BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ANDREW M. KENNEBECK,
 
         
 
              Claimant,                            File No. 762999
 
         
 
         vs.
 
                                                     A P P E A L
 
         
 
         IOWA BEEF PROCESSORS, INC.,
 
                                                   D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding and joint exhibits 1 through 9.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Defendant states the following issue on appeal:  Whether the 
 
         deputy erred in awarding claimant 10 percent industrial 
 
         disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
         
 
              Briefly stated, 24-year-old claimant with a high school 
 
         education worked for defendant as a "gutter," which required him 
 
         to use a large knife on hog carcasses.  Claimant would "gut" 
 
         approximately 800 hogs per hour.
 
         
 
              On April 25, 1984, claimant accidentally stuck a gutter 
 
         knife into his own abdomen.  He was taken to the Buena Vista 
 
         County Hospital by ambulance and had surgery as a result of his 
 
         injury.  He was released to return to work on June 4, 1984 
 
         without medically-imposed restrictions.  Claimant then bid into 
 
         other jobs at Iowa Beef Processors:
 
         
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   2
 
         
 
         
 
              Q.  And how long did you work as a gutter again?
 
              A.  I stayed up there for two or three months.  And then I 
 
              bid off to a different job.
 
         
 
              Q.  What job did you bid off to?
 
         
 
              A.  I bid off to the stunner job.
 
         
 
              Q.  What is a stunner?
 
         
 
              A.  Well, a stunner while the hog is still alive is stunned 
 
              by the stunner, and that's all he does is stuns the hogs.
 
         
 
         
 
                 ....
 
         
 
              Q.  Okay. Why was there a change in your position?  Why did 
 
              you go from a gutter to a stunner?
 
         
 
              A.  I just didn't want to do that gutter job any more.  It 
 
              was getting to be too much.
 
         
 
              Q.  Could you explain what you mean by that?
 
         
 
              A.  Well, it was too much work, you know, to be doing it all 
 
              day.  Be too wore out at the end of the day.
 
         
 
              Q.  After you returned to this gutter position did you 
 
              experience any physical problems?
 
         
 
              A. It was more of an overall weakness than one, you know, 
 
              when I did use certain muscles it felt like a real sharp 
 
              pulling in my stomach, you know, like it was ripping muscle 
 
              apart or something.
 
         
 
              Q.  Did you have these problems before the accident?
 
         
 
              A.  No.
 
         
 
                 ....
 
         
 
              Q.  And you were earning approximately 6.50 an hour as a 
 
              gutter?
 
         
 
              A.  Yes.
 
         
 
              Q.  Now you're back down to a Grade 1, which is the stun; is 
 
              that correct?
 
         
 
              A.  Yes.
 
         
 
              Q.  And that pays 6.25 an hour?
 
         
 
              A.  Yes.
 
         
 
              Q.  So in essence you were losing 25 cents an hour by going 
 
              from a gutter to a stun?
 
         
 
              A.  Yes.
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   3
 
         
 
         
 
         
 
              Q.  And where did you move on to after that?
 
         
 
              A.  From there I moved on to a shave job which is also a 
 
              Grade 1.
 
         
 
              Q.  What is a shave job?
 
         
 
              A.  A shave job is use the shave knife.  It's a rather large 
 
              knife and what you do is you shave the remaining hair off 
 
              the side of the hogs.
 
         
 
              Q.  How would you compare that job with the job as a gutter 
 
              as far as physical demands of the job?
 
         
 
              A.  It was much easier because you only have--you only use a 
 
              knife in one hand and that's all you have to do.  I mean, 
 
              you just have to use your one hand and your one arm.  As a 
 
              gutter you have to use your knife in one hand plus lift and 
 
              pull the gut, which they're heavy.  They weigh around 50 
 
              pounds or more.  Lot of them do.
 
         
 
              Q.  So in essence being a stun is less strenuous than being 
 
              a gutter?
 
         
 
              A.  Yes. And shaving is less than a stun.
 
         
 
                 ....
 
         
 
              Q.  Have you held any other positions at IBP other than a 
 
              stun or a shaver since you returned to work after the 
 
              injury?
 
         
 
                 ....
 
         
 
              A. I bid onto the split saw.
 
         
 
              Q.  What is a split saw?
 
         
 
              A.  Split saw, you split the back of the hog after the hog's 
 
              already been gutted.  That was a Grade 3 job.
 
         
 
              Q.  So that would pay more?
 
         
 
              A.  It paid a quarter more than the gutter job.
 
         
 
                 ....
 
         
 
              Q.  What happened?  Why aren't you presently a splitter?
 
         
 
              A.  It was just way too much work for this guy.
 
         
 
              Q.  How did it bother you being a splitter physically?
 
         
 
              A.  It was you had to use a lot of effort, and I couldn't do 
 
              it.  I bid off it right away.
 
         
 
              Q.  Well, you say you couldn't do it.  What type of 
 
              problems, Mr. Kennebeck, physically were you experiencing, 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   4
 
         
 
         
 
              if any, during the time that you were a splitter?
 
         
 
              A.  The split saw, it's a big saw, and it's hanging from a 
 
              cable.  But you still have to lift it.  You lift it up and 
 
              you put it up into the hog's back and then you got to force 
 
              it down through the hog.
 
         
 
                 ....
 
         
 
              Q.  Okay.  But what, if you can, you know, it may be hard, 
 
              but it you detail as to the particular type of physical 
 
              problems that you were feeling which made you feel that you 
 
              couldn't continue as a splitter?
 
         
 
              A.  Well, first we had to lift it up and then as you force 
 
              it down through you're doing a lot of bending over, and I 
 
              couldn't take it.
 
         
 
              Q.  Did you have any of these problems prior to April 24, 
 
              1984--or April 25, 1984?
 
         
 
              A.  No.
 
         
 
              Q.  What part--specific part of your body would you feel 
 
              strain or aches or whatever in while you were doing this 
 
              type of work as a splitter?
 
         
 
              A.  Well, on that splitter job it was more in my shoulders 
 
              and arms than in my stomach area.
 
         
 
              Q.  Did you have any problem, with your stomach area at that 
 
              time?
 
         
 
              A.  Not specifically on that job, no.
 
         
 
         (Transcript, pages 16-22)
 
         
 
              Claimant is currently paid $7.75 per hour as a shaver for 
 
         Iowa Beef Processors.  The gutter job currently pays $8.00 per 
 
         hour.
 
         
 
              Claimant testified that he now has problems with his lower 
 
         back area.  On July 11, 1986, claimant saw Paul From, M.D., and 
 
         complained of weakness in his abdomen and a "problem in the lower 
 
         left side."
 
         
 
              Claimant testified that he currently feels weak and out of 
 
         shape.  He did not have this feeling prior to April 25, 1984.  He 
 
         has returned to some sporting activities but he is not able to 
 
         play basketball as he used to be able to do.  Claimant stated he 
 
         has not missed work since his return to Iowa Beef Processors in 
 
         June 1984.
 
         
 
              On April 16, 1985, K. M. Johannsen, M.D., stated:
 
         
 
                 The Buena Vista Clinic office records indicate that Mr. 
 
              Kennebeck returned on 10/25/84 to see Dr. Arthur Ames 
 
              requesting a general examination in reference to his 
 
              previous abdominal injury.  His complaints were those of 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   5
 
         
 
         
 
              intermittent backaches and some discomfort in his chest 
 
              associated with hard work.  Dr. Ames' examination was 
 
              essentially negative but Mr. Kennebeck did complain of lower 
 
              back discomfort with flexion, extension and lateral bending.  
 
              A blood count and urinalysis were normal.  I do not 
 
              associate the above mentioned complaints with his abdominal 
 
              injury.
 
         
 
                 In summary then, based on my last examination of 6/l/84, 
 
              Mr. Kennebeck has made an uneventful recovery from his 
 
              injuries and without evidence of any permanent disability.  
 
              I have reviewed the AMA Guides to the Evaluation of 
 
              Permanent Impairment pages 113-115, and find nothing to 
 
              substantiate or suggest a permanent disability for this type 
 
              of injury.
 
         
 
         (Joint Exhibit 2)
 
         
 
              On July 15, 1986, Paul From, M.D., opined:
 
         
 
                   Mr. Kennebeck did sustain a significant laceration of 
 
              his intra-abdominal organs during a work injury or April 25, 
 
              1984.  This did occasion an appendectomy as well as a 
 
              laparotomy to repair the laceration.  He has done well and 
 
              has been able to return to work since the surgery, although 
 
              he still has significant abdominal complaints.  It would 
 
              appear that he has either an irritable bowel syndrome, 
 
              gastritis and/or duodenitis or duodenal ulcer, or is 
 
              developing adhesions from the extensive inflammatory 
 
              reaction that would have been present at the time his 
 
              gastric contents spilled into the peritoneal cavity.  He 
 
              will need occasional and periodic evaluations to make sure 
 
              that no obstruction develops or that any definite peptic 
 
              ulcer disease is present.  I would estimate his permanent 
 
              partial impairment at this time of 5 to 10%.
 
         
 
         (Jt. Ex. 7)
 
         
 
              On December 6, 1986, David T. Sidney, M.D., stated:
 
         
 
                 His complaints now, at this time, are that he continues 
 
              to have a "weakness in his abdomen.O...
 
         
 
              ...He does complain of some back problems on the left side, 
 
              that at least, temporally, relate to his accident at Iowa 
 
              Beef Packing.
 
         
 
                 On examination, this is a healthy, well-built, 
 
              well-nourished young man in no acute distress ....
 
         
 
                 Mr. Kennebeck had an upper G.I. series today down at 
 
              Radiology, P.C.  I have enclosed a copy for your 
 
              information.  This x-ray of his stomach was entirely 
 
              normal.
 
         
 
                 Mr. Kennebeck has, indeed, suffered injury on the job.  
 
              He, however, has returned to normal employment. he says he 
 
              also is playing sports and bowling, and does not feel 
 
              restricted in any of his activities.  He does admit that he 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   6
 
         
 
         
 
              is basically a healthy fellow.  I do not feel he has 
 
              suffered any permanent disability from this injury.  His 
 
              symptoms, of which he does complain, are at least temporally 
 
              related, but I cannot associate them with the incident 
 
              themselves.  I would expect him to continue on a fully 
 
              recovered course without any resulting disability from this 
 
              incident.
 
         
 
         (Jt. Ex. 5)
 
         
 
                                  APPLICABLE LAW
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
         Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs 
 
         Sportswear, 332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              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 OdisabilityO to mean 
 
         'industrial disabilityO or loss of earning capacity and not a 
 
         mere 
 
         
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   7
 
         
 
         
 
         'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted. * * * *
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc 
 
         Neither does a rating of functional impairment directly correlate 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   8
 
         
 
         
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
          See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Industrial disability relates to a reduction in earning 
 
         capacity rather than a change in actual earnings.  Michael v. 
 
         Harrison County, 34 Biennial Report, Iowa Industrial 
 
         Commissioner Report 216, 220 (Appeal Decision, 1979)
 
         
 
                                     ANALYSIS
 
         
 
              The question on appeal is the extent of claimant's 
 
         disability.  The nonmedical evidence consists of claimant's 
 
         assertion that subsequent to his injury of April 25, 1984, he is 
 
         unable to perform the duties of his job as a "gutter."  Claimant 
 
         is still employed by defendant in a different capacity, but at a 
 
         lower hourly rate of compensation than the gutter's job he was 
 
         performing prior to his injury.
 
         
 
              Claimant was unable to perform a more strenuous job which 
 
         paid more money.  However, claimant indicates that he was unable 
 
         to perform the splitter's job because of resulting pain in his 
 
         arms and shoulders.  Claimant did not relate his inability to 
 
         perform the splitterOs job to his stomach injury, and indicated 
 
         he quit this job because it was too much work.
 
         
 
              The medical evidence presented is contradictory.  Dr. Sidney 
 
         states that claimant does not suffer any "permanent Odisability." 
 
         Dr. Johannsen makes reference to the AMA Guides to the Evaluation 
 
         of Permanent Impairment and then concludes that claimant does not 
 
         suffer a "permanent disability."
 
         
 
              Dr. From attributed claimant's condition to irritable bowel 
 
         syndrome, gastritis or duodenitis resulting from the spillage of 
 
         stomach contents into the peritoneal cavity.  Dr. From has 
 
         assigned claimant a permanent partial impairment rating of 5 to 
 
         10 percent.
 
         
 
              Dr. Johannsen is claimant's treating physician.  Dr. 
 
         Johannsen observed claimant on more occasions than did Dr. From, 
 
         and Dr. Johannsen observed claimant over a longer period of time.  
 
         Dr. Johannsen observed claimant closer in time to his injury than 
 
         did Dr. From and Dr. Johannsen performed the surgery to repair 
 
         claimantOs stomach injury.  Dr. Johannsen consulted the AMA 
 
         Guides to the Evaluation of Permanent Impairment in forming his 
 
         opinion.  Dr. Sydney's opinion, which was in part based on an 
 
         x-ray of claimant's stomach, corroborates the opinion of Dr. 
 
         Johannsen.  Thus, the opinions of Dr. Sydney and Dr. Johannsen 
 
         will be given the greater weight.  Claimant has failed to prove 
 
         he suffered any permanent impairment as a result of his injury of 
 
         April 25, 1984.
 
         
 
                                 FINDINGS OF FACT
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   9
 
         
 
         
 
         
 
              1.  Claimant is 24 years old.
 
         
 
              2.  Claimant is a high school graduate with no additional 
 
         formal education.
 
         
 
              3.  Claimant worked on a farm and on manual labor jobs prior 
 
         to starting work with Iowa Beef Processors in October 1983.
 
         
 
              4.  On April 25, 1984, claimant cut himself with a knife 
 
         blade while working for Iowa Beef Processors.
 
         
 
              5.  Claimant is currently employed at Iowa Beef Processors.
 
         
 
              6.  Claimant's stipulated rate of weekly compensation is 
 
         $153.94.
 
         
 
              7.  Claimant was off work from April 25, 1984 until June 4, 
 
         1984 as a resuit of his injury Of April 25, 1984.
 
         
 
              8.  Claimant has not suffered any permanent physical 
 
         impairment as a result of his injury of April 25, 1984.
 
         
 
              9.  Claimant's inability to perform the job duties of a 
 
         spatter are not related to his stomach injury of April 25, 1984.
 
         
 
             10. Claimant's back problems are not related to his stomach 
 
         injury of April 25, 1984.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has not suffered any permanent physical impairment 
 
         as a result of his injury of April 25, 1984.
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant is to pay unto claimant temporary total 
 
         disability benefits from April 25, 1984 until June 4, 1984 at the 
 
         rate of one hundred fifty-three and 94/100 dollars ($153.94) per 
 
         week.
 
         
 
              That defendant is to be given credit for benefits previously 
 
         paid.
 
         
 
              That defendant is to pay the costs of this action including 
 
         the cost of the transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 24th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page  10
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert E. McKinney
 
         Attorney at Law
 
         48O Sixth Street
 
         P.O. Box 209
 
         Waukee, Iowa 50263-0209
 
         
 
         Mr. E. S. Bikakis
 
         Attorney at Law
 
         340 Insurance Exchange Bldg.
 
         Sioux City, Iowa 51101
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1803
 
                                                       Filed June 24, 1988
 
                                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         ANDREW M. KENNEBECK,
 
         
 
              Claimant,                               File No. 762999
 
         
 
         VS.
 
                                                        A P P E A L
 
         IOWA BEEF PROCESSORS, INC.,
 
         
 
              Employer,                               D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant was still employed by the same employer after his 
 
         injury, but no longer able to perform the duties of his prior 
 
         job.  However, the medical evidence failed to show that his 
 
         inability to perform his prior job was related to his injury.  
 
         Claimant awarded temporary total disability benefits only.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ANDREW M. KENNEBECK,
 
         
 
              Claimant,
 
                                                 File No. 762999
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         IOWA BEEF PROCESSORS, INC.,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Andrew M. 
 
         Kennebeck, claimant, against Iowa Beef Processors, Inc., Pork 
 
         Division (IBP), self-insured employer, for benefits as a result 
 
         of an alleged injury on April 25, 1984.  A hearing was held in 
 
         Storm Lake, Iowa, on February 5, 1987 and the case was submitted 
 
         on that date.
 
         
 
              The record consists of the testimony of claimant, and joint 
 
         exhibits 1 through 9. Neither party filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $153.94; that claimant was off work from April 
 
         26, 1984 through June 3, 1984; that permanency benefits, if 
 
         awarded, would commence on June 4, 1984; and that claimant's 
 
         injury of April 25, 1984 arose out of and in the course of his 
 
         employment with IBP.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal connection between the injury 
 
         of April 25, 1984 and claimant's asserted disability; and
 
         
 
              2)  Nature and extent of disability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 24 years of age and is not 
 
         currently married as he was divorced in May 1986.  He graduated 
 
         from high school in 1980 and has no other formal education, 
 
         including no trade school background.  He has no military 
 
         experience.  Claimant worked while in high school starting in his 
 
         sophomore year doing farm work such as operating machinery.  
 
         After high school, claimant was employed in Houston, Texas, using 
 
         a nail gun and saws and was paid about $5.50 to $6.00 per hour 
 
         during a one-year period of employment.  He then returned to Iowa 
 
         and worked on a farm for just over a year (this took him up to 
 
         about 1983).  He next worked for a fertilizer company mixing dry 
 
         fertilizer and ran a small tractor and loader.  He then did field 
 

 
         work on a farm from June 1983 through October 1983.
 
         
 
              Claimant testified that he was hired by IBP in October 1983 
 
         and that he is presently employed by this employer.  He stated 
 
         that he did not sustain any other injuries while working for the 
 
         employers described above other than the injury in question.  
 
         Prior to April 25, 1984, claimant had not been involved in any 
 
         accidents nor was he ever hospitalized.  He had never experienced 
 
         any serious illness or chronic health problem prior to April 25, 
 
         1984.  After April 25, 1984, he has not sustained any other 
 
         injury other than the one in question.
 
