex. 45, p. 2)
 
         
 
              It is also noted that a Preliminary Notification of 
 
         Disability Claim was completed on September 21, 1984, and signed 
 
         by LeRoy Gerken, personnel supervisor for employer, which 
 
         certifies that (1) claimant left work on March 6, 1984, for 
 
         carpal tunnel syndrome and now has bursitis in her left shoulder 
 
         and (2) that the disability was caused while on duty by 
 
         repetitive motion (Ex. 51).
 
         
 
              The absence record of claimant, which was prepared by Wiese, 
 
         shows that claimant only lost three days of work specifically due 
 
         to the left shoulder pain and that these three days were August 
 
         27-29, 1986.  The record further shows that claimant lost no time 
 
         from work after August 29, 1986, until the day of the hearing on 
 
         September 25, 1987 (Ex. 59).
 
         
 
              Claimant has not seen a doctor for treatment for her left 
 
         shoulder since she last saw Dr. Crabb on September 15, 1986 (Ex. 
 
         39).  Claimant testified that she was able to work and perform 
 
         her job but it required regular pain medication in order to 
 
         endure the pain.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on March 6, 1984, which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on March 6, 1984.  
 
         Even though claimant had two previous episodes with her left 
 
         shoulder, which were reported as traumatic injuries, specifically 
 
         when she pulled a muscle while lifting a chamber lid on April 10, 
 
         1980, and when she hit her left shoulder on the guard rail on 
 
         July 20, 1983; nevertheless, the doctors felt that claimant 
 
         suffered from long term left shoulder bursitis and tenosynovitis 
 
         aggravated by the repetitive nature of her work.  Dr. Flood noted 
 
         and reported on April 30, 1980, that claimant had bursitis in 
 
         both shoulders (Ex. 2, p. 1 & Ex. 4).
 
         
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE   9
 
         
 
         
 
              The health nurse, Wiese, apparently suspected a work 
 
         connected problem.  She noted on March 6, 1984, when claimant 
 
         reported left shoulder complaints again, that claimant was doing 
 
         the same job and had the same problem as in July of 1983.  The 
 
         pains never did get better (Ex. 47).
 
         
 
              One specialist, Dr. Cooper, a neurologist, said that 
 
         claimant suffered from this condition intermittently for years 
 
         and that it had been described as bursitis and tenosynovitis (Ex. 
 
         20).  Dr. Cooper said he suspected that the shoulder problem was 
 
         aggravated by certain types of lifting procedures which claimant 
 
         was required to do at work (Ex. 21).
 
         
 
              Dr. Crabb, the primary treating physician and a company 
 
         doctor also, said that the shoulder injury was more than likely 
 
         related to her work (Ex. 28).  On September 24, 1984, Dr. Crabb 
 
         unequivocally told the insurance carrier that the shoulder 
 
         bursitis was "indeed work related" (Ex. 32).
 
         
 
              Another specialist, Dr. Hamsa, an orthopedic surgeon who was 
 
         retained by the company doctor, stated that the problem began 
 
         several years ago with distress in the left shoulder aggravated 
 
         and produced by her employment which required her to use the 
 
         upper extremities.  He recommended employment that did not 
 
         require repetitive use of the shoulders (Ex. 43).
 
         
 
              Dr. Blume, another neurosurgeon, stated that claimant's left 
 
         shoulder problem was the result of her work activities at 
 
         Farmland (Ex. 45).
 
         
 
              Therefore, it is determined that claimant did sustain a 
 
         cumulative type of injury and first lost time from work on 
 
         account of the cumulative injury on March 6, 1984.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  In fact, 
 
         this case is quite similar to the McKeever case in that claimant 
 
         in both cases had two earlier traumatic episodes and then 
 
         continued to have small traumas from continued repetitive work 
 
         motions which later culminated in claimant being unable to work.  
 
         In this case, claimant could not work due to both the carpal 
 
         tunnel syndrome and her left shoulder; however, her left shoulder 
 
         was one of the reasons she was not able to work on March 6, 
 
         1984.
 