         
 
              When claimant started working for IBP, he started at grade 0 
 
         doing cleanup up as a floor janitor for $6.00 an hour.  He worked 
 
         on this job for three or four months and then "went on the line." 
 
         He was paid $6.50 per hour on the line working at the IBP plant 
 
         in Storm Lake, Iowa.  He worked doing a gutter job which involved 
 
         removing the insides of hogs and he used a six-inch gutter knife 
 
         in order to accomplish this job.  There were three gutters 
 
         working the line and he would gut about one-third of 800 hogs per 
 
         hour, eight hours per day.  He did this job until he was injured 
 
         on April 25, 1984.
 
         
 
              On April 25, 1984, claimant accidently stuck a gutter knife 
 
         into his abdomen.  He was taken to the Buena Vista County 
 
         Hospital by ambulance and was in the hospital for seven days.  He 
 
         described the doctors that treated him and stated that he had 
 
         surgery as a result of his injury of April 25, 1984.  He was 
 
         released to return to work on June 4, 1984 without medically 
 
         imposed restrictions.  However, he did not return to his gutter 
 
         job, and instead returned to a cleanup job for two or three 
 
         weeks.  He then was sent back to the gutter job because he "was 
 
         needed up there."  Also, the cleanup job paid  $.50 per hour less 
 
         than the gutter job.  The gutter job was classified as a grade 2 
 
         job.  When the gutter job started "getting to be too much" 
 
         claimant bid on another job.  The gutter job made him worn out at 
 
         the end of the day.  As a gutter he experienced "overall 
 
         weakness" and "stomach weakness." He thought this weakness 
 
         affected his job performance and concluded he was not doing a 
 
         good job as a gutter even though he was trying.  The job he bid 
 
         on in order to stop doing the gutter job involved working with 
 
         two prongs (one in each hand).  This job paid  $.25 per hour less 
 
         than the gutter job as it was classified as a grade 1 position.  
 
         This new job paid $6.25 per hour and he was on this job for two 
 
         or three months.  He then went to a shaver job which also was a 
 
         grade 1 position and involved shaving the remaining hair off the 
 
         side of hogs.  He characterized this as much easier than the 
 
         gutter job because you only have to use one knife and one hand.  
 
         The gutter job requires the use of a knife in one hand plus 
 
         pulling the gut which can weigh up to fifty pounds.  Claimant is 
 
         currently doing the shaver job and characterized this as easier 
 
         than the gutter job and the job he was performing immediately 
 
         prior to taking the shaving job.
 
         
 
              At some point after returning to IBP in June 1994, claimant 
 
         bid on a grade 3 job working with a split saw.  In July 1986, he 
 
         started working as a splitter but is presently not doing this job 
 
         as "it was way too much work for this guy." He stated further 
 
         that it "took a lot of effort which I could not do." He testified 
 
         that he could have handled this job physically prior to the 
 
         injury of April 25, 1984.  The splitter job affected his 
 
         shoulders and arms but not his stomach specifically.
 
         
 
              Claimant is currently paid $7.75 per hour as a shaver for 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   3
 
         
 
         
 
         IBP.  The gutter job currently pays $8.00 per hour.
 
         
 
              Claimant testified that he last saw Dr. K. M. Johannsen, 
 
         M.D., on June 1, 1984.  On October 25, 1984, claimant saw a Dr. 
 
         Arthur Ames and stated "Dr. Ames never did anything for me." 
 
         Claimant testified that he now has problems with his lower back 
 
         area.  He also stated that he has problems at night when he 
 
         sleeps.  On July 11, 1986, claimant saw Paul From, M.D., and 
 
         complained of weakness in the "midsection of his abdomen" and 
 
         stated other physical problems in giving a history to Dr. From.  
 
         On December 8, 1986, claimant saw David T. Sidney, M.D., and 
 
         complained of weakness in his abdomen and a "problem in the lower 
 
         left side."
 
         
 
              Claimant testified that he currently feels weak and out of 
 
         shape.  He did not have this feeling prior to April 25, 1984.  
 
         However, he did testify that he has returned to some sporting 
 
         activities but that he is not able to play basketball as he used 
 
         to be able to do.  Claimant now feels weak and this weakness 
 
         comes from the midsection of his body.  This weakness problem has 
 
         remained about the same since April 25, 1984.  However, the six 
 
         to eight week period after his surgery resulted in him being it 
 
         real weak-I' Claimant stated as follows: "After the surgery I did 
 
         not get any better and still haven't."  Claimant is not taking 
 
         any medication currently.
 
         
 
              On cross-examination, claimant acknowledged that he can 
 
         still do carpenter work and farming.  He acknowledged that he can 
 
         do the gutter job or the splitter job.  Claimant is six feet tall 
 
         and weighs about 170 pounds.
 
         
 
              Claimant acknowledged that x-rays show no stomach or 
 
         intestinal problems.  He stated that there has been "no direct 
 
         missing of work since his return" to IBP in June 1984.  He also 
 
         acknowledged that he can currently play baseball and basketball.
 
         
 
              On redirect, claimant testified that he had no problem doing 
 
         the gutter job prior to the injury of April 25, 1984.  Prior to 
 
         the injury of April 25, 1984, claimant was in good shape and now 
 
         notices a difference in strength; that is, claimant is less 
 
         strong today than he was prior to April 25, 1984.  Regarding his 
 
         sporting activities, claimant testified that he "doesn't last 
 
         near as long." He is not now in the same shape as he was prior to 
 
         April 25, 1984.  Claimant has a ten-inch scar on his abdomen as a 
 
         result of the injury of April 25, 1984.
 
         
 
              Claimant acknowledged on cross-examination that he lost 
 
         twenty pounds as a result of the injury immediately after the 
 
         occurrence of the injury.  He also stated that his lifestyle has 
 
         not changed significantly after the April 25, 1984 injury and 
 
         that he drinks alcohol moderately.  He stated that on occasion he 
 
         gets intoxicated.
 
         
 
              Exhibit 2, page 2 (dated April 16, 1985), is authored by K. 
 
         M. Johannsen, M.D., and reads in part:
 
         
 
              [Patient incurred an accidental self-inflicted stab 
 
              wound of the abdomen on 4/25/84 while at work at the 
 
              IBP plant in Storm Lake, Iowa.
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   4
 
         
 
         
 
         
 
              Subsequently, at the time of operation, the patient was 
 
              noted to have a perforated stab wound of the stomach 
 
              with spillage of gastric contents and blood into the 
 
              abdominal cavity.  A repair of the stomach was done and 
 
              incidental appendectomy was carried out.
 
         
 
              Mr. Kennebeck's recovery was uneventful, and he was 
 
              discharged from the hospital on 5/3/84.  Follow-up 
 
              examinations at the Buena Vista Clinic were all of a 
 
              routine nature and the patient had no complaints.  The 
 
              last examination by the undersigned was on 6/l/84 and 
 
              at that time was returned to the care of his own 
 
              physician.  He was authorized to return to work without 
 
              restrictions effective 6/4/84.
 
         
 
              The Buena Vista Clinic office records indicate that Mr. 
 
              Kennebeck returned on 10/25/84 to see Dr. Arthur Ames 
 
              requesting a general examination in reference to his 
 
              previous abdominal injury.  His complaints were those 
 
              of intermittent backaches and some discomfort in his 
 
              chest associated with hard work.  Dr. Ames' examination 
 
              was essentially negative but flexion, extension and 
 
              lateral bending.   A blood count and urinalysis were 
 
              normal.  I do not associate the above mentioned 
 
              complaints with his abdominal injury.
 
         
 
              In summary then, based on my last examination of 
 
              6/l/84, Mr. Kennebeck has made an uneventful recovery 
 
              from his injuries and without evidence of any permanent 
 
              disability.
 
         
 
              Exhibit 3, page 1, is a hospital record from the Buena Vista 
 
         County Hospital and reads in part:
 
         
 
              Final Diagnosis
 
         
 
                   Stab wound, abdomen with partial  evisceration of 
 
                   omentum.  Perforation of the stomach secondary to 
 
                   number one
 
         
 
              Complications
 
         
 
                   None
 
         
 
              Operation
 
         
 
                   Laparotomy with closure of gastric perforation.  
 
                   Incidental appendectomy
 
         
 
              Exhibit 3, page 8, documents the surgery performed on 
 
         claimant on April 26, 1984 and describes the procedure in detail.  
 
         Exhibit 3, page 34 (dated May 22, 1984), is authored by Dr. 
 
         Johannsen and reads as follows: "The above mentioned patient may 
 
         return to work without restrictions on June 4, 1984." Exhibit 4 
 
         documents claimant's attendance at work from 1984 through 1987.
 
         
 
              Exhibit 5, page 2 (dated December 8, 1986), is authored by 
 
         David T. Sidney, M.D., and reads as follows:
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   5
 
         
 
         
 
         
 
              Mr. Kennebeck has, indeed, suffered injury on the job.  
 
              He, however, has returned to normal employment.  He 
 
              says he also is playing sports and bowling, and does 
 
              not feel restricted in any of his activities.  He does 
 
              admit that he is basically a healthy fellow.  I do not 
 
              feel he has suffered any permanent disability from this 
 
              injury.  His symptoms, of which he does complain, are 
 
              at least temporally related, but I cannot associate 
 
              them with the incident themselves.  I would expect him 
 
              to continue on a fully recovered course without any 
 
              resulting disability from this incident.
 
         
 
              Exhibit 7, page 2 (dated July 15, 1986), is authored by Paul 
 
         From, M.D., and reads in part: "Mr. Kennebeck does complain of a 
 
         weakness in the mid section of his abdomen.  He states his 
 
         abdominal area is of a constant bother to him." On page 4, Dr. 
 
         From stated:
 
         
 
              Mr. Kennebeck did sustain a significant laceration of 
 
              his intra-abdominal organs during a work injury of 
 
              April 25, 1984.  This did occasion an appendectomy as 
 
              well as a laparotomy to repair the laceration.  He has 
 
              done well and has been able to return to work since the 
 
              surgery, although he still has significant abdominal 
 
              complaints.  It would appear that he has either an 
 
              irritable bowel syndrome, gastritis and/or duodenitis 
 
              or duodenal ulcer, or is developing adhesions from the 
 
              extensive inflammatory reaction that would have been 
 
              present at the time his gastric contents spilled into 
 
              the peritoneal cavity.  He will need occasional and 
 
              periodic evaluations to make sure that no obstruction 
 
              develops or that any definite peptic ulcer disease is 
 
              present.  I would estimate his permanent partial 
 
              impairment at this time of 5 to 10%.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The threshold fighting issue in this case is whether 
 
         claimant sustained any permanent partial impairment as a result 
 
         of the injury of April 25, 1984.  This is a fact issue given the 
 
         evidence of record.  Dr. Johannsen and Dr. Sidney both state that 
 
         claimant has sustained no permanent "disability." However, Dr. 
 
         From has given claimant a five to ten percent permanent partial 
 
         impairment rating.
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   6
 
         
 
         
 
         information to the attention of the fact finder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact, not as a matter of law.  Rockwell Graphic 
 
         Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              It is concluded that Dr. From's opinion that claimant has 
 
         sustained some permanent partial impairment is persuasive.  It is 
 
         unnecessary to determine the exact percentage of impairment to 
 
         the body as a whole because impairment and disability (loss of 
 
         earning capacity) do not equate in a whole body case.  See, e.g., 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); 
 
         Diederich v. Tri-City Railway Co., 219 Iowa 587, 591-594, 258 
 
         N.W. 899 (1935).  However, it will be found that claimant 
 
         sustained five percent whole body impairment as a result of the 
 
         injury of April 25, 1984.
 
         
 
              II.  As claimant has an impairment to the body as a whole, 
 
         an industrial disability has been sustained.  Industrial 
 
         disability was defined in Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It-is 
 
         therefore plain that the legislature intended the term 
 
         'disability' to mean 'industrial disability' or loss of earning 
 
         capacity and not a mere 'functional disability' to be computed in 
 
         the terms of percentages of the total physical and mental ability 
 
         of a normal man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   7
 
         
 
         
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as A whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              Claimant herein has not suffered a significant loss in 
 
         actual earnings as a result of his injury other than the time he 
 
         was off work during his healing period for which he has already 
 
         been compensated.  However, a showing that claimant has no actual 
 
         loss of earning does not preclude a finding of industrial 
 
         disability.  See Michael v. Harrison County, 34 Biennial Reports, 
 
         Iowa Industrial Commissioner 218, 220 (Appeal Decision 1979) and 
 
         the cases discussed therein.  Claimant's current employment with 
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   8
 
         
 
         
 
         IBP is a consideration in assessing his industrial disability; 
 
         his current employment lessens his industrial disability and 
 
         defendant's resulting liability.
 
         
 
              I am convinced that claimant has sustained some loss of 
 
         earning capacity as a result of his injury of April 25, 1984 and 
 
         resulting permanent partial impairment.  Taking all appropriate 
 
         factors into account, it is concluded that claimant is entitled 
 
         to fifty weeks of permanent partial disability benefits 
 
         commencing on June 4, 1984 at a rate of $153.94 based on an 
 
         industrial disability of ten percent.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant is 24 years old.
 
         
 
              2.  Claimant is a high school graduate with no additional
 
              formal education.
 
         
 
              3.  Claimant worked on a farm and on manual labor jobs prior 
 
         to starting work with IBP in October 1983.
 
         
 
              4.  On April 25, 1984, claimant cut himself with a knife 
 
         blade while working for IBP.
 
         
 
              5.  Claimant sustained a five percent whole body permanent 
 
         partial impairment as a result of his work-related injury of 
 
         April 25, 1984.
 
         
 
              6.  Claimant is currently employed at IBP.
 
         
 
              7.  Claimant has some difficulty currently doing some jobs 
 
         at IBP that he handled without difficulty prior to his injury of 
 
         April 25, 1984.
 
         
 
              8.  Claimant's industrial disability is ten percent.
 
         
 
              9.  Claimant's stipulated rate of weekly compensation is 
 
         $153.94.
 
              
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established a causal connection between his 
 
         work-related injury of April 25, 1984 and some permanent partial 
 
         impairment.
 
         
 
              2.  Claimant established entitlement to fifty (50) weeks of 
 
         permanent partial disability benefits based on an industrial 
 
         disability of ten percent (10%) with such benefits commencing on 
 
         June 4, 1984 at a rate of one hundred fifty-three and 94/100 
 
         dollars ($153.94).
 
                             
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay the weekly benefits described above.
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 

 
         
 
         
 
         
 
         KENNEBECK V. IOWA BEEF PROCESSORS, INC.
 
         Page   9
 
         
 
         
 
         
 
              That defendant be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33, formerly Industrial 
 
         Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, Pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2), as requested by the agency.
 
         
 
         
 
                  Signed and filed this 23rd day of March, 1987.
 
         
 
         
 
         
 
         
 
                                       T. J. McSWEENEY
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert E. McKinney
 
         Attorney at Law
 
         P.O. Box 209
 
         480 Sixth Street
 
         Waukee, Iowa 50263-0209
 
         
 
         Mr. E. S. Bikakis
 
         Attorney at Law
 
         340 Insurance Exchange Bldg.
 
         Sioux City, Iowa 51101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.40; 1803
 
                                                    Filed 3-23-87
 
                                                    T. J. McSweeney
 
         _________________________________________________________________
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ANDREW M. KENNEBECK,
 
         
 
              Claimant,
 
                                                    File No. 762999
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         IOWA BEEF PROCESSORS, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1402.40; 1803
 
         
 
              Held in arbitration that claimant established entitlement to 
 
         fifty (50) weeks of permanent partial disability benefits based 
 
         on an industrial loss of ten percent (10%).  Claimant 
 
         accidentally cut himself while working with a knife at the Storm 
 
         Lake IBP plant.  Defendant asserted at hearing that claimant 
 
         sustained no permanent partial impairment as a result of this 
 
         work-related injury.  A finding of fact was made that claimant 
 
         sustained some permanent partial impairment with some resulting 
 
         loss of earning capacity.
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                                   
 
 YOUNG GEORGE HOUSTON,
 
                                                    File No. 763157
 
                                                    
 
      Claimant,                                       A P P E A L
 
 vs.                            
 
                                                   D E C I S I O N
 
 CATERPILLAR TRACTOR CO.,
 
     
 
      Employer,
 
       Self-Insured,                  
 
 
 
 
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal. The decision of the deputy filed 
 
 March 15, 1991 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 That claimant shall pay the costs of the appeal including the 
 
 transcription of the hearing. Defendant shall pay all other 
 
 costs.
 
 
 
 
 
 
 
 Signed and filed this ~ ~ day of August, 1992.
 
 
 
 
 
 
 
 
 
 
 
                                       BYRON R. ORTON
 
                                  INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. Michael W. Liebbe
 
 Attorney at Law
 
 116 East 6th Street
 
 P O Box 339
 
 Davenport, Iowa  52805
 
 
 
 Ms. Vicki L. Seeck
 
 Attorney at Law
 
 600 Union Arcade Building
 
 Davenport, Iowa  52801
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                  9998
 
                                                  Filed August 26, 1992
 
                                                  BYRON K. ORTON
 
                               
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 YOUNG GEORGE HOUSTON,
 
                                                    File No. 763157
 
        Claimant,
 
                                                      A P P E A L
 
 vs.
 
                                                    D E C I S I O N
 
 CATERPILLAR TRACTOR CO.,
 
 
 
        Employer,
 
        Self-Insured,
 
        Defendant.
 
        
 
        
 
        
 
 9998
 
 
 
 Summary affirmance of deputy's decision filed March 15, 
 
 199 1 .
 