         
 
              The parties agreed that claimant is entitled to temporary 
 
         disability benefits for both the carpal tunnel surgery and the 
 
         left shoulder injury from March 7, 1984 to October 29, 1984.  The 
 
         parties also agreed that the carpal tunnel syndrome did not 
 
         result in any permanent disability.  There is no evidence in the 
 
         record that the carpal tunnel syndrome was the cause of any 
 
         permanent impairment or disability.  No impairment ratings were 
 
         issued for the carpal tunnel condition.  The physicians state 
 
         that claimant had a good result.  Claimant testified that she had 
 
         a good result from the carpal tunnel surgery.
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that the left shoulder injury was 
 
         the cause of some permanent impairment and disability.  Dr. 
 
         Hamsa, the orthopedic surgeon, stated that claimant had 
 
         difficulty with abduction and that the extremes of external 
 
         rotation were only about 75 percent of normal.  He stated that 
 
         claimant would have a problem raising her arm over her head (Ex. 
 
         42, p. 1).  Later on in his letter to defense counsel, he stated 
 
         that claimant had normal active and passive range of motion and 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE  10
 
         
 
         
 
         that her only impairment or disability seems to be the chronicity 
 
         of symptoms.  He said that claimant had a normal physical 
 
         examination and indicated there was no loss of motion, evidence 
 
         of atrophy or x-ray change.  He recommended work without 
 
         repetitive motions in order for her symptoms to improve (Ex. 43, 
 
         p. 2).
 
         
 
              Dr. Crabb awarded a permanent functional impairment rating 
 
         of 26 percent to the left upper extremity which converts to 16 
 
         percent to the body as a whole.  However, as defendants' counsel 
 
         detected and pointed out, he made an error in his calculations.  
 
         The correct application of his data would result in a permanent 
 
         functional impairment rating of 23 percent of the left upper 
 
         extremity and 14 percent of the body as a whole (Ex. 38).
 
         
 
              Dr. Blume, claimant's evaluator, arrived at a permanent 
 
         functional impairment rating of 43 percent of the left upper 
 
         extremity, which converts to 26 percent of the body as a whole.  
 
         Again, defendants' counsel correctly pointed out that Dr. Blume 
 
         erroneously calculated his basic data and that the correct 
 
         impairment is 37 1/2 percent of the right upper extremity and 22 
 
         percent of the body as a whole (Ex. 45, p. 2).
 
         
 
              No apportionment of loss of earning capacity between 
 
         claimant's preexisting condition, if in fact there was one, and 
 
         the work injury is made because an apportionment is proper only 
 
         when there is some ascertainable disability which existed 
 
         independently before the injury occurred.  Varied Industries v. 
 
         Sumner, 353 N.W.2d 407 (Iowa 1984).  Even though claimant had 
 
         complaints with her left shoulder prior to March 6, 1984, it was 
 
         not demonstrated that claimant had any degree of impairment or 
 
         disability prior to that date.  Furthermore, there was no showing 
 
         that the chronic bursitis and tenosynovitis was attributable to 
 
         any cause outside of her current employment such as employment 
 
         for another employer; caused by her personal activities or caused 
 
         by a condition unrelated to her employment.
 
         
 
              Employer has either eliminated or certainly reduced the loss 
 
         of actual earnings by providing claimant with employment which 
 
         she can do within her limitations.  Claimant should also be 
 
         commended for continuing to work making use of her upper 
 
         extremities in a.repetitive manner when it takes a great deal of 
 
         effort and causes her pain.  She testified that the pain and 
 
         discomfort requires her to take pain medications in order to 
 
         perform her job.  As claimant's counsel pointed out, claimant 
 
         should not be penalized for making an extraordinary effort to 
 
         work under difficult conditions.  Cook v. Iowa Meats, file nos. 
 
         727578 and 771086, appeal decision May 18, 1987.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              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).
 
         
 
              There is no real evidence that the injury to the left 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE  11
 
         
 
         
 
         shoulder is limited to the scheduled member of the arm alone.  
 
         The evidence variously talks about the shoulder, the shoulder 
 
         girdle, the shoulder girdle muscles, the trapezius, deltoids and 
 
         rotator cuff muscles as well as the cervical muscles of the neck.  
 
         Even though one of the issues to be resolved in this case is 
 
         whether claimant sustained a scheduled member injury or an 
 
         industrial disability, it is noted that defendants have not 
 
         argued or contended that the injury is a scheduled member injury 
 
         but have proceeded on the basis that it is an industrial 
 
         disability.  Therefore, it is determined that claimant has 
 
         sustained an industrial disability to the left shoulder.  Lauhoff 
 
         Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); 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 
 
         ( Appeal Decision 1982); Godwin v. Hicklin GM Power, II Iowa 
 
         Industrial Commissioner Report 170 (1981).
 
         
 
              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 disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability can be the same as, less than or 
 
         greater than functional impairment.  Lawyer & Higgs, Iowa 
 
         Workers' Compensation--Law & Practice, section 3-5, p. 116, 1987 
 
         supplement, p. 20.  In this case, the industrial disability is 
 
         less than the highest rating of permanent functional impairment 
 
         by Dr. Blume for the reason that claimant has been able to 
 
         continue to work for three years with only a minimal loss of time 
 
         from work due to the left shoulder.  Employer has provided work 
 
         that claimant can do within her limitations.  McSpadden v. Big 
 
         Ben Coal Co., 228 N.w.2d 181 (Iowa 1980).  Without any loss of 
 
         pay.  Blacksmith v. All-American, 290 N.W.2d 348 (Iowa 1980).
 
         
 
              In those cases in which the employee has returned to 
 
              work for the employer for whom he was working at the 
 
              time of injury, the argument is made that no industrial 
 
              disability has been suffered.  In most cases, some 
 
              award will be made.
 
         
 
         (Lawyer & Higgs, section 13-5, p. 117)
 
         
 
              A showing that claimant had no loss of actual earnings as a 
 
         result of a work injury does not preclude a finding of industrial 
 
         disability.  Michael v. Harrison Co., Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 218, 220 (Appeal Decision 
 
         1979).
 
         
 
              A loss of earning capacity can occur without a loss in 
 
         actual earnings.  Larson, Workmen's Compensation Law, section 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE  12
 
         
 
         
 
         57.21(c), p. 10-101 and section 51.21(d), pp. 10-113 and 10-125.
 
         
 
              The basic element to be determined however, is a reduction 
 
         in the value of general earning capacity of the person rather 
 
         than the loss of actual wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa appeals 1977), 100 ALR third 143; 2 Larson, sections 
 
         57.21 and 57.31.
 
         
 
              Claimant testified that it is difficult to work with 
 
         constant pain in her shoulder all of the time.  She has been 
 
         looking for other employment.  Even Dr. Hamsa, who did not find 
 
         any functional impairment, granted that claimant would have 
 
         difficulty in lifting her arm above her head.  He added that she 
 
         only had approximately 75 percent of normal external rotation.  
 
         Dr. Crabb's data correctly computed resulted in a 14 percent 
 
         functional impairment of the body as a whole.  Dr.  Blume's data, 
 
         correctly calculated, results in a 22 percent impairment of the 
 
         body as whole.  If claimant is no longer able to perform 
 
         production line work, which requires repetitive motions of her 
 
         upper extremities, then, many of the highest paying and easiest 
 
         to obtain jobs are foreclosed to her.  Michael, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 21-8, 219; 
 
         Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (1981).  Whether claimant can continue to 
 
         perform repetitive motion work in the meat processing industry 
 
         until age 65 or an even earlier retirement date is questionable.  
 
         Claimant has no formal education beyond the tenth grade of high 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE  13
 
         
 
         
 
         school.  To change careers, acquire new skills or to obtain 
 
         additional education would require substantial rehabilitation for 
 
         a women age 41 with a family that has become dependant on her 
 
         income.
 
         
 
              Claimant was 37 years old at the time of the injury and 41 
 
         years old at the time of the hearing.  She is, therefore, in the 
 
         middle part of her working life. her loss of future earnings from 
 
         employment, due to her disability, is more serious than would be 
 
         the case for a younger or older individual.  Becke v. 
 
         Turner-Busch Inc., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 34 (1979); Walton v. B and H Tank Corp., 
 
         II Iowa Industrial Commissioner Report 426 (1981).  The basis for 
 
         the determination of industrial disability in this case is based 
 
         however, on the degree of impairment of the left shoulder, 
 
         primarily.
 
         
 
              In conclusion, based on all of the foregoing considerations 
 
         and all of the factors that are used to evaluate industrial 
 
         disability, it. is determined that claimant has sustained an 
 
         industrial disability of 15 percent of the body as a whole.
 
         
 
              Claimant is entitled to the payment of medical expenses.  No 
 
         decision is made with respect to an Iowa Code section 85.39 
 
         examination.
 