 
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         YOUNG GEORGE HOUSTON,         :
 
                                       :         File No. 763157
 
              Claimant,                :
 
                                       :          R E V I E W -
 
         vs.                           :
 
                                       :        R E O P E N I N G
 
         CATERPILLAR TRACTOR CO.,      :
 
                                       :         D E C I S I O N
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              statement of the case
 
         
 
              This is a proceeding in review-reopening upon the petition 
 
         of claimant filed February 19, 1990.  On March 1, 1984, claimant 
 
         sustained an injury to his neck which arose out of and in the 
 
         course of his employment with defendant-employer.  An arbitration 
 
         decision was filed on January 30, 1987, whereby defendant was 
 
         ordered to pay 10 percent permanent partial disability benefits 
 
         at the rate of $324.18 commencing June 11, 1984 and continuing 
 
         until paid in full.
 
         
 
              The hearing on the petition for review-reopening was held
 
         in Davenport, Iowa on February 28, 1991.  The claimant was 
 
         present and testified.  The record consists of joint exhibits A 
 
         through L.
 
         
 
                                      issue
 
         
 
              Pursuant to the prehearing report and order, the sole issue 
 
         presented for resolution is whether claimant has experienced a 
 
         change of condition since the prior arbitration hearing and, if 
 
         so, the extent of his current industrial disability.
 
         
 
                                 findings of fact
 
         
 
              The undersigned has carefully considered all the testimony 
 
         given at the hearing, the arguments made, and the evidence con
 
         tained in the exhibits herein, and makes the following findings:
 
         
 
              Claimant was born on November 27, 1941 and is a high school 
 
         graduate.  Claimant's work activity has been primarily as a 
 
         mechanic.  He went to work for defendant in March 1974 and held a 
 
         variety of jobs prior to his injury on March 1, 1984.  In the 
 
         arbitration decision, it was determined that claimant suffered an 
 
         injury to his neck and underwent a C5-C6 discectomy and interbody 
 
         fusion.  He was off work from April 23, 1984 through June 10, 
 
         1984.  At the time of the arbitration hearing, October 22, 1986, 
 
         claimant had returned to work with defendant-employer.  At that 
 
         hearing, claimant related continuing problems including a limited 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         range of motion in his neck and right arm pain when extending his 
 
         arms overhead.  Byron W. Rovine, M.D., claimant's treating sur
 
         geon, examined claimant on May 19, 1986 and noted that claimant 
 
         had returned to work with unrestricted physical activity.  At 
 
         this time, claimant still complained of persistent interscapular 
 
         pain but had no weakness in the upper extremities.  Dr. Rovine 
 
         assigned to claimant a permanent impairment rating of eight per
 
         cent of the body as a whole but added that his level of disabil
 
         ity should not seriously affect his normal activities.  On April 
 
         29, 1986, claimant was examined by Richard A. Roski, M.D.  Dr. 
 
         Roski found no evidence of weakness or sensory loss in claimant's 
 
         upper extremities indicating neurological deficit.  He also found 
 
         no evidence of winging of the scapula.  Dr. Roski opined that 
 
         claimant had a good result from surgery.  On July 21, 1986, he 
 
         assigned to claimant a functional impairment rating of eight per
 
         cent of the body as a whole.
 
         
 
              At the hearing, claimant testified that Dr. Rovine erred 
 
         when he reported that claimant returned to work with unrestricted 
 
         physical activity.  He stated that when he returned to work in 
 
         1986, he worked with a 20 pound lifting limitation and with neck 
 
         and arm pain.  He stated that defendant-employer accommodated his 
 
         restrictions by giving him lighter work.  He testified that he 
 
         received no medical treatment until June of 1987 when his neck 
 
         and shoulder pain became more severe.  Claimant testified that he 
 
         was off work periodically from June 1987 through June 1988 
 
         because of worsening pain in his neck and shoulders.  Claimant 
 
         sought medical treatment from Dr. Rovine and James C. Donahue, 
 
         M.D., before seeking relief from R. Scott Cairns, M.D., orthope
 
         dic surgeon in Dubuque, Iowa.  Dr. Cairns referred claimant to 
 
         the Mayo Clinic in Rochester, Minnesota for evaluation.  Claimant 
 
         testified that he had no authorization from defendant to seek 
 
         treatment at Mayo Clinic but assumed that defendant would pay for 
 
         the evaluation conducted there.  He underwent various tests at 
 
         Mayo and John L. Merritt, M.D., the physician at Mayo who per
 
         formed the musculoskeletal evaluation, released claimant to 
 
         return to work on March 11, 1988, with a frequent lifting and 
 
         carrying weight limitation of 25 pounds and limited overhead work 
 
         activity.  Claimant testified he returned to work in March 1988 
 
         and worked there until the plant closed down.  In April 1990, he 
 
         obtained a job as a TV and appliance repairman in his hometown of 
 
         Maquoketa, Iowa.  He works 40 hours a week and earns $6.00 an 
 
         hour.  Claimant admitted that it was very difficult to find work 
 
         in Maquoketa in 1988 because almost half of the working popula
 
         tion in the town had worked for defendant-employer.
 
         
 
              The pertinent medical evidence reveals that the claimant was 
 
         referred by Dr. Donahue to Dr. Rovine for examination on July 1, 
 
         1987.  Claimant presented with complaints of recent onset of 
 
         aching and muscle tightness along the paravertebral regions in 
 
         his thoracic and upper lumbar areas.  On examination, reasonable 
 
         range of motion in the neck and lower back in all directions was 
 
         noted.  There was no evidence of any muscle spasm or particular 
 
         tenderness.  There was no evidence of muscular weakness and sen
 
         sory examination was normal throughout.  It was determined that 
 
         his pain was of muscular origin (Exhibit D-3-4).
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant presented to Dr. Donahue with complaints of inter
 
         mittent interscapular pain, especially on the left side.  He was 
 
         referred to Dr. Rovine who saw him on September 2, 1987.  On 
 
         examination, he did not find any tenderness or pain in the inter
 
         scapular area.  He performed a trigger point infiltration with 
 
         Depo-Medrol.  On September 11, 1987, claimant presented to Dr. 
 
         Rovine with recurrence of the pain.  Dr. Rovine stated that "[i]t 
 
         does not appear, on a clinical basis, that this problem is 
 
         related to his cervical spine or previous surgery."  (Ex. D-1)
 
         
 
              On September 21, 1987, claimant underwent x-rays of his left 
 
         shoulder and scapula.  They revealed no fractures, bony destruc
 
         tion, or other bone or joint pathology (Ex. F-1).  On October 6, 
 
         1987, Dr. Donahue released the claimant to return to work.  
 
         However, on October 7, 1987, claimant was examined for complaints 
 
         of pain in his back on the left side, mainly medial to the left 
 
         scapula.  Dr. Donahue opined that "[t]his does not appear to be 
 
         coming from cervical disc problem & has lasted too long for a 
 
         simple muscle strain."  He felt this may be an organic problem 
 
         that is not due to work (Ex. G-1).
 
         
 
              In October 1987, claimant underwent 12 physical therapy 
 
         treatments for bilateral shoulder pain (Ex. A-1).  On October 23, 
 
         1987, claimant was examined by Dr. Cairns for discomfort in the 
 
         "right parascapular region."  (Ex. J-1)  Dr. Cairns referred the 
 
         claimant to Mayo Clinic for further evaluation.  On February 10, 
 
         1988, he was seen by John L. Merritt, M.D.  Claimant related to 
 
         Dr. Merritt that on June 24, 1987, while performing his work 
 
         duties, he developed a throbbing pain in his right shoulder.  
 
         Subsequently, he developed soreness in his left shoulder.  On 
 
         examination, he had tenderness at the C4-5 level at the spinous 
 
         processes when palpitating his spine, lying prone with the head 
 
         relaxed.  Pressure over the area reduced some radicular pattern 
 
         into the left upper trapezius.  He had marked hypersensitivity of 
 
         the left upper trapezius trigger point and tenderness in the 
 
         attachment of the left rotator cuff tendon in addition to palpa
 
         ble crepitus with passive range of motion of that shoulder.  
 
         Tenderness was also evident at the intraspinous processes of L3-4 
 
         and the paraspinous muscles in the upper lumbar region on the 
 
         left side.  An MRI scan dated October 23, 1987 and a myelogram 
 
         dated November 17, 1987, were reviewed by the radiologist.  They 
 
         demonstrated spondylosis, degenerative disc disease and fusion, 
 
         but no evidence of current myelopathy or disc herniation.  Spine 
 
         x-rays dated October 23, 1987, revealed some degenerative changes 
 
         in the thoracic spine and an apparent stable fusion at the C5-6 
 
         level.  X-rays of the cervical spine dated February 10, 1988, 
 
         revealed degenerative changes above and below the C5-C6 fusion, 
 
         but the fusion itself appeared solid.  An electromyography per
 
         formed February 11, 1988, revealed no electrophysiological evi
 
         dence of cervical radiculopathy.  A neurologic examination 
 
         revealed diminished right biceps jerk but no evidence of active, 
 
         ongoing radiculopathy.  It was Dr. Merritt's opinion that 
 
         claimant's symptomatology was related to degenerative changes in 
 
         the cervical spine and rotator cuff.  It was his opinion that 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         this would not respond to surgical, medical or further therapeu
 
         tic interventions.  Dr. Merritt imposed work restrictions in the 
 
         medium category limiting lifting to 50 pounds maximum and fre
 
         quent lifting and carrying to 25 pounds, as well as limited over
 
         head work due to his neck and shoulders.  He stated that "[h]e 
 
         has reached maximum benefit from formal medical treatment.  He is 
 
         left with a permanent partial impairment of 10 percent of the 
 
         body as a whole for his neck condition, and 6 percent permanent 
 
         partial impairment of the upper extremity for his rotator cuff 
 
         degeneration which is 3 percent for the body as a whole.  He 
 
         would then have a permanent partial impairment of the body as a 
 
         whole of 13 percent."  (Ex. K-7)
 
         
 
              Claimant was released by Dr. Merritt to return to work on  
 
         March 11, 1988, with the above restrictions (Ex. K-1).
 
         
 
                                conclusions of law
 
         
 
              Pursuant to Iowa Code section 86.14(2), in a proceeding to 
 
         reopen an award for payments, inquiry is to be made into whether 
 
         or not the condition of the employee warrants an end to, dimin
 
         ishment of, or increase of compensation previously awarded.  A 
 
         change in condition must be shown to justify changing the origi
 
         nal award.  Henderson v. Iles, 250 Iowa 787; 96 N.W.2d 321 
 
         (1959).  It is not proper to merely redetermine the condition of 
 
         the employee as adjudicated by the former award.  Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940).
 
         
 
              A mere difference of opinion of experts or competent 
 
         observers as to the degree of disability arising from the origi
 
         nal injury is insufficient to justify a different determination 
 
         on a petition for review-reopening; there must be substantial 
 
         evidence of a worsening of the condition not contemplated at the 
 
         time of the first award.  Bousfield v. Sisters of Mercy, 249 Iowa 
 
         64, 86 N.W.2d 109 (1957).  Or, a change in condition may be found 
 
         where claimant has failed to improve to the extent initially 
 
         anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272     
 
         N.W.2d 24 (Iowa App. 1978).  Additionally, in cases not involving 
 
         scheduled members, a change in earning capacity subsequent to the 
 
         original award which is proximately caused by the original injury 
 
         may constitute a change in condition.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              The required change of condition to satisfy the requirements 
 
         of review-reopening need not rest solely upon a change of physi
 
         cal condition if economic hardships causally related to a com
 
         pensable injury but not contemplated within the initial award or 
 
         agreement are demonstrated.  An increase in industrial disability 
 
         may occur without a change in physical condition.  A change in 
 
         earning capacity (subsequent to the original award) which is 
 
         proximately caused by the original injury also constitutes a 
 
         change in condition.  Black, 290 N.W.2d 348 (Iowa 1980); 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  The 
 
         question thus secondarily becomes whether or not claimant's 
 
         industrial disability has changed.
 
         
 
              Functional impairment is an element to be considered in 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity to engage in employment for which he is fitted.  Olson v. 
 
         Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's qualifi
 
         cations intellectually, emotionally and physically; earnings 
 
         prior and subsequent to the injury; age; education; motivation; 
 
         functional impairment as a result of the injury; and inability 
 
         because of the injury to engage in employment for which the 
 
         employee is fitted.  Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in arriv
 
         ing at the determination of the degree of industrial disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, moti
 
         vation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985);  Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, l985).
 
         
 
              The evidence in this case establishes that claimant has 
 
         experienced a change in condition since the earlier award.  At 
 
         the time of the arbitration hearing on October 22, 1986, claimant 
 
         had returned to lighter work with defendant handling parts weigh
 
         ing up to 15 pounds.  Before he was injured on March 1, 1984, he 
 
         was handling parts weighing up to 25 pounds.  A residual func
 
         tional capacity evaluation performed on May 27, 1986, indicated 
 
         that claimant had the capacity to continuously lift up to 10 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         pounds and frequently lift up to 25 pounds (Ex. C-5).  Both Dr. 
 
         Rovine and Dr. Roski gave the claimant the same functional 
 
         impairment rating of eight percent to the body as a whole.  Based 
 
         on these facts, the deputy industrial commissioner found, on 
 
         January 30, 1987, claimant's industrial disability to be 10 per
 
         cent of the body as whole.  When reevaluated at the Mayo Clinic 
 
         on February 10, 1988, he was given a lifting limit to 50 pounds 
 
         maximal and frequent lifting and carrying to 25 pounds, as well 
 
         as a limitation in overhead work due to neck and bilateral shoul
 
         der pain (Ex. K-7).  
 
         
 
              Claimant's physical condition continued to deteriorate as a 
 
         result of his original injury on March 1, 1984.  The worsening of 
 
         his condition is evidenced by medical reports from the Mayo 
 
         Clinic dated February 10, 1988.  Dr. Merritt opined that 
 
         claimant's symptomatology is related to degenerative changes in 
 
         the cervical spine and rotator cuff.  He gave claimant work 
 
         restrictions falling in the medium category with lifting limita
 
         tions of 50 pounds maximum and frequent lifting and carrying to 
 
         25 pounds, as well as limited overhead work due to neck and 
 
         shoulder problems.  He stated that claimant is left with a perma
 
         nent partial impairment of 10 percent of the body as a whole for 
 
         his neck condition and six percent permanent partial impairment 
 
         of the upper extremity for his rotator cuff degeneration which is 
 
         three percent for the body as a whole  (Ex. K, p. 7).
 
         
 
              In addition to a change in physical condition, claimant has 
 
         sustained additional permanent disability due to economic hard
 
         ships casually related to his compensable injury but not contem
 
         plated at the time of the arbitration hearing.  A change in earn
 
         ing capacity subsequent to the original award which is approxi
 
         mately caused by the original injury also constitutes a change in 
 
         condition.  Blacksmith, 290 N.W.2d 348 (Iowa 1980); McSpadden, 
 
         288 N.W.2d 181 (Iowa 1980).  Mejorado v. Caterpillar Tractor 
 
         Company, File No. 438551 (Appeal Decision March 4, 1991).
 
         
 
              Claimant returned to work at the Caterpillar plant on March 
 
         ll, 1988.  Despite the fact that claimant's former job was avail
 
         able, he was not returned to his former position.  Instead, he 
 
         assisted with cleaning and preparing machines to be moved out of 
 
         the plant.  He worked until June 6, 1988, when he was laid off 
 
         indefinitely due to the closing of the Davenport Caterpillar 
 
         plant.  At the time of the closing, claimant was 48 years old and 
 
         had worked for defendant since 1974.  He had a high school 
 
         diploma and had lived in the Quad City for most of his adult 
 
         life.  The only option offered to him, upon the closing of the 
 
         plant, was to sign up for the Master Recall list.  Claimant tes
 
         tified that he was told by Labor Relations that it was a fruit
 
         less endeavor.  The Master Recall list was simply a list of peo
 
         ple who would be considered for an opening within the company and 
 
         claimant's name would be among hundreds of other laid off employ
 
         ees, many younger, with more experience and better qualifica
 
         tions.  Claimant sought employment at the Caterpillar plant in 
 
         Corinth, Mississippi and Decatur, Illinois without success.  He 
 
         worked for a two month period as a automobile mechanic but was 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         forced to quit due to his impairment.  In April 1990, claimant 
 
         secured employment in Maquoketa, Iowa at an appliance facility.  
 
         He earns $6.00 an hour and works 40 hours per week.  At the time 
 
         of his injury in 1984, he was earning $15.00 an hour when he was 
 
         laid off from Caterpillar.
 
         
 
              Since this is a review-reopening from a prior adjudication 
 
         of benefits, then the burden of proof is upon claimant to show a 
 
         change of condition by a preponderance of the evidence.  
 
         Caterpillar Tractor Co. v. Mejorado, 410 N.W.2d 675 (Iowa 1987); 
 
         Stice, 228 Iowa 1031, 291 N.W. 452 (1940).  The employee must 
 
         show "additional consequences, facts and circumstances" 
 
         proximately caused by the original injury that occurred 
 
         subsequent to the award being reviewed.  Henderson, 250 Iowa 787, 
 
         96 N.W.2d 321 (1959); Deaver v. Armstrong Rubber Co., 170 N.W.2d 
 
         455 (Iowa 1969).  A nonphysical change in condition will permit 
 
         an additional award where there is a change in earning capacity 
 
         without a change in physical condition subsequent to the original 
 
         award.  Blacksmith, 290 N.W.2d 348 (Iowa 1980); McSpadden, 288 
 
         N.W.2d 181 (Iowa 1980); Lawyer and Higgs, Workers' 
 
         Compensation--Law & Practice, section 20-6, page 160.
 
         
 
              Claimant has sustained the burden of proof by a preponder
 
         ance of the evidence that he has sustained an economic change of 
 
         condition caused by the original injury.  With respect to the 
 
         master recall list, claimant was not obligated to sign up for 
 
         possible recall to one of the other nine plants in other loca
 
         tions of the country.  Claimant was not required to leave the 
 
         community in which he had lived for most of his adult life and 
 
         owned his own home.  His employment prospects under any condition 
 
         are significantly diminished.  Mejorado v. Caterpillar Tractor, 
 
         File No. 438551, (Review-Reopening Decision filed April 30, 1990) 
 
         Affirmed on Appeal to Industrial Commissioner March 4, 1991.
 
         
 
              Furthermore, defendant did not demonstrate that if claimant 
 
         had signed the master recall list that he would have been 
 
         recalled or that if he had been recalled he would have been 
 
         recalled for suitable employment.  Even though 236 persons had 
 
         been recalled there was no evidence as to how many people were on 
 
         the list, what work they were recalled to, where it was located, 
 
         or whether it was suitable employment, better employment or worse 
 
         employment.  Whether claimant could have or would have obtained 
 
         suitable recall employment is purely speculative based upon the 
 
         evidence in this record.
 
         
 
              It is determined that the plant closing is a nonphysical 
 
         change of condition which caused additional loss of earnings 
 
         capacity over and above the factors used by Deputy Ort at the 
 
         time of the arbitration hearing on October 22, 1986.  It is 
 
         acknowledged that the plant closing may have caused an economic 
 
         downturn that effected the entire quad cities community.  Webb v. 
 
         Lovejoy Construction Co., II Iowa Industrial Commissioner Report 
 
         430 (Appeal Decision 1981).  Nevertheless, claimant's earning 
 
         capacity was further reduced and diminished over and above that 
 
         of the other members of the community for the reason that 
 
         claimant sustained a neck injury which required surgery.
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant has demonstrated a change in earning capacity sub
 
         sequent to the original award.  The closing of the Caterpillar 
 
         plant was not contemplated at the time of the first award.  
 
         Claimant has incurred a loss of earning capacity.  His primary 
 
         work activity has been as a mechanic.  His impairment restricts 
 
         him to light work activity with no overhead lifting.  The only 
 
         available job in his geographic area was as a $6.00 an hour small 
 
         appliance repairman.  This represents a severe diminution in both 
 
         present earnings and the potential for future earnings.  The 
 
         plant closing forced claimant into the competitive job market.  
 
         While at Caterpillar, the company accommodated the claimant's 
 
         limitations and found work he could perform within his restric
 
         tions.  Therefore, he has been sheltered by employer from the 
 
         competitive labor market.  The plant closing forced claimant into 
 
         the competitive job market.
 
         
 
              Claimant's injury, considered in conjunction with his age, 
 
         education, specialized work experience and minimal qualifications 
 
         for work activity outside of the mechanical area, entitles him to 
 
         additional benefits based upon his increased industrial disabil
 
         ity.  Claimant has sustained an industrial disability equal to 
 
         ten (10) percent of the body as a whole and is entitled to an 
 
         additional ten (10) percent permanent partial disability benefits 
 
         at the stipulated rate of three hundred twenty-four and 18/l00 
 
         dollars ($324.18).  Such benefits shall commence at the time this 
 
         decision is signed and filed.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant fifty (50) weeks of permanent 
 
         partial disability benefits at the stipulated rate of three 
 
         hundred twenty-four and 18/l00 dollars ($324.18) commencing on 
 
         the date of this decision.
 
         
 
              That the costs of this action shall be paid by defendant 
 
         pursuant to rule 343 IAC 4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of March, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E 6th St
 
         P O Box 339
 
         Davenport  IA  52805
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         Suite 102
 
         Executive Square
 
         400 Main St
 
         Davenport  IA  52801
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2905
 
                           Filed March 15, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            YOUNG GEORGE HOUSTON,         :
 
                                          :         File No. 763157
 
                 Claimant,                :
 
                                          :          R E V I E W -
 
            vs.                           :
 
                                          :        R E O P E N I N G
 
            CATERPILLAR TRACTOR CO.,      :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            2905
 
            In a review-reopening proceeding, claimant alleges a change 
 
            in physical and economic condition.  At time of arbitration 
 
            hearing, October 22, 1986, claimant was status-post C5-C6 
 
            discectomy and interbody fusion and had returned to lighter 
 
            work activity.  An arbitration decision filed January 30, 
 
            1987, gave claimant 10% permanent partial disability 
 
            benefits.
 
            Subsequently, claimant developed bilateral shoulder problems 
 
            which Mayo Clinic related to degenerative changes in his 
 
            cervical spine and rotator cuff.  A 13% permanent partial 
 
            impairment to body as a whole was assigned.  Claimant 
 
            returned to limited duties at Caterpillar until the plant 
 
            closed.
 
            Claimant found to incur an additional 10% permanent partial 
 
            disability due to a change in physical and economic 
 
            conditions.  (See:  Mejorado v. Caterpillar Tractor, File 
 
            No. 438551 (Review-Reopening Decision filed on April 30, 
 
            1990) and affirmed on appeal to industrial commissioner on 
 
            March 4, 1991.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES LUMLEY,
 
                                                   FILE NO. 763158
 
              Claimant,
 
                                                    A P P E A L
 
         VS.
 
                                                  D E C I S I 0 N
 
         CITY OF DES MOINES, IOWA,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appealed from an arbitration decision awarding 
 
         healing period benefits beginning on April 16, 1984 and 
 
         continuing in the future until the conditions of Iowa Code 
 
         section 85.34(l) are satisfied.  The arbitration decision also 
 
         ordered defendant to provide and pay for reasonable medical 
 
         treatment of claimant's obesity to the extent necessary to allow 
 
         for the knee surgery contemplated by claimant's treating 
 
         physician.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 6.  Both parties 
 
         have filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal can be stated as whether claimant is 
 
         entitled to a running award of healing period benefits and 
 
         whether defendant must provide reasonable and necessary medical 
 
         treatment to allow for the knee surgery contemplated by 
 
         claimant's treating physician.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              On April 16, 1984, claimant sustained an injury to his right 
 
         knee when a stack of chairs tell and hit his right knee.  
 
         Claimant reported this injury to his foreman and went to see a 
 
         doctor.  Claimant stated that at the time of the injury he 
 
         weighed about 225 pounds.
 
         
 
              Claimant was referred to Kent M. Patrick, M.D., on May 9, 
 
         1984.  In a letter on that date Dr. Patrick opines:
 
         
 
                 Physical exam reveals an overweight gentlemen [sic] 
 
              in no acute distress.  He has an antalgic gait on the  
 
              right.  Examination of the right knee reveals a Grade 2 
 
              effusion.  Range of motion is from 0 to 110 degrees.  
 
              The leg is relatively straight with some tendency 
 
              towards varus.  He has pain along the medial joint line 
 
                                                
 
                                                         
 
                   and pain with McMurray's testing.  Ligamentous 
 
              stability reveals some mild medial laxity.
 
         
 
                 Three views of the knee, including a standing AP and 
 
              patellar views, reveal what appears to be significant 
 
              medial compartment disease.  He has no osteophytes to 
 
              speak of but the joint space itself seems to be almost 
 
              gone.  He has some sclerosis on the tibial side of the 
 
              joint implying a more long standing process.  On the 
 
              patellar view it appears he has some degeneration of 
 
              the facet between the lateral femoral condyle and the 
 
              patella.
 
         
 
                 The situation was discussed in detail with the 
 
              patient.  His symptoms may be on a degenerative joint 
 
              basis which have been made more symptomatic by the type 
 
              of work he does.  On the other hand this may represent 
 
              an isolated meniscal which is giving him his acute pain 
 
              on top of an underlying degenerative joint, I think for 
 
              now we need to get him settled down with some Indocin 
 
              Sustained Release capsules.  I would like to see him 
 
              back in approximately ten days for follow-up.  If he 
 
              continues to have significant problems, we may need to 
 
              consider an arthroscopic exam.
 
         
 
                 I spoke with him about the possibility of an upper 
 
              tibial osteotomy at some point down the road.  I am 
 
              hopeful that we can get things comfortable for him on 
 
              the Indocin Sustained Release and allow him to make 
 
              some decision in the future as to whether his knee 
 
              bothers him enough to require an osteotomy.
 
         
 
                 Diagnosis:  Medial compartment gonarthrosis, right 
 
              knee, with possible acute tear, right medial meniscus.
 
         
 
         (Joint Exhibit 1, pages 19-20)
 
         
 
              Dr. Patrick released claimant for return to work on May 29, 
 
         1984.  Claimant returned to work on that date but he experienced 
 
         pain and subsequently returned to Dr. Patrick:
 
         
 
                 5-30-84:  Mr. Lumley returns today for follow-up of 
 
              his right knee.  He returned to work yesterday but 
 
              while pushing some desks he had a giving way episode 
 
              with a rather loud klunk.  His knee has been sore since 
 
              that time and indeed he has a Grade 2 effusion today.  
 
              He is tender along the medial joint line as well.
 
         
 
                 With a problem so quickly after returning to work I 
 
              suspect that Mr. Lumley does have some significant 
 
              medial compartment disease, either in the form of 
 
              degenerative changes with or without a meniscal tear.  
 
              I think at this time he should have an arthroscopic 
 
              evaluation and treatment as indicated through the 
 
              scope.  At some later date he might require the upper 
 
                                                
 
                                                         
 
                   tibial osteotomy that we discussed on his initial visit 
 
              but for now the arthroscopic surgery should be able to 
 
              get him through.  He would like to proceed with this as 
 
              soon as possible so that he might get better and return 
 
              to his normal lifestyle, including work.  His general 
 
              health is good.  His only medication is the Indocin 
 
              which I have given him and Codeine apparently bothers 
 
              him, although I don't know that it is a specific 
 
              allergy.  Past surgeries include a gastric stapling, 
 
              gall bladder surgery and hemorrhoid surgery.  He 
 
              apparently has not been in the hospital for any medical 
 
              problems.  He has had an upper respiratory infection 
 
              recently but has had no fever with it.  His exam in the 
 
              office today is normal with the exception of some fluid 
 
              behind the left ear drum.  There is no erythema to go 
 
              with it.  He is scheduled for surgery on Tuesday the 
 
              5th of June.  Time off work should be in the 
 
              neighborhood of 2-4 weeks, depending on what is found 
 
              at the time of surgery.
 
         
 
         (Jt. Ex. 1, p. 21)
 
         
 
              Dr. Patrick performed the arthroscopic surgery on June 5, 
 
         1984.  After this surgery claimant continued to experience 
 
         problems as Dr. Patrick's subsequent letters note.  In an August 
 
         24, 1984 letter, Dr. Patrick states:
 
         
 
                 Mr. Lumley returns today and continues to have 
 
              significant trouble.  He is using a cane to get around, 
 
              as well as taking medicine.  He continues to show a 
 
              significant effusion, and I am afraid we are fighting a 
 
              losing battle.
 
         
 
                 I did get a standing AP and lateral of his knee 
 
              today.  This shows him to be in slight varus alignment 
 
              with significant narrowing of the medial joint space.  
 
              I think that an osteotomy to shift him over into valgus 
 
              is going to be necessary if we are going to improve 
 
              this man's status.  This would, of course, carry with 
 
              it several months of rehabilitation, but ultimately I 
 
              would hope that he could return to his job at the 
 
              Botanical Center.  He would like to think about this 
 
              before proceeding with another surgical procedure.  He 
 
              is to notify me in the next week if and when he would 
 
              like to proceed.  If not, then some type of situation 
 
              will need to be worked out for an impairment rating, 
 
              although I think that this would be unfair.  The only 
 
              right thing is to improve the status of his leg.
 
         (Jt. Ex. 1, p. 11)
 
              Dr. Patrick's subsequent letters indicate that claimant's 
 
         osteotomy surgery was postponed several times due to upper 
 
         respiratory infections and diarrhea.  See joint exhibit 1, pages 
 
         7-10.  Claimant testified that the osteotomy was eventually 
 
         scheduled for late November or early December, 1984, but claimant 
 
         stated that there was a mix-up at the hospital when he arrived:
 
                                                
 
                                                         
 
         
 
              Q.  Why don't you tell us if that surgery took place.
 
         
 
              A.  No, it didn't.
 
         
 
              Q.  Why not?
 
         
 
              A.  Well, there was a mix-up in the hospital and his 
 
              office.
 
         
 
              Q.  As to what?
 
         
 
              A.  Well, we were -- I was told to be there at eight o'clock 
 
              by his nurse.  I had a card, and I don't know what I did 
 
              with it, but I had it on the card.
 
         
 
                 And so we were getting ready to go, and the hospital 
 
              called and said, "Well, you were supposed to be here at six 
 
              o'clock," and I said, "No.  I got it right here.  It says, 
 
              Oeight.OO  She says, "Well, you better call you doctor's 
 
              office."
 
         
 
                 So I did, and the nurse reassured me.  She said, "No, 
 
              it's at eight o'clock," and so then we get a call to just 
 
              postpone it, you know, "Just don't come in."
 
                   
 
                                                
 
                                                         
 
         
 
              Q.  Did the surgery get rescheduled after that?
 
         
 
              A.  No.  Doctor Patrick told me to go to the City doctor -- 
 
              back to the City doctor.
 
         
 
              Q.  This was in December of O84?
 
         
 
              A.  Yeah.
 
         
 
              Q.  Did you do that?  Did you go back to the doctor?
 
         
 
              A.  Yes, I did.
 
         
 
              Q.  What did the City doctor do for you?
 
         
 
              A.  Well, me and Mike -- That's when you were there; right?  
 
              He --
 
              Q.  Just you.
 
         
 
              A.  He told me that I couldn't have the surgery.  I weighed 
 
              too much.
 
         (Transcript pp. 17-18)
 
              Claimant opined that at that time he weighed approximately 
 
         350 pounds.
 
         
 
              Michael Peterson, safety and training administrator for 
 
         defendant, testified concerning the osteotomy surgery scheduled 
 
         in November or December 1984:
 
         
 
              Q.  During your discussions with the City doctor, in his 
 
              discussions with Doctor Patrick, why was the surgery 
 
              scheduled that third time if everybody was so concerned 
 
              about his weight?
 
         
 
              A.  I think Jim's case -- I can't speak for the doctors.  I 
 
              can make, I guess, an assumption here.  Maybe that's not 
 
              appropriate to do.
 
         
 
                 I believe there was some concerns all along about his 
 
              weight, but there was also a weighing of what the potential 
 
              was for benefit versus not doing it.  I think it -- at one 
 
              point it was considered to be the risk was better to go with 
 
              the surgery even though the weight was there.
 
         
 
                 However, at one point the weight had just exceeded -- 
 
              gotten to such a level that, I think, Doctor Patrick then -- 
 
              I believe Doctor Patrick took the initiative on this -- 
 
              suggested that it was not appropriate.  The risk was [sic] 
 
              now swung too far, and there really would not be that much 
 
              benefit.
 
         
 
              Q.  Did Doctor Patrick tell you that the weight needed to be 
 
              taken care of before the surgery could be done?
 
         
 
                                                
 
                                                         
 
              A.  I have never discussed Jim's case personally with Doctor 
 
              Patrick.
 
         
 
              Q.  Okay.  Did Doctor Schultheis tell you?
 
         
 
              A.  Yes.
 
         
 
              Q.  Did Doctor Schultheis tell you that the surgery on his 
 
              knee needs to be done?
 
         
 
              A.  Yes.  He agreed that the surgery would eventually help 
 
              him if he could get the weight loss down.
 
         
 
         (Tr., pp. 59-62)
 
         
 
              Claimant was then sent to Dr. Patrick for an impairment 
 
         rating:
 
         
 
                 Mr. Lumley returns today for an impairment rating.  
 
              The City has requested this of me.  We discussed the 
 
              possible upper tibial osteotomy again, and I feel that 
 
              it will improve his situation, but I am unsure as to 
 
              whether we will let him return to his old job.  In 
 
              order to maximize the potential benefit of this 
 
              procedure, Mr. Lumley needs to work diligently on 
 
              weight loss.  He needs to lose somewhere between 50 and 
 
              100 pounds.  This whole thing with work has gotten him 
 
              quite upset.  He requested some Librium to help him 
 
              relax, and I complied with this.  I told him that this 
 
              is not something we can do on an ongoing basis, but I 
 
              could help him some during this particularly stressful 
 
              time.
 
         
 
                 On exam he continues to show a significant effusion 
 
              in the knee.  He is tender along the medial aspect of 
 
              the knee and has a restricted range of motion from -15 
 
              to 90 degrees.  This gives him an active motion of 75 
 
              degrees.  With this in mind and has continued 
 
              discomfort, I feel he warrants a permanent partial 
 
              impairment rating of 25% of the right lower extremity.  
 
              Presumably with a good surgical result this would be 
 
              less.  Certainly his pain should be better, but as 
 
              mentioned above, I don't know if he is going to be able 
 
              to return to heavy work on that knee.  His chances for 
 
              a good result will be maximized by the weight loss.  I 
 
              would hope this is something Mr. Lumley can do but he 
 
              has already failed at wight [sic] loss over the past 
 
              years, including a surgical procedure for weight loss.  
 
              So tar he is tolerating his Nalfon.  Ultimately this 
 
              may give him enough discomfort that he can get along.  
 
              I need not see Mr. Lumley back unless he or the City 
 
              decides that we should indeed go ahead with the 
 
              osteotomy. (Emphasis added)
 
         
 
         (Jt. Ex. 1, p. 6)
 
                                                
 
                                                         
 
         
 
              Claimant was sent to Scott B. Neff, D.O., for evaluation on 
 
         January 7, 1985:  In his evaluation report Dr. Neff opines:
 
         
 
                 Physical examination shows the right knee to have a 
 
              0-90 degree range of motion, +1 effusion.  The left 
 
              knee has a 0-100 degree range of motion.  There is no 
 
              crepitus.
 