         
 
              Claimant's action is timely brought with respect to Iowa 
 
         Code section 85.26.  The injury date is determined to be March 6, 
 
         1984, which is the date when she first lost work due to the left 
 
         shoulder injury.  The original notice and petition was served on 
 
         both defendants and received in the industrial commissioner's 
 
         office on July 11, 1985.  Therefore, the petition is timely.
 
         
 
              Claimant's healing period entitlement is established by the 
 
         parties' pretrial stipulation.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant started to work for employer in March of 
 
         1977.
 
         
 
              That claimant developed bursitis and tenosynovitis in her 
 
         left shoulder in approximately April of 1980.
 
         
 
              That Dr. Cooper, a neurologist, and Dr. Hamsa, a 
 
         neurosurgeon, determined that claimant's left shoulder bursitis 
 
         and tenosynovitis was long standing and was aggravated by the 
 
         repetitive nature of her work.
 
         
 
              That claimant left work for treatment of this injury along 
 
         with a carpal tunnel syndrome injury on March 6, 1984.
 
         
 
              That claimant sustained an injury to the body as a whole 
 
         rather than to the left arm.
 
         
 
              That Dr. Crabb stated that claimant's left shoulder injury 
 
         was caused by work and awarded a 14 percent permanent functional 
 
         impairment rating of the body as a whole.
 
         
 
              That Dr. Blume stated that claimant's left shoulder injury 
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE  14
 
         
 
         
 
         was a result of her work at Farmland and awarded a 22 percent 
 
         permanent functional impairment rating of the body as a whole.
 
         
 
              That the date of injury is March 6, 1984, and that the 
 
         original notice and petition was filed and served on defendants 
 
         on July 11, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
             That claimant sustained an injury on March 6, 1984, to her 
 
         left shoulder, which arose out of and in the course of her 
 
         employment with employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to 75 weeks of permanent partial 
 
         disability based upon an industrial disability of 15 percent to 
 
         the body as a whole.
 
         
 
              That claimant is entitled to reasonable medical benefits, 
 
         except no determination is made with respect to an Iowa Code 
 
         section 85.39 examination.
 
         
 
              That this action was timely brought pursuant to Iowa Code 
 
         section 85.26.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant thirty-three point seven one 
 
         four (33.714) weeks of healing period benefits for the period 
 
         from March 7, 1984 to October 29, 1984 at the rate of two hundred 
 
         fifty-five and 92/100 dollars ($255.92) per week in the total 
 
         amount of eight thousand six hundred twenty-eight and 09/100 
 
         dollars ($8,628.09) as stipulated by the parties.
 
         
 
              That defendants pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability at the rate of two hundred 
 
         fifty-five and 92/100 dollars ($255.92) per week in the total 
 
         amount of nineteen thousand one hundred ninety-four dollars 
 
         ($19,194) commencing on October 29, 1984.
 
         
 
              That defendants are entitled to a credit for thirty-six 
 
         point four two nine (36.429) weeks of workers' compensation 
 
         benefits paid prior to hearing as stipulated.
 
         
 
              That these amounts are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay the costs of this action 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.
 

 
         
 
         
 
         
 
         SACHAU V. FARMLAND FOODS
 
         PAGE  15
 
         
 
         
 
         
 
              Signed and filed this 14th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney-at-Law
 
         P.O. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Judith Ann Higgs
 
         Attorney-at-Law
 
         200 Home Federal Bldg
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1106; 1402.20; 1402.30;
 
                                                 1402.40; 1803; 2209
 
                                                 Filed October 14, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DORENE K. SACHAU
 
         
 
              Claimant,
 
                                                   File No. 759191
 
         vs.
 
                                                A R B I T R A T I O N
 
         FARMLAND FOODS,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1106; 1402.20; 1402.30; 1402.40; 1803; 2209
 
         
 
              It was determined that claimant sustained an injury which 
 
         arose out of and in the course of employment with employer of a 
 
         cumulative nature due to repetitive work on the cry-o-vac 
 
         machine.
 
         
 
              Claimant awarded 15 percent industrial disability based on 
 
         impairment ratings of 14 and 22 percent.  Claimant was still 
 
         performing one of her old jobs for employer at the time of 
 
         hearing but was looking for other work on the advice of 
 
         physicians.