         
 
                 In my opinion, this patient has a 20% disability 
 
              with reference to his right knee.  Based on the fact 
 
              that he has had an arthroscopic medial meniscectomy, I 
 
              would feel that his disability is 15% due to 
 
              degenerative changes, and 5% due to the alleged 
 
              meniscus injury.  It is doubtful in my mind, based on 
 
              the patient's history, as given by himself and his 
 
              wife, that the blow, supposedly, from a table, caused 
 
              the meniscus injury itself.  I would feel relatively 
 
              comfortably saying that the patient had significant 
 
              meniscus disease, simply based on him walking around at 
 
              this size, squatting, twisting, carrying meat, and 
 
              doing the activities of normal living, before he was 
 
              hit by this table which slipped off the cart.
 
         
 
                 As originally described by Coventry, the upper 
 
              tibial osteotomy is a very successful operation.  
 
              Coventry's original criteria were that there were no 
 
              arthritic changes in the lateral compartment, and the 
 
              lateral meniscus be normal, and the patient have no 
 
              ligamentous instability, and be of normal weight.
 
         
 
                 I think upper tibial osteotomy in this patient is 
 
              destines to fail, based on the patient's size, and the 
 
              development of his lateral compartment arthritic 
 
              disease.
 
         
 
         (Jt. Ex. 1, p. 27)
 
         
 
              Defendant sent a letter to claimant dated December 19, 1984, 
 
         which states that defendant has retained Liz Barstad, vocational 
 
         rehabilitation counselor, to assist claimant with his 
 
         rehabilitation.  See joint exhibit 4.  Barstad closed claimantOs 
 
         case on March 15, 1985, stating:  "As per request of the account 
 
         the case is closed due to lack of client's interest in pursuing a 
 
         weight loss program.O (Jt. Ex. 2, p. 1)
 
         
 
              Claimant testified that he spoke with Barstad on about ten 
 
         occasions.  Claimant stated that Barstad attempted to get him 
 
         into some weight loss programs and attempted to get him go to 
 
         Vocational Rehabilitation.  Claimant testified that he would like 
 
         to lose weight, but his wife must drive him to his appointments 
 
         because he has difficulty driving due to his weight.  Claimant 
 
         related that he has difficulty fitting behind the steering wheel 
 
         and working the clutch and brake in his car.  Claimant stated 
 
         that the programs that Barstad suggested were too expensive for 
 
                                                
 
                                                         
 
         him.  Claimant indicated that he did go to Vocational 
 
         Rehabilitation for an intake interview as Barstad requested.
 
         
 
              Claimant testified that he received two letters from 
 
         defendant suggesting weight loss programs claimant could go to at 
 
         defendant's expense but that he did not go to these programs 
 
         because he lacked transportation.  Claimant stated that he would 
 
         participate in a weight loss program if he had transportation and 
 
         that if he loses weight he would have the recommended knee 
 
         surgery.
 
         
 
              Claimant revealed that he has had weight problems in the 
 
         past and that at one point he underwent a gastro bypass procedure 
 
         ("stomach stapling") to lose weight.  Claimant stated that at the 
 
         time the procedure was performed he weighed 270 pounds.  Claimant 
 
         related that after he had healed from the gastro bypass surgery 
 
         he went to work for defendant and that he weighed about 220 
 
         pounds.  Claimant opined that he was able to keep his weight down 
 
         as long as he was working.  See (Tr., pp. 24-25)  On 
 
         cross-examination claimant testified that he first noticed that 
 
         he was gaining weight when he was sitting at home and could not 
 
         walk.  See (Tr., p. 34).
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the arbitration decision 
 
         are appropriate to the issues and evidence.
 
         
 
              In Shilling v. Martin K. Eby Construction Co., Inc., II 
 
         Industrial Commissioner Report 350  (Appeal Decision 1981), (no 
 
         appeal taken), the industrial commissioner awarded temporary 
 
         total disability benefits during the period claimant was 
 
         receiving weight loss treatment necessary for proposed surgery on 
 
 
 
                    
 
                                                         
 
         claimant's back and the industrial commissioner ordered 
 
         defendants to provide and to pay the reasonable expenses related 
 
         to claimant's weight reduction including any necessary surgical 
 
         and hospital expenses.  Id. at 355.  In Moore v. Des Moines Metro 
 
         Transit Authority, IV-Industrial Commissioner Report 250 (Appeal 
 
         Decision 1983), (District Court reversed and awarded running 
 
         award of healing period benefits, Supreme Court remanded for full 
 
         commutation), the deputy industrial commissioner writing the 
 
         final agency decision awarded healing period benefits for the 
 
         reasonable period necessary for claimant to lose weight so he 
 
         could undergo back surgery.
 
         
 
              In Adams v. Waterloo Community School District, Thirty-third 
 
         Biennial Report of the Industrial Commissioner 80, 83 (Appeal 
 
         Decision 1977).  The industrial commissioner ordered defendants 
 
         to pay the costs of "Weight Watchers" as it had been ordered by 
 
         claimant's physician.
 
         
 
              Iowa Code section 85.27 (1984) states:
 
         
 
              The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.  The employer shall also 
 
              furnish reasonable and necessary crutches, artificial 
 
              members and appliances but shall not be required to 
 
              furnish more than one set of permanent prosthetic 
 
              devices.
 
         
 
                 ....
 
         
 
                 For purposes of this section, the employer is 
 
              obliged to furnish reasonable services and supplies to 
 
              treat an injured employee, and has the right to choose 
 
              the care.  The treatment must be offered promptly and 
 
              be reasonably suited to treat the injury without undue 
 
              inconvenience to the employee.  If the employee has 
 
              reason to be dissatisfied with the care offered, he 
 
              should communicate the basis of such dissatisfaction to 
 
              the employer, in writing if requested, following which 
 
              the employer and the employee may agree to alternate 
 
              care reasonably suited to treat the injury.  If the 
 
              employer and employee cannot agree on such alternate 
 
              care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and 
 
              order other care.  In an emergency, the employee may 
 
              choose his care at the employer's expense, provided the 
 
              employer or his agent cannot be reached immediately. 
 
              (Emphasis added)
 
         
 
                                    ANALYSIS
 
         
 
                                                
 
                                                         
 
              The greater weight of evidence establishes that claimant's 
 
         right knee injury of April 16, 1984, has resulted in permanent 
 
         impairment to claimant's right lower extremity.  Both Dr. Patrick 
 
         and Dr. Neff agree that claimant suffers some permanent 
 
         impairment.
 
         
 
              The extent of this permanent impairment is undetermined at 
 
         this time.  Dr. Neff opines that claimant suffers a,20 percent 
 
         permanent partial impairment to the right lower extremity.  Dr. 
 
         Patrick opines that it is 25 percent, but he also opines that 
 
         with an osteotomy this rating would be less.  Dr. Neff opines 
 
         that the surgery "... is destined to fail based on the patient's 
 
         size, and development of his lateral compartment arthritic 
 
         disease."
 
         
 
              Dr. Patrick's opinions as to the extent of claimant's 
 
         impairment and need for surgery are adopted over those of Dr. 
 
         Neff.  Dr. Patrick has had numerous contacts with claimant over a 
 
         longer period of time.
 
         
 
              All of the physicians involved in this case agree that 
 
         claimant must lose weight before any surgery should be attempted 
 
         on claimant's knee.  Defendant has made some attempts to assist 
 
         claimant to lose weight but these attempts have failed because 
 
         claimant lacks necessary transportation and money to attend 
 
         weight loss programs.  Iowa Code section 85.27 requires the 
 
         employer to pay for reasonable medical and transportation 
 
         expenses necessary to treat the injury.  Therefore, defendant 
 
         shall furnish all reasonable medical treatments necessary to help 
 
         claimant lose weight and defendant shall pay for claimant's 
 
         reasonable transportation expenses necessary in claimant's weight 
 
         loss treatment.
 
         
 
              The deputy awarded claimant healing period benefits until 
 
         the conditions of Iowa Code section 85.34(l) are satisfied.  
 
         Running awards for healing period have been made by this agency 
 
         to facilitate weight loss necessary to achieve maximum medical 
 
         improvement.  See Shilling v. Martin Eby Construction Co., 
 
         Inc.,II Industrial Commissioner Report 350 (Appeal Decision 
 
         1981).  See also Moore v. Des Moines Metro Transit Authority, IV 
 
         Industrial Commissioner Report 250 (Appeal Decision 1983).  The 
 
         greater weight of evidence supports the deputy's running award of 
 
         healing period benefits.
 
         
 
              Claimant's motivation will likely play an important part in 
 
         his recovery.  Claimant must make a serious effort to achieve the 
 
         weight loss necessary for his recovery.  His failure to do so may 
 
         stop the running of the award because at that time no further 
 
         recovery will be anticipated.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury to his right knee on April 
 
         16, 1984 while he was stacking chairs for defendant.
 
         
 
                                                
 
                                                         
 
              2.  At the time of the injury claimant weighed 225 pounds.
 
         
 
              3.  Claimant's right knee injury has been diagnosed as 
 
         medial compartment gonarthrosis with possible acute tear, right 
 
         medial meniscus.
 
         
 
              4.  Claimant needs surgery to correct his knee injury.
 
         
 
              5. Claimant continues to experience knee pain which hampers 
 
         claimant's ability to walk.
 
         
 
              6.  Claimant has been unable to perform acts of gainful 
 
         employment due to knee pain since the April 16, 1984 injury.
 
         
 
              7.  As a result of claimant's inability to walk or work, 
 
         claimant has gained in excess of 175 pounds.
 
         
 
              8.  Claimant must reduce his weight to alleviate his knee 
 
         pain and to undergo surgery on his knee.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant sustained an injury to his right knee arising out 
 
         of and in the course of his employment on April 16, 1984.
 
         
 
         
 
              Claimant has established that his obesity is causally 
 
         related to his April 16, 1984 right knee injury.
 
         
 
              Claimant is entitled to reasonable and necessary medical 
 
         treatment for his obesity.
 
         
 
              Claimant is entitled to healing period benefits from April 
 
         16, 1984 and continuing until the conditions of Iowa Code section 
 
         85.34(l) are satisfied.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay to claimant healing period benefits 
 
         at the rate of two hundred eight and 30/100 dollars ($208.30) per 
 
         week commencing April 16, 1984 and continuing until the 
 
         conditions of Iowa Code section 85.34(l) are satisfied.
 
         
 
              That defendant shall pay accrues amounts in lump sum 
 
         together with interest pursuant to Iowa Code section 85.30.
 
         
 
              That defendant shall receive credit for amounts already 
 
         paid.
 
         
 
              That defendants shall provide and pay for reasonable medical 
 
         and transportation expenses necessary for claimant's weight 
 
                                                
 
                                                         
 
         reduction.
 
         
 
              That defendant shall pay all costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall tile claim activity reports as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
              Signed and filed this 20th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., Suite 500
 
         Des Moines, Iowa 50265
 
         
 
         Ms. Anne L. Clark
 
         Assistant City Attorney
 
         City Hall
 
         Des Moines, Iowa 50307
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40; 1802
 
                                                  1403.10; 2501
 
                                                  Filed May 20, 1988
 
                                                  David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES  LUMLEY,
 
                                                    FILE NO. 763158
 
              Claimant,
 
                                                      A P P E A L
 
         
 
         VS.
 
                                                    D E C I S I 0 N
 
         CITY OF DES MOINES, IOWA,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1402.40; 1802
 
         
 
              Claimant established that his obesity was causally related 
 
         to his work knee injury.  The record revealed that his knee pain 
 
         hampers his ability to walk and that as a result of this 
 
         inability to walk or work claimant gained in excess of 175 
 
         pounds.  Claimant given a running award of healing period 
 
         benefits so that claimant may lose weight to facilitate surgery 
 
         which would alleviate his knee pain.
 
         
 
         1403.10; 2501
 
         
 
              Defendants must provide and pay for reasonable medical and 
 
         transportation expenses necessary for claimant's weight 
 
         reduction.
 
 
 
         
 
         
 
 
            
 
            
 
            
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            JAMES LUMLEY,    
 
                        
 
                 Claimant,                         File No. 763158
 
                        
 
            vs.                                       R E M A N D
 
                        
 
            CITY OF DES MOINES, IOWA,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            This matter is on remand from the district court for Polk 
 
            County.  The district court reversed an agency decision and 
 
            determined that the defendant employer was not required to 
 
            pay for reasonable and necessary medical treatment for 
 
            claimant's obesity.  The district court ordered this case 
 
            remanded to this agency to determine whether medical and 
 
            healing period benefits should be awarded on any other 
 
            grounds.
 
            
 
                                    ISSUES
 
            
 
            The issues on remand are the nature and extent of claimant's 
 
            alleged disability, if any, and claimant's entitlement to 
 
            medical benefits, if any.
 
            
 
                                FINDINGS OF FACT
 
            
 
            The review of evidence in the appeal decision filed May 20, 
 
            1988 in this matter is incorporated by reference in full 
 
            into these findings of fact.  The following additional 
 
            findings are also made.
 
            
 
            On February 26, 1985, after several postponements, claimant 
 
            had an intake interview with vocational rehabilitation 
 
            counselor.  On March 15, 1985 Liz Barstad closed claimant's 
 
            case due to claimant's lack of interest in pursuing a weight 
 
            loss program  (Joint Exhibit 2, page 1).
 
            
 
            Dr. Patrick's initial impairment rating of claimant's lower 
 
            extremity was dated December 12, 1984 (Jt. Ex. 1, p. 6).  He 
 
            later indicated that rating was 20 percent due to the injury 
 
            and "subsequent precipitation of symptoms and limitations" 
 
            (Jt. Ex. 1, p. 2).
 
            
 
            Dr. Neff's impairment rating on January 7, 1985 was five 
 
            percent due to the alleged meniscus injury (Jt. Ex. 1, p. 
 
            27).
 
            
 
                             CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
            There is currently no dispute that claimant suffered an 
 
            injury that arose out of and in the course of his 
 
            employment.  Drs. Patrick and Neff agree that claimant has a 
 
            permanent impairment of the right leg caused by the injury 
 
            to claimant's right knee.
 
            
 
                 The first issue to be resolved is claimant's 
 
            entitlement to healing period benefits.  Iowa Code section 
 
            85.34(1) provides that healing period benefits are payable 
 
            to an injured worker who has suffered permanent partial 
 
            disability until (1) the worker has returned to work; (2) 
 
            the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement from the disabling condition.  
 
            See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 
 
            (Iowa App. 1981).  Healing period benefits can be 
 
            interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
            (Iowa 1986).
 
            
 
            Claimant was injured on April 16, 1984, unsuccessfully 
 
            attempted to return to work on May 29, 1984, and had surgery 
 
            on June 5, 1984.  Dr. Patrick treated post operatively until 
 
            December 1984.  At that time a second surgery was to be 
 
            performed but was not undertaken due to risk of surgery 
 
            because of claimant's weight and an apparent scheduling 
 
            problem.  Dr. Patrick gave claimant a permanent impairment 
 
            rating on December 12, 1984.  Such an impairment rating 
 
            would indicate that claimant has reached maximum medical 
 
            improvement.  It was very near that time that active 
 
            treatment of claimant's knee condition ceased due to 
 
            claimant's weight condition.  Claimant's healing period 
 
            ended December 12, 1984.
 
            The next issue to be resolved is the extent of claimant's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            disability to his right leg.  Dr. Patrick attributed 20 
 
            percent of the impairment to the work injury.  Dr. Neff 
 
            attributed only five percent of the impairment to the work 
 
            injury.  Dr. Patrick's opinion as treating surgeon will be 
 
            given more weight than the opinion of Dr. Neff who saw 
 
            claimant only once for evaluation.  Claimant's permanent 
 
            disability resulting from his work injury is 20 percent of 
 
            the right leg.  This entitles claimant to 44 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 The last issue to be resolved is whether claimant is 
 
            entitled to medical benefits.  The employer shall furnish 
 
            reasonable surgical, medical, dental, osteopathic, 
 
            chiropractic, podiatric, physical rehabilitation, nursing, 
 
            ambulance and hospital services and supplies for all 
 
            conditions compensable under the workers' compensation law.  
 
            The employer shall also allow reasonable and necessary 
 
            transportation expenses incurred for those services.  The 
 
            employer has the right to choose the provider of care, 
 
            except where the employer has denied liability for the 
 
            injury.  Iowa Code section 85.27.  Holbert v. Townsend 
 
            Engineering Co., Thirty-second Biennial Report of the 
 
            Industrial Commissioner 78 (Review-reopen 1975).  Claimant 
 
            has the burden of proving that the fees charged for such 
 
            services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
            The district court in its decision, which is the law of this 
 
            case, has held that the employer is not required to treat 
 
            claimant's obesity.  However, Dr. Patrick was of the opinion 
 
            that further medical treatment, namely an upper tibial 
 
            osteotomy would improve claimant's knee condition.  However, 
 
            it is not clear from this record whether this treatment 
 
            would be for the condition resulting from the injury or from 
 
            claimant's non-work condition.  Therefore, no specific award 
 
            for medical benefits can be made.  Nonetheless, the employer 
 
            does remain liable for the continued medical treatment of 
 
            claimant's knee condition causally related to his work 
 
            injury.
 
            
 
                                       ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
            That defendant is to pay unto claimant healing period 
 
            benefits from April 16, 1984 until December 12, 1984, at the 
 
            rate of two hundred eight and 30/100 dollars ($208.30) per 
 
            week.
 
            
 
            That defendant is to pay unto claimant forty-four (44) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred eight and 30/100 dollars ($208.30) per week from 
 
            December 13, 1984.
 
            
 
            That defendant is to be given credit for benefits previously 
 
            paid.
 
            
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum.
 
            
 
            That defendant shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
            That defendant shall pay the future medical expenses of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant necessitated by his work injury.
 
            
 
                 That defendant shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            That defendant shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50266
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            City of Des Moines
 
            Assistant City Attorney
 
            Safety Office
 
            E. 1st & Locust St.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1802; 5-1803; 5-2501
 
                                               Filed August 31, 1993
 
                                               Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JAMES LUMLEY,    
 
                        
 
                 Claimant,                         File No. 763158
 
                        
 
            vs.                                      R E M A N D
 
                        
 
            CITY OF DES MOINES, IOWA,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            1802
 
            On remand it was found that claimant's healing period ended 
 
            when treating surgeon gave claimant a permanent impairment 
 
            rating for claimant's knee condition.  The district court 
 
            had ruled that treatment of claimant's obesity was not the 
 
            employer's responsibility.  Active treatment of claimant's 
 
            knee condition was not done because of claimant's obesity.  
 
            The healing period did not extend during the treatment of 
 
            claimant's obesity.  Active treatment of claimant's knee 
 
            condition ceased near to the time that the treating 
 
            physician made his impairment rating.
 
            
 
            5-1803
 
            Claimant was found to have a 20 percent permanent partial 
 
            disability to his right leg because of an injury to the 
 
            knee.
 
            
 
            5-2501
 
            Employer was required to furnish medical care for treatment 
 
            of claimant's knee which was causally connected to the work 
 
            injury.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GENE M. ELLIS,
 
         
 
               Claimant,
 
                                                     File No.  763257
 
         VS.
 
                                                   A R B I T R A T I O N
 
         HOLMAN ERECTION COMPANY, INC.,
 
                                                      D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         THE HOME INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gene M. 
 
         Ellis, claimant, against Holman Erection Company, Inc., employer, 
 
         and The Home Insurance Company, insurance carrier.  The case was 
 
         scheduled for hearing on April 15, 1987 at Cedar Rapids, Iowa, 
 
         but was submitted on a written record consisting of claimant's 
 
         exhibits 1 and 2, defendants' exhibits A and B, and claimant's 
 
         deposition.  In the pre-hearing report, the parties stipulated 
 
         that claimant sustained an injury on April 10, 1984 which arose 
 
         out of and in the course of employment, that the injury is a 
 
         cause of permanent disability of some degree, that claimant's 
 
         entitlement to compensation for temporary total disability or 
 
         healing period is from April 11, 1984 to September 26, 1984, a 
 
         period of 24 1/7 weeks for which compensation at the stipulated 
 
         rate has been paid, that the disability is to be evaluated 
 
         industrially as a disability to the body as a whole and that the 
 
         rate of compensation is $249.93 per week.  The only matters in 
 
         dispute are the degree of permanent disability and the date upon 
 
         which interest for the award accrues.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              All evidence submitted was considered when deciding the case 
 
         even though it may not necessarily be referred to in this 
 
         decision.
 
         
 
              Gene M. Ellis is a 64-year-old retired iron worker.  His 
 
         educational background is the tenth grade in high school.  He. 
 
         has been an iron worker ever since leaving high school.  As an
 
         iron worker, he welded, worked at heights of as much as 400 feet 
 
         above the ground and carried welding equipment and reinforcing 
 
         bars.  He stated that nothing in the line of work as a 
 
         construction iron worker is light duty in nature.  His employment 
 
         chiefly came out of the union hiring hall in Cedar Rapids.  In 
 
         order to be referred out of the hall to a job, it is necessary 
 

 
         
 
         
 
         
 
         ELLIS V. HOLMAN ERECTION COMPANY, INC.
 
         Page   2
 
         
 
         
 
         for the worker to have the physical ability to do all types of 
 
         iron work (dep. pages 5-8).
 
         
 
              Ellis was injured on April 10, 1984 while in the employ of 
 
         Holman Erection Company.  He testified that he had been hooking 
 
         onto precast concrete, got between two of them, and one tipped 
 
         over.  He estimated the pieces to weigh a ton and a half.  Ellis 
 
         testified that it struck him on the right shoulder and pinned him 
 
         between two pieces of concrete (dep. page 8).
 
         
 
              Claimant was treated at the University Hospital in Iowa City 
 
         where his injuries were diagnosed as a separation of the 
 
         acromioclavicular joint and fractured ribs.  After a period of 
 
         recovery, claimant was released to return to work by his doctor 
 
         in approximately September, 1984 (dep. page 10).
 
         
 
              Claimant did not return to work, however.  He testified that 
 
         he had no power in his shoulders and lacked the ability to lift 
 
         and carry things.  Claimant testified that it bothers him to lift 
 
         and that, when he does, his shoulder snaps and pops.  He stated 
 
         that it hurts even if he shrugs his shoulders.  He felt that he 
 
         was able to lift 10 pounds repetitively, but felt unable to carry 
 
         50 pounds for any distance.  He stated that he did not trust 
 
         himself to work at heights because he could not trust his ability 
 
         to grip (dep. pages 10-13).  Claimant testified that he retired 
 
         because of this injury and, in doing so, received a reduced union 
 
         pension and reduced social security benefits (dep. page 14-16).
 
         
 
              Claimant testified that a surgical treatment for his 
 
         shoulder had been considered, but that the physicians did not 
 
         advise it (dep. page 11).  Claimant stated that he had not 
 
         returned to work as an iron worker, that he had not attempted to 
 
         return to the work and,that, from helping neighbors and friends, 
 
         he was convinced he would not be able to work in his trade (dep. 
 
         page 20).
 
         
 
              Claimant testified that, to his knowledge, the first 
 
         permanent impairment rating was the one performed by John R. 
 
         Walker, M.D., in Waterloo.
 
         
 
              Claimant's exhibit 1 is a report from Dr. Walker dated 
 
         January 14, 1987.  Dr. Walker noted that claimant's rib pain has 
 
         disappeared, but that any lifting or shrugging of his shoulders 
 
         causes pain and a snapping in the shoulder.  He observed a bony 
 
         lump on claimant's shoulder.  Dr. Walker concluded that claimant
 
         
 
         has atrophy in the supraclavicular area and also involving the 
 
         lateral neck muscles on the right.  He found claimant to have 
 
         decreased grip strength on the right and a loss of 10 degrees of 
 
         abduction.  X-rays taken revealed calcification in the areas of 
 
         the coracoclavicular and the acromioclavicular ligaments which 
 
         the doctor felt was new bone that had formed in the healing 
 
         process.  He noted that there was elevation of the right clavicle 
 
         at the sternoclavicular articulation.  Dr. Walker opined that 
 
         claimant has a permanent partial impairment of 12% of the body as 
 
         a whole based upon those injuries.
 
         
 
              Claimant was also examined by John E. Sinning, Jr., M.D. 
 
         (defendants' exhibits A and B).  The results of Dr. Sinning's 
 

 
         
 
         
 
         
 
         ELLIS V. HOLMAN ERECTION COMPANY, INC.
 
         Page   3
 
         
 
         
 
         examination and assessment of claimant's medical records led him 
 
         to agree with the diagnosis of the injury which had been 
 
         previously made and with the fact that the rib fractures healed 
 
         with no residual problems.  He found claimant to have only minor 
 
         limitation of internal rotation of the right shoulder, perhaps 20 
 
         degrees.  He found thickening of the acromioclavicular joint as a 
 
         reasonable residual of the healing process at that joint.  At 
 
         page 5 of exhibit B, Dr. Sinning stated:
 
         
 
              Recognizing that the distal end of the clavicle is 
 
              prominent, then the complaint of Mr. Ellis about carrying 
 
              the loads on his shoulder seems reasonable.  The clavicle is 
 
              prominent and a heavy load bears on the prominence and 
 
              causes discomfort.  Other than discomfort with direct 
 
              pressure however, there is no indication of any limitation 
 
              in the use of his shoulder.
 
         
 
              In conclusion this man did sustain a significant injury and 
 
              he has made an excellent recovery.
 
         
 
              In exhibit A dated March 25, 1987, Dr. Sinning rated 
 
         claimant as having a 5% functional impairment of the right upper 
 
         extremity which he converted to a 2% impairment of the body as a 
 
         whole.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 10, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Drs. Walker and Sinning both related claimant's current
 
         
 
         shoulder problems to the injury.  No conflicting medical evidence 
 
         is in the record.  It seems to be a logical and readily apparent 
 
         result.  The injury of April 10, 1984 is found to be a proximate 
 
         cause of the difficulties Gene M. Ellis currently experiences in 
 
         his right shoulder area.
 
         
 
              The actual area of injury is the acromioclavicular joint.  
 
         Such is not a part of the arm, even though Dr. Sinning rated it 
 
         as part of the upper extremity.  Those familiar with medical 
 
         terminology are aware that the term "upper extremity" includes 
 
         several structures proximal to the shoulder joint.  Claimant's 
 
         injury is therefore an injury to the body as a whole as 
 
         stipulated by the parties.
 
         
 
              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 
 

 
         
 
         
 
         
 
         ELLIS V. HOLMAN ERECTION COMPANY, INC.
 
         Page   4
 
         
 
         
 
         '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.O
 
         
 
              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).
 
         
 
              Compensation benefits are geared to weekly wage loss and it 
 
         is permissible to consider the fact that a worker will at some 
 
         point retire when assessing industrial disability.  Brecke v. 
 
         Turner-Busch, Inc., 34th Biennial Report, 34 (Appeal Decision 
 
         1979).  As concluded by Dr. Sinning, claimant's injuries were 
 
         significant, but he has made a good recovery.  Nevertheless, he 
 
         is left with impairments which would not necessarily severely 
 
         affect many people, but they are sufficient to take claimant out 
 
         of his lifelong trade of an iron worker due to the physically 
 
         demanding nature of the trade.  Claimant's rate of compensation 
 
         is an indication that he was probably earning in the range of 
 
         $13.00 per hour at the time of injury.  A person with his age and 
 
         employment background could not expect to readily find work that 
 
         would pay much more than half of that $13.00 per hour if he were 
 
         to enter into a new occupation or other line of work.  Claimant 
 
         was approximately 61 years of age, however, at the time of 
 
         injury.  His decision to retire is not unreasonable.  The early 
 
         retirement, however, not only caused claimant to lose income for 
 
         a few years, it also resulted in a decrease in his retirement 
 
         income.  When all
 
         
 
         
 
         the applicable factors of industrial disability are considered, 
 
         it is found that claimant sustained a 25% permanent partial 
 
         disability.
 
         
 
              The next issue to be determined is the date upon which that 
 
         compensation, and interest for lack of payment thereof, 
 
         commences.  Section 85.34(2) of the Code provides that 
 
         compensation for permanent partial disability begins at the 
 
         termination of the healing period.  In this case the parties 
 
         stipulated that it ended on September 26, 1984.  Code section 
 
         85.30 provides that interest is due on all compensation payments 
 
         which are not paid at the time they become due.  The Iowa Supreme 
 
         Court has consistently given a literal construction to those 
 
         sections.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  Farmers 
 
         Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979).  
 
         Section 85.27 of the Code gives the employer the right to choose 
 
         and direct the medical care.  Exhibit 2, the progress notes, 
 
         indicates that in September of 1984 claimant still had symptoms 
 
         and complaints with regard to his shoulder.  He clearly had not 
 
         recovered to his preinjury strength and status.  This case is 
 
         like Teel in the sense that reasonable diligence would have shown 
 
         that some degree of permanency could be expected to result, even 
 
         though the precise degree thereof might not have been 
 
         determinable at that time.  Interest is nothing more than 
 

 
         
 
         
 
         
 
         ELLIS V. HOLMAN ERECTION COMPANY, INC.
 
         Page   5
 
         
 
         
 
         compensation for the loss of the time value of having prompt 
 
         payment and a vehicle by which to avoid intentional delay of 
 
         justly due payments.  It is not a penalty for unreasonable, 
 
         illegal or wrongful action as is the penalty provision found in 
 
         the fourth unnumbered paragraph of Code section 86.13.  
 
         Claimant's entitlement to healing period compensation, and 
 
         interest on unpaid amounts thereof, therefore runs from September 
 
         27, 1984, the end of the healing period.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The injury of April 10, 1984 is a substantial factor in 
 
         producing the complaints, symptoms and disability which currently 
 
         affect Gene M. Ellis with regard to his right shoulder.
 
         
 
              2.  The disability affects claimant's body as a whole and is 
 
         not limited to his right arm.
 
         
 
              3.  Gene M. Ellis has suffered a 25% loss of earning 
 
         capacity as a result of the injuries sustained on April 10, 
 
         1984.
 
         
 
              4.  Claimant's shoulder suffers from weakness and pain to 
 
         the extent that he is unable to perform the normal duties of an 
 
         iron worker, his only trade since leaving high school.
 
         
 
              5.  Claimant has no significant experience or training in 
 
         any occupation other than that of an iron worker.
 
         
 
              6.  Claimant has residual earning capacity, but he 
 
         reasonably chose to retire rather than to enter into a new line 
 
         of work at greatly reduced earnings.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  The injury of April 10, 1984 is a proximate cause of 
 
         claimant's current disability as exists in his right shoulder.
 
         
 
              2.  Claimant's injury is an injury to the body as a whole 
 
         and compensation should be computed under the provisions of 
 
         section 85.34(2)(u) of the Code.
 
         
 
              3.  Claimant's disability, in industrial terms, is a 25% 
 
         permanent partial disability which entitles him to receive 125 
 
         weeks of compensation at the stipulated rate.
 
         
 
              4.  Claimant's entitlement to compensation for permanent 
 
         partial disability begins at the end of the healing period, 
 
         namely, September 27, 1984, and interest on the award accrues 
 
         from such date on all amounts which were not paid when the same 
 
         became due.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of two hundred 
 
         forty-nine and 93/100 dollars ($249.93) per week commencing 
 
         September 27, 1984.
 

 
         
 
         
 
         
 
         ELLIS V. HOLMAN ERECTION COMPANY, INC.
 
         Page   6
 
         
 
         
 
         
 
              IT IS FURTHER ORDERED that all amounts thereof are past due 
 
         and owing and shall be paid to claimant in a lump sum together 
 
         with interest from the date each weekly payment came due at the 
 
         rate of ten percent (10%) per annum to be computed until date of 
 
         payment.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by the Division of Industrial Services 
 
         pursuant to Rule 343-3.1.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants.
 
         
 
              Signed and filed this 31st day of August, 1987.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert F. Wilson
 
         Attorney at Law
 

 
         
 
         
 
         
 
         ELLIS V. HOLMAN ERECTION COMPANY, INC.
 
         Page   7
 
         
 
         
 
         810 Dows Building
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East Sixth Street
 
         Davenport, Iowa 52803
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803, 3800
 
                                                  Filed August 31, 1987
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GENE M. ELLIS,
 
         
 
              Claimant,
 
         
 
         VS.                                      File No. 763257
 
         
 
         HOLMAN ERECTION COMPANY, INC.,         A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and
 
         
 
         HOME INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803, 3800
 
         
 
              Claimant, an iron worker, suffered a separation of the 
 
         acromioclavicular joint when age 61.  When recuperation was 
 
         completed he had physical limitations in lifting and carrying 
 
         with his right shoulder and arm that made him unable to return to 
 
         his lifelong trade and he retired with reduced benefits.  Awarded 
 
         25% permanent partial disability (industrial).
 
         
 
              Interest awarded from the end of the healing period in 
 
         accordance with Teel even though no impairment rating had been 
 
         asked for or given at that time.
 
 
 
         
 
 
            
 
 
 
 
 
             
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES ENGLAND,                               File No. 763543
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         IOWA POWER AND LIGHT COMPANY,                   F I L E D
 
         
 
              Employer,                                 FEB 11 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                 INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by James 
 
         England, claimant, against Iowa Power and Light Company, employer 
 
         and self-insured defendant for benefits as a result of an alleged 
 
         injury which occurred on November 28, 1983.  A hearing was held 
 
         on May 7, 1987 at Council Bluffs, Iowa and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         claimant's exhibit one, joint exhibits two through 39 and the 
 
         testimony of James England (claimant), Ruby England (claimant's 
 
         wife), Norman Jack Thompson (co-employee), Thomas Sieburg 
 
         (co-employee) and Mary Nelson (compensation services manager).
 
         
 
                              PRELIMINARY MATTER
 
         
 
              Defendant resisted claimant's request for late filing of 
 
         brief, but on each occasion the resistance was made after 
 
         claimant's application for an extension of time had already been 
 
         approved.  Therefore, claimant's brief is accepted and has been 
 
         considered in the determination of this case.  It must be 
 
         remembered that a brief is not evidence.
 
         
 
                             PRELIMINARY MATTER
 
         
 
              Defendant objected to claimant's exhibit one which is a 
 
         medical report addressed to whom it may concern signed by Russell 
 
         J. Hopp, D.O. which is dated April 24, 1987.  Defendant objected 
 
         to this exhibit because it was not timely served as required by 
 
         paragraph six of the hearing assignment order.  In this case, 
 
         paragraph six of the hearing assignment order required that all 
 
         written exhibits not previously served shall be served upon 
 
         opposing parties no later than 15 days prior to the date of 
 
         hearing.  The designated hearing date in the hearing assignment 
 
         order, and the actual date of hearing, was May 7, 1987.  Fifteen 
 
         days prior to May 7, 1987 would be April 22, 1987.  Defendant's 
 
         counsel stated that he did not receive this medical report until 
 
         the latter part of April 1987 and less than 15 days prior to 
 
         hearing.  The letter is dated April 24, 1987.  In his brief, 
 
                                                
 
                                                         
 
         defendant's counsel stated that the document was served on April 
 
         30, 1987.  Claimant's counsel responded that Dr. Hopp is an 
 
         earlier authorized physician in this case and that any information 
 
         that he supplied has at all times been available to defendant.  
 
         Claimant's counsel also stated that he sent this report by express 
 
         mail to defendant's counsel as soon as he received it.  
 
         Defendant's counsel replied that Dr. Hopp had not been involved in 
 
         the case since the latter part of 1984.  Defendant's counsel 
 
         maintained that this medical report was a surprise.  Defendant's 
 
         counsel maintained that he had no opportunity to talk to Dr. Hopp, 
 
         to depose Dr. Hopp, or to show the report to any other physician 
 
         or to obtain an independent medical evaluation.  Defendant's 
 
         motion to exclude was deferred at the time of hearing.  At this 
 
         time it is now determined that defendant's motion to exclude 
 
         exhibit one is granted.  Exhibit one was not timely served 
 
         pursuant to paragraph six of the hearing assignment order.  In 
 
         fact, exhibit one was not even drafted until April 24, 1987 which 
 
         is less than fifteen days prior to the date of the hearing 
 
         assignment order.  Therefore, exhibit one is not admitted into 
 
         evidence and will not be considered in the decision of this case.  
 
         The document itself will remain a part of the record as an offer 
 
         of proof in the event of an appeal.
 
         
 
                                  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 time off work for which claimant now seeks either 
 
         temporary total disability or healing period benefits is 
 
         stipulated to be from July 26, 1984 through December 3, 1984.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation is $373.21 per week, in the 
 
         event of an award, which is the weekly rate of compensation based 
 
         upon a gross weekly wage of $647.16 per week for a married person 
 
         with two exemptions on November 28, 1983.
 
         
 
              That defendant is entitled to a credit under Iowa Code 
 
         section 85.38(2) for sick pay or disability income benefits paid 
 
         to an employee under an employee nonoccupational group plan for 
 
         the period July 26, 1984 through December 3, 1984.  The parties 
 
         further stipulated that Division of Industrial Services Rule 
 
         343-8.4 is applicable and that the excess payment by employer, in 
 
         lieu of compensation which exceeds the applicable weekly 
 
         compensation rate, shall not be construed as an advance payment 
 
         of workers' compensation benefits.
 
         
 
              That no claim for credit is made for workers' compensation 
 
         benefits paid prior to hearing.
 
                                                
 
                                                         
 
         
 
              That there are no bifurcated claims
 
         
 
                                      ISSUES
 
         
 
              The parties presented the following issues for 
 
              determination.
 
         
 
              Whether claimant sustained an injury on November 28, 1983 
 
         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 weekly compensation for 
 
         temporary total disability or healing period during a period of 
 
         recovery.
 
         
 
              Whether claimant is entitled to weekly compensation for 
 
         permanent disability benefits, and if so, the commencement date 
 
         of such benefits.
 
         
 
              Whether claimant is entitled to certain medical expenses 
 
         under Iowa Code section 85.27.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was born September 1, 1928 and was 58 years old at 
 
         the time of the hearing.  He was 55 years old at the time of the 
 
         injury and married.  As a child, he had no pulmonary, respiratory 
 
         or allergy problems.  He quit smoking in 1959 due to publicity 
 
         that it was bad for your health.  He was in the military service 
 
         for a year and one-half.  He farmed for a year or so.
 
         
 
              Claimant started to work for employer on August 21, 1951.  
 
         His first position at the Council Bluffs plant was station control 
 
         room operator.  He performed this job from April 27, 1959 to March 
 
         13, 1974.  His second position was defined as electrician control 
 
         mechanic - working foreman (Exhibit 35).  He performed this job 
 
         from May 1, 1974 to December 3, 1984.  Claimant described himself 
 
         as a working foreman and basically he repaired and maintained 
 
         electrical equipment.  All of claimant's jobs for employer are 
 
         shown by job title and dates of assignment in joint exhibit two, 
 
         deposition exhibit one.
 
         
 
              Claimant testified that the plant changed from gas to coal 
 
         energy in the 1960's (Ex. 2, page 15).  Claimant testified that 
 
         he developed some breathing problems in approximately 1977 which 
 
         were the result of an injury to his nose from playing contact 
 
         sports earlier in life.  James Whicker, M.D., an Omaha physician, 
 
         straightened his nose (Ex. 27).  Also, when pollen was high, 
 
                                                
 
                                                         
 
         claimant began sneezing.  Dr. Whicker scraped polyps out of his 
 
         nose and it did not bother him after that (Ex. 2 pp. 10, 15-18). 
 
         The record indicates that James Whicker, M.D., performed surgery 
 
         on an upper airway obstruction secondary to nasal septal 
 
         deformity on December 1, 1976 and also removed one polyp at that 
 
         time (Ex. 27).  Claimant testified that he did not have any 
 
         breathing or allergy problems prior to this at the plant (Ex. 2, 
 
         p. 18).  He also testified that he did not see a doctor before 
 
         this for any sinus or breathing problems (Ex. 2, pp. 20 & 21).
 
         
 
              Claimant testified that in approximately 1980 or 1981 he 
 
         developed sinus problems (Ex. 2, pp. 10 & 18).  He is allergic to 
 
         most kinds of dust (Ex. 2, pp. 13 & 20).  He began having 
 
         drainage in his throat and coughed up phlegm.  Other times it 
 
         would plug up and would not drain.  Claimant testified that he 
 
         still has drainage and coughs up phlegm everyday but not as bad 
 
         since he has left the plant (Ex. 2, p. 24).  Claimant attributed 
 
         the problems to exposure to dust at work (Ex. 2, pp. 9 & 13).  He 
 
         also testified that he was particularly allergic to house dust 
 
         and had installed special filters in his furnace ducts at home 
 
         and changes the bedding at least twice a week pursuant to a 
 
         doctor's recommendation (Ex. 2, p. 13).
 
         
 
              Claimant testified that Dr. Hopp told him that the 
 
         environment at the plant was also contributing to his problem and 
 
 
 
                           
 
                                                         
 
         that he should get out of that environment (Ex. 2, pp. 13 & 23).
 
         
 
              In addition to sinus problems due to dust exposure, claimant 
 
         testified that a company physical examination disclosed that his 
 
         lungs had been exposed to asbestos (Ex. 2, pp. 9, 22 & 23).
 
         
 
              Claimant testified that a substance which he called fly ash 
 
         bothered him the most.  Fly ash is the dust that usually comes 
 
         out of smoke stacks.  Precipitators at the plant collected this 
 
         dust. Claimant stated that he had to go into the precipitators 
 
         and make repairs quite often and this is when it bothered him the 
 
         most.  He added that sometimes there is fly ash outside of the 
 
         precipitators when they have had problems and dumped it on the 
 
         floor (Ex. 2, p. 14).  Claimant related that he entered the 
 
         precipitators about two times a month in 1982 or approximately 25 
 
         times in all that year. He said that he complained to two of his 
 
         supervisors several times about his breathing ( Ex. 2, pp. 18 & 
 
         19).  Dr. Hopp said claimant was allergic to most dust but did 
 
         not identify fly ash specifically.  Claimant added that he was 
 
         also exposed to coal dust daily at the plant (Ex. 2, p. 20).
 
         
 
              Claimant further testified that in 1983 soda ash was added 
 
         to the coal to help it burn better.  Claimant related that his 
 
         condition got ten times worse in 1983.  He said that sometimes he 
 
         was in the precipitator for four to five hours per day for two or 
 
         three days in a row.  At other times it might only be an hour.  
 
         In 1983 his phlegm drainage and stopped up head got worse.  He 
 
         said that employer provided a mask to wear.  He wore it in the 
 
         precipitators and in the coal dust, but it was inadequate.  He 
 
         averred that fly ash was everywhere, even in his teeth.  He said 
 
         that he could take a shower and still not get rid of it.
 
         
 
              Claimant testified that after the company physical 
 
         examination disclosed possible asbestos exposure in 1983 he went 
 
         to see John W. Marshall, M.D.  Claimant maintained that Dr. 
 
         Marshall told him to get out of the dusty area.  Claimant further 
 
         testified that other doctors advised him to get out of the dust. 
 
         Claimant said that the only doctor that employer agreed to pay 
 
         for was Dr. Marshall.
 
         
 
              As for asbestos exposure, claimant said that he has not had 
 
         trouble with his lungs unless he exerted himself like trying to 
 
         climb hills.  If he bumps his ribs, then it hurts in the lung 
 
         area (Ex. 2, p. 22).  However, he admitted that no doctor told 
 
         him that this difficulty is related to asbestos exposure.  It is 
 
         simply his own conclusion (Ex. 2, p. 30).
 
         
 
              As a result of Dr. Marshall's recommendation to remove 
 
         himself from the dust, claimant took sick leave from July 26 
 
         through December 3 of 1984.  During that period he was examined 
 
         by Dr. Fieselmann and as a result of his examination, employer 
 
         directed claimant to return to work, but to wear a mask when he 
 
         was exposed to dust.  When he returned to work claimant elected 
 
         to perform a meter reader job (Ex. 2, p. 6).  He said that this 
 
         was his own decision for his own safety so that he would not get 
 
                                                
 
                                                         
 
         too fouled up where he could not work at all.  He said that he 
 
         took a cut in pay from $16.00 per hour to $12.00 or $13.00 per 
 
         hour. Claimant testified that he could have continued in this job 
 
         as far as his health was concerned, but elected to take a 
 
         voluntary early retirement because it was a good opportunity to 
 
         retire (Ex. 2, pp. 25 & 26).  Claimant said that he felt that he 
 
         could perform either the meter reader job or go back to the 
 
         control room; however, sometimes the control room operators are 
 
         asked to work maintenance and he would not be able to do this 
 
         because he would be exposed to dust again.  He granted that he 
 
         could work in the control room itself for about a dollar an hour 
 
         less than his job as electrician foreman (Ex. 2, pp. 27 & 28).  
 
         Claimant testified that he now receives retirement pay of 
 
         $1,200.00 per month.
 
         
 
              Claimant testified that he is not currently taking 
 
         medication except to breath from an inhaler once or twice a week 
 
         if he plugs up (Ex. 2, pp. 28 & 29).  In addition to avoiding 
 
         dust as the doctor advised, claimant imposed his own restrictions 
 
         of no climbing because a couple of times when he had bad drainage 
 
         he got dizzy and fell (Ex. 2, p. 31).
 
         
 
              Norman Jack Thompson, a 31 year employee of employer, 
 
         testified that he has worked the electrician foreman position 
 
         since it was vacated in December of 1984 by claimant.  He 
 
         verified that employer added soda ash to the coal in late 1983 
 
         and that fly ash exists at employer's plant.  These substances 
 
         usually penetrate the mask and get into your eyes.  He stated 
 
         that after exposure to fly ash he would cough and spit up fly ash 
 
         for two days.  He testified that it is effecting him now, but he 
 
         has not sought medical attention for any pulmonary problems even 
 
         though he has been employed at the plant since 1957.  This 
 
         witness testified that he noticed claimant having difficulty 
 
         breathing and shortness of breath and that claimant spit up mucus 
 
         in the latter part of 1983 after working around the precipitator 
 
         dust.
 
         
 
              Thomas L. Sieburg, testified that he is a 17 year employee 
 
         of employer.  He has been a journeyman electrician for ten years.  
 
         He has worked in the precipitators.  He verified that when 100 
 
         railroad cars dump coal into the hoppers that it creates a lot of 
 
         dust.  He said soda ash is added to the coal to make it burn 
 
         better.  The fly ash is like being in a dust storm.  It gets into 
 
         your mouth and clothes.  It makes it difficult to breath.  It 
 
         causes you to sneeze and cough a lot.  He could see that claimant 
 
         had breathing and mucus problems around October of 1983.  The 
 
         witness said that he did not have to go into the precipitators 
 
         very often, possibly only once every two months.  Most of his 
 
         work was in other parts of the plant away from the coal handling 
 
         area. The witness stated that he has breathing problems too, but 
 
         he has not seen a doctor but he thinks he will see a doctor 
 
         soon.
 
         
 
              Mary Nelson testified that she is the manager of 
 
         compensation services and also handles voluntary early 
 
                                                
 
                                                         
 
         retirement.  She paid claimant's first doctor bill as a workers' 
 
         compensation claim, because the company physical examination by 
 
         Health Evaluations Programs, Inc. (HEP) told claimant to see a 
 
         doctor because of his asbestos exposure.  She testified that she 
 
         denied all subsequent medical bills from claimant and other 
 
         employees because they did not pertain to work-related injuries.
 
         
 
              The HEP report dated November 7, 1980, for an examination 
 
         that took place on October 27, 1980, disclosed claimant was 
 
         allergic to pollen and dust as well as insect bites or stings.  
 
         His chest x-ray was normal with no pneumoconiosis but prior x-rays 
 
         had shown some pleural thickening of both lungs.  No mention is 
 
         made of fly ash or coal dust (Ex. 26).
 
         
 
              A HEP report dated November 16, 1983, for an evaluation that 
 
         took place on November 3, 1983, again showed allergy to pollen or 
 
         dust but advised claimant to seek a clinical x-ray evaluation of 
 
         his own because of the pleural thickening of the left lateral 
 
         chest wall consistent with asbestosis (Ex. 24, pp. 1 & 5).  This 
 
         report also recorded a phlegm productive cough everyday, 
 
         sensitivity to chemicals and sinusitis.  It also confirmed that 
 
         claimant worked with solvent and insect or plant sprays and coal 
 
         dust (Ex. 24, pp. 1-3 & 7).
 
         
 
              As a result of the HEP examination of November 3, 1983 
 
         claimant went to see John W. Marshall, M.D., on November 28, 1983 
 
         as his own choice of personal physician, because he was very 
 
         concerned about asbestosis.  Dr. Marshall ordered x-rays and 
 
         comparative studies were made with older x-rays by Raymond G. 
 
         McDonald, M.D., a radiologist at Jennie Edmundson Hospital in 
 
         Council Bluffs.  Dr. Marshall concluded that it was unlikely that 
 
         the minimal pleural thickening was asbestosis because of the 
 
         chronicity of the condition and the lack of change in x-rays over 
 
         the years.  A needle biopsy would establish or deny asbestosis, 
 
         but based on Dr. Marshall's opinion claimant declined to have a 
 
         pleural biopsy performed (Ex. 22 & 23).  Dr. Marshall referred 
 
         claimant to Vito A. Angelillo, M.D., for a second opinion about 
 
         claimant's abnormal chest x-ray.  Dr. Angelillo is a professor in 
 
         the Division of Pulmonary Medicine and Allergy and Immunology at 
 
         the Creighton University School of Medicine in Omaha.  Claimant 
 
         saw Dr. Angelillo on May 2, 1984.  In addition to the abnormal 
 
         chest x-ray, claimant complained of working in dust and a cough 
 
         productive of clear white phlegm for approximately one and 
 
         one-half years.
 
         
 
              Dr. Angelillo reported on May 17, 1984 that claimant denied 
 
         any respiratory symptoms, anorexia or weight loss.  The doctor 
 
         stated that claimant's examination was unremarkable.  From his 
 
         examination of the x-rays, he determined that they did not give 
 
         rise to classical asbestosis x-ray findings, but only that they 
 
         were consistent with asbestosis.  Dr. Angelillo reported that 
 
         claimant told him he had had considerable asbestos exposure.  Dr. 
 
         Angelillo concluded by simply recommending yearly x-rays and 
 
         pulmonary function tests in order to detect any change that might 
 
         occur.  He returned claimant to work the following day on May 3, 
 
                                                
 
                                                         
 
         1983 without any restrictions [Ex. 17, 18, 18(2) and 19].
 
         
 
              Dr. Marshall, claimant's chosen physician, gave an excellent 
 
         summary of claimant's condition on June 18, 1984.  He continued 
 
         to rule out presently active asbestosis.  He stated that 
 
         claimant's coughing up of white phlegm was a form of chronic 
 
         bronchitis precipitated by dust exposure.  He recommended that 
 
         claimant avoid exposure to dust and further asbestos.  
 
         Furthermore, if he is around dust, he should continue to wear a 
 
         mask at all times [Ex. 16 & 16(2)].
 
         
 
              On July 23, 1984, Dr. Marshall issued a slip which stated 
 
         that claimant "should not work in a dusty area due to health 
 
         problems" (Ex. 15).  Claimant then took sick leave under the 
 
         employee's nonoccupational group plan from July 26, 1984 to 
 
         December 3, 1984.
 
         
 
              Claimant next saw John Fieselmann, M.D., a pulmonary disease 
 
         specialist, in Des Moines at the request of employer on September 
 
         6, 1984.  Claimant complained of a cough that was productive of 
 
         small amounts of clear sputum.  He also complained of a postnasal 
 
         drainage which sometimes became dry causing congestion and 
 
         light-headedness that has resulted in several falls.  Due to the 
 
         falls, claimant has not worked for the last month.  The sinus 
 
         congestion also gives him headaches, occasional sore throats and 
 
         earaches. Claimant also reported to Dr. Fieselmann that he had 
 
         intermittent exposure to asbestos since 1951.  Claimant also 
 
         related his exposure to fly ash and coal dust.  Claimant felt fly 
 
         ash exacerbated his symptoms to the greatest degree.  Dr. 
 
         Fieselmann concluded as follows.
 
         
 
              IMPRESSION:  Based on the pleural calcification and 
 
              thickening along the left lateral chest wall and the 
 
     
 
                           
 
                                                         
 
              pertinent history for asbestos exposure, I feel strongly 
 
              that the X-ray changes are probably secondary to asbestos 
 
              exposure.  However, this is a marker of exposure rather than 
 
              a marker of disease or impairment.  Based on the patient's 
 
              pulmonary function and physical exam, there is no evidence 
 
              of asbestosis.  The patient's symptoms and his pulmonary 
 
              function suggests an irritable airway syndrome as a cough 
 
              variant of asthma.  I suspect the patient has an asthmatic 
 
              bronchitis based on the irritation of the dust that he is 
 
              exposed to in his environment.  In addition, he appears to 
 
              have an allergic rhinitis and sinusitis with postnasal drip. 
 
              I suspect that these difficulties exacerbate a middle ear 
 
              problem and that this may account for his dizziness and 
 
              lightheadedness [sic].  It is also possible that his 
 
              lightheadedness [sic] and falling episodes are related to 
 
              something totally different.
 
         
 
         (Ex. 13, pp. 2 & 3)
 
         
 
              Dr. Fieselmann prescribed medication and suggested claimant 
 
         wear a mask to filter out offending dust.  The doctor did not 
 
         take him off work at this time.  On the contrary, the employer 
 
         ordered claimant back to work as a result of his visit to Dr. 
 
         Fieselmann (Ex. 34).
 
         
 
              Claimant was next examined by Russell J. Hopp, D.O., an 
 
         allergist, in Council Bluffs on October 19, 1984 because Dr. 
 
         Fieselmann had recommended that claimant see an allergist. 
 
         Claimant complained to Dr. Hopp of nasal congestion, upper 
 
         respiratory track congestion, nasal drainage, soreness of the 
 
         throat and throat clearing for approximately three years, which 
 
         claimant felt were triggered by exposure to fly ash at work.  Dr. 
 
         Hopp diagnosed hyperreactive airway disease and cough variant 
 
         asthma due to long time exposure to dust (Ex. 10).  However, on 
 
         November 9, 1984 Dr. Hopp clarified that claimant had preexisting 
 
         allergic disease aggravated by his exposure to fly dust at work. 
 
         Dr. Hopp said that claimant had intrinsically determined 
 
         hyperreactive airway disease that is probably aggravated by 
 
         exposure to dust at work (Ex. 9).  On November 16, 1984 Dr. Hopp 
 
         again stated that claimant had preexisting allergy and that 
 
         exposure to fly ash made his symptoms more clinically evident.  
 
         Dr. Hopp said that even if claimant were removed from fly ash he 
 
         would continue to have hyperreactive airway disease that would 
 
         manifest itself by shortness of breath.  His symptomatology would 
 
         improve if he was not continually exposed to fly ash (Ex. 8).  On 
 
         December 7, 1984 Dr. Hopp thought that the meter reader job should 
 
         be within claimant's physical capabilities provided that walking 
 
         in the cold weather would not aggravate his chest congestion (Ex. 
 
         7).  Claimant was able to perform this job from December 3, 1984 
 
         until his voluntary early retirement on September 1, 1985.
 
         
 
              On December 30, 1985 claimant was examined again in Des 
 
         Moines by another pulmonary disease specialist, John Glazier, 
 
         M.D. Dr. Glazier stated that claimant was free of pulmonary 
 
         symptoms at that time (Ex. 4) and that his pulmonary function 
 
                                                
 
                                                         
 
         tests were normal (Ex. 4 & 6).  As to possible asbestosis, Dr. 
 
         Glazier said:
 
         
 
              My impression is that Mr. England has asbestos exposure by 
 
              history as well as an x-ray which shows a benign abnormality 
 
              compatible with asbestos exposure, i.e. pleural thickening. 
 
              However, at this point in time, I find no evidence of 
 
              serious consequences of his asbestos exposure.  That is, I 
 
              find no evidence of bronchogenic carcinoma, mesothelioma or 
 
              interstitial lung disease.
 
         
 
         (Ex. 4)
 
         
 
              Dr. Angelillo examined claimant again on July 22, 1986.  He 
 
         stated that his examination in May of 1984 showed bilateral 
 
         pleural thickening consistent with asbestos exposure but it did 
 
         not appear that claimant was incapacitated in anyway.  Dr. 
 
         Angelillo's pulmonary function tests performed both in May of 
 
         1984 and again on July 22, 1986 were completely within normal 
 
         limits. He stated that claimant was only mildly symptomatic and 
 
         experienced dyspnea only after heavy exertion.  He added that 
 
         claimant could walk as much as possible without any difficulty. 
 
         Dr. Angelillo concluded as follows:
 
         
 
                   In response to your questions concerning disability 
 
              related to asbestos exposure, it does not appear to me that 
 
              any clinical disability exists for Mr. England.  His only 
 
              evidence of asbestos exposure is the bilateral pleural 
 
              thickening.  He, however, is not incapacitated with 
 
              shortness of breath and his pulmonary function test is 
 
              completely WNL. I, therefore, cannot make any percentage 
 
              rating since I do not feel that he is disabled or impaired 
 
              as a result of this asbestos exposure.
 
         
 
         (Ex. 3)
 
         
 
              Claimant requested payment of four medical bills.
 
         
 
           DATE       MEDICAL PROVIDER                     AMOUNT
 
         
 
         7-23-84      Bluffs Medical Assoc., P.C.
 
                      John W. Marshall, M.D.
 
                      Office Call                         $  25.00
 
         
 
         4-26-84      Jennie Edmundson Hospital
 
                      Chest X-ray                            39.00
 
         
 
         5-02-84      Creighton Health Prof. Center
 
                      Vito A. Angelillo, M.D.               106.80
 
         
 
         4-26-84      Bluffs Medical Assoc., P.C.
 
                      John W. Marshall, M.D.
 
                      Office Call                            25.00
 
         
 
                                                TOTAL      $195.80
 
                                                
 
                                                         
 
         
 
                        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(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 28, 1983 which 
 
         arose out of and in the course of his employment.  McDowell 
 
         v.Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              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 (1960), and cases cited.
 
         
 
              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 v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 28, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              Claimant did not prove that he has asbestosis.  Nor did he 
 
         prove that his pleural thickening was caused by his work for 
 
         employer.  In the medical records, it appears that claimant told 
 
         doctors he was exposed to asbestos.  There is no other evidence 
 
         of this fact.  There is no evidence of how long he was exposed or 
 
         how much he was exposed.  None of the doctors actually diagnosed 
 
         asbestosis, but rather only found that the x-rays were consistent 
 
         with asbestosis.  Dr. Marshall concluded that the minimal pleural 
 
         thickening probably was not asbestosis based upon the x-ray 
 
         studies over a number of years done by Dr. McDonald, the 
 
         radiologist, and due to the fact that the condition has persisted 
 
         for many years without any evidence of change over the years. 
 
         Apparently, claimant was satisfied with the conclusion of Dr. 
 
         Marshall and Dr. McDonald because he declined the opportunity to 
 
         have a needle biopsy of his pleura to confirm or deny asbestosis 
 
         (Ex. 22 & 23).  Dr. Angelillo, a pulmonologist and professor of 
 
         pulmonary medicine, said that claimant's x-rays were not 
 
         classical asbestosis x-rays, but rather that they were only 
 
         consistent with asbestosis [Ex. 17, 18 & 18(2)].  Dr. Fieselmann, 
 
         another pulmonologist, concluded that claimant's x-rays were 
 
         probably secondary to asbestos exposure, but was careful to 
 
         clarify that this was a marker of exposure rather than a marker 
 
         of disease or impairment.  He flatly stated there is no evidence 
 
         of asbestosis [Ex. 13(2), 13(3)].
 
         
 
              Dr. Glazier, another pulmonologist, found that claimant 
 
         demonstrated asbestos exposure by history and x-ray, by way of 
 
 
 
                        
 
                                                         
 
         pleural thickening, but he found no serious consequences from his 
 
         asbestos exposure and ruled out by name the diseases which he 
 
         felt would result from it (Ex. 4).  It was also pointed out by 
 
         Dr. McDonald, the radiologist, on December 23, 1983 (Ex. 23) and 
 
         again on April 26, 1984 (Ex. 21), that claimant's pleural 
 
         thickening could also have been caused by a previous inflammatory 
 
         process or a possible chest wall trauma.
 
         
 
              In conclusion, claimant did not prove that he suffered from 
 
         asbestosis.  He did not prove that the pleural thickening was 
 
         caused by his employment.  Claimant did not prove any disease, 
 
         impairment or disability as a result of his pleural thickening. 
 
         Therefore, as to asbestosis, claimant did not sustain the burden 
 
         of proof by a preponderance of the evidence that he sustained an 
 
         occupational disease or an injury which arose out of and in the 
 
         course of his employment with employer.
 
         
 
              Claimant did prove by a preponderance of the evidence that 
 
         he received an injury which arose out of and in the course of his 
 
         employment with employer in so far as he sustained a temporary 
 
         aggravation of a preexisting health condition.  Dr. Marshall 
 
         declared on June 18, 1984 that claimant's persistent production 
 
         of white phlegm was a form of chronic bronchitis precipitated by 
 
         dust exposure.  He felt claimant should avoid further exposure to 
 
         dust and asbestos [Ex. 16 & 16(2)].  On July 23, 1984 he wrote on 
 
         his prescription pad that claimant should not work in a dusty 
 
         area due to health problems.  As a result, claimant took, and 
 
         apparently was granted, sick leave from his employment because 
 
         claimant was off work on sick leave from July 26, 1984 through 
 
         December 3, 1984 and he received his full weekly wage of $647.16 
 
         per week during that entire period.
 
         
 
              Dr. Marshall is supported by Dr. Fieselmann who said 
 
         claimant had an irritable airway syndrome which was a cough 
 
         variant of asthma.  He further defined it as asthmatic bronchitis 
 
         based on the irritation of the dust to which he is exposed in his 
 
         environment.  In addition, Dr. Fieselmann said that claimant 
 
         suffered from allergic rhinitis and sinusitis with postnasal drip 
 
         [Ex. 13(2), 13(3)].
 
         
 
              Dr. Hopp, the allergist, unequivocally stated that 
 
         claimant's nasal congestion and drainage and upper respiratory 
 
         tract congestion were triggered by exposure to fly ash at work 
 
         (Ex. 10). Nevertheless, he was careful to clarify that claimant 
 
         suffered from preexistent and intrinsically determined allergic 
 
         disease which was aggravated by his exposure to fly ash dust at 
 
         work (Ex. 9).  Dr. Hopp added that if claimant were removed from 
 
         the work place that he would continue to have difficulty but that 
 
         his symptomatology would improve if he were not continually 
 
         exposed to fly ash (Ex. 8).  The testimony of claimant, 
 
         claimant's wife, Thompson and Sieburg definitely established that 
 
         claimant worked in a dusty environment.  This is further 
 
         confirmed by the hospital admission form when claimant was 
 
         hospitalized on November 20, 1980, when he fell through the 
 
         ceiling at work.  The admission form recorded that there is 
 
                                                
 
                                                         
 
         evidence of coal dust in the mouth and inside of the nares too.  
 
         The report commented that his mouth hygiene and hydration were 
 
         good except for the coal dust [Ex. 21(8) & 38(21)].
 
         
 
              Claimant returned to work on December 4, 1984 and performed 
 
         the job of meter reader until his voluntary early retirement on 
 
         September 1, 1985.
 
         
 
              Dr. Angelillo, Dr. Fieselmann and Dr. Glazier all performed 
 
         pulmonary function tests and all of them reported that claimant's 
 
         pulmonary function was within normal limits.  Dr. Angelillo 
 
         actually performed these tests twice, once in May of 1984 and 
 
         again in July of 1986 (Ex. 3).
 
         
 
              From the foregoing evidence, it is determined that claimant 
 
         sustained a temporary aggravation of a preexisting condition.  
 
         The preexisting condition was diagnosed by Dr. Marshall as 
 
         chronic bronchitis [Ex. 16 & 16(2)].  It was diagnosed by Dr. 
 
         Fieselmann as irritable airway syndrome which was a cough variant 
 
         of asthma, more particularly, asthmatic bronchitis [Ex. 13(2), & 
 
         13(3)].  It was defined by Dr. Hopp as hyperreactive airway 
 
         disease and cough variant asthma (Ex. 10).  All three doctors 
 
         indicated claimant's condition was aggravated by exposure to dust 
 
         or fly ash in claimant's environment (Ex. 16, 16(2), 13, 13(2), & 
 
         10].
 
         
 
              Consequently, it is determined that claimant is entitled to 
 
         temporary total disability benefits pursuant to Iowa Code section 
 
         85.33(1) from July 26, 1984 through December 3, 1984.  However, 
 
         since claimant has already been paid benefits from the employee 
 
         nonoccupational group plan as sick leave benefits in excess of 
 
         the workers' compensation benefit rate for this same period of 
 
         time, then it would appear that claimant has already been fully 
 
         paid for this entitlement.  Actually, claimant received his full 
 
         weekly salary rather than the workers' compensation rate.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained any permanent 
 
         impairment or permanent disability caused by his employment or as 
 
         a result of the temporary aggravation of his preexisting allergy 
 
         conditions.  None of the doctors found claimant to be impaired or 
 
         disabled and none of the doctors assessed an impairment rating. 
 
         None of the doctors said that claimant could not continue to work 
 
         in his job as electrician foreman even though he was cautioned to 
 
         wear a mask when there was exposure to dust in his job.  Dr. 
 
         Marshall cautioned claimant to wear a mask when exposed to dust 
 
         but never removed him from this job permanently [Ex. 16(2)].  Dr. 
 
         Fieselmann also cautioned claimant that he should wear a mask 
 
         when exposed to dust but did not remove him from this job 
 
         permanently [Ex. 13(3)].  Claimant did not suffer from 
 
         asbestosis.  His pulmonary function was always medically 
 
         established as normal on several occasions.
 
         
 
              There is some evidence claimant could have disability bumped 
 
         into his former job as control room operator at approximately the 
 
                                                
 
                                                         
 
         same pay as the electrician foreman job rather than to bump into 
 
         the meter reader job.  There was no evidence that the allergies 
 
         from which claimant suffered were actually caused or permanently 
 
         aggravated by his employment.  On the contrary, Dr. Hopp stated 
 
         that they were preexistent and intrinsically determined. 
 
         Consequently, it is determined that claimant did not sustain the 
 
         burden of proof that his employment was the cause of any 
 
         permanent impairment or permanent disability.  Therefore, 
 
         claimant has not proven entitlement to any permanent disability 
 
         benefits.
 
         
 
              The medical bills submitted by claimant were for diagnosis 
 
         or treatment of the temporary aggravation of his preexisting 
 
         condition.  Defendant offered no evidence to the contrary. 
 
         Therefore, claimant is entitled to payment of the four medical 
 
         bills which were attached to the prehearing order itemized above 
 
         which total $195.80.
 
         
 
                                FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer on November 28, 
 
              1983.
 
         
 
              That claimant established that he did work in a dusty 
 
         environment.
 
         
 
              That claimant did not prove that he suffered from the 
 
         disease of asbestosis.
 
         
 
              That claimant did demonstrate some minimal pleural 
 
         thickening in his lungs but did not prove that it was caused by 
 
         his employment.
 
         
 
              That claimant suffered from preexisting intrinsically 
 
         determined allergies which were not proven to be caused by his 
 
         employment.
 
         
 
              That claimant's employment exposure to fly ash and coal dust 
 
         did temporarily aggravate his preexisting allergic conditions.
 
         
 
              That Dr. Marshall directed claimant not to work in dust on 
 
         July 23, 1984.
 
         
 
              That claimant took sick leave, an employer paid sick leave, 
 
         from July 26, 1984 to December 3, 1984.
 
         
 
              That claimant returned to work on December 4, 1984 by virtue 
 
         of a disability bump into a meter reader job.
 
         
 
              That claimant did not prove he suffered any permanent 
 
         impairment or any permanent disability based on the medical 
 
         evidence admitted into evidence.
 
                                                
 
                                                         
 
         
 
              That claimant incurred $195.80 in medical expenses for the 
 
         diagnosis and treatment of his work-related temporary aggravation 
 
         of his preexisting allergic conditions.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Based upon the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made.
 
         
 
              That claimant sustained an injury on November 23, 1983 that 
 
         arose out of and in the course of his employment with employer in 
 
         that he sustained an aggravation of a preexisting allergic 
 
         condition.
 
         
 
              That the aggravation was the cause of claimant's absence 
 
         from work from July 26, 1984 through December 3, 1984.
 
         
 
              That claimant is entitled to temporary total disability 
 
         benefits from July 26, 1984 through December 3, 1984.
 
         
 
              That defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for the payment of sick leave benefits in the 
 
         amount of $647.16 per week from July 26, 1984 through December 3, 
 
         1984, as stipulated by the parties.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that his work was the cause of any 
 
         permanent functional impairment or permanent disability.
 
         
 
              That claimant is not entitled to any permanent disability 
 
         benefits.
 
         
 
                               
 
                                                         
 
              That claimant is entitled to payment of $195.80 in medical 
 
         expenses as claimed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant eighteen point seven one four 
 
         (18.714) weeks of temporary total disability benefits at the rate 
 
         of three hundred seventy-three and 21/100 dollars ($373.21) per 
 
         week for the period from July 26, 1984 through December 3, 1984 
 
         in the total amount of six thousand nine hundred eighty-four and 
 
         25/100 dollars ($6,984.25) commencing on July 26, 1984.
 
         
 
              That defendants are entitled to a credit under Iowa Code 
 
         section 85.38(2) for sick leave benefits paid to claimant at the 
 
         rate of six hundred forty-seven and 16/100 dollars ($647.16) per 
 
         week for the same period of time as stipulated by the parties. 
 
         Therefore, claimant has been fully paid for all of his 
 
         entitlement.
 
         
 
              That since claimant is fully paid for his entitlement then 
 
         no interest is due under Iowa Code section 85.30.
 
         
 
              That defendant pay claimant one hundred ninety-five and 
 
         80/100 dollars ($195.80) in medical expenses.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That the defendant file claim activity reports as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 11th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon Gallner
 
         Attorney at Law
 
         PO Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr., Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg
 
                                                
 
                                                         
 
         Des Moines, Iowa  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106; 1108.30; 1402.20; 
 
                                            1402.30; 1402.40; 2203;
 
                                            2205; 2206; 1801; 1803;
 
                                            1701; 1703; 2501
 
                                            Filed February 11, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES ENGLAND,
 
         
 
              Claimant,                              File No. 763543
 
         
 
         vs.                                      A R B I T R A T I 0 N
 
         
 
         IOWA POWER AND LIGHT COMPANY,               D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1106; 1108.30; 1402.20; 1402.30; 1402.40; 2203; 2205; 2206
 
         
 
              Claimant did not prove asbestosis or that his minimal 
 
         pleural thickening was caused by his employment.  He did prove 
 
         that fly ash and coal dust at work aggravated his preexisting and 
 
         intrinsically determined allergic conditions.
 
         
 
         1801; 1803
 
         
 
              Claimant allowed temporary total disability for time 
 
         claimant was ordered not to work in a dusty environment by his 
 
         doctor. Claimant not awarded any permanent partial disability 
 
         because he did not prove any permanent functional impairment or 
 
         any permanent physical impairment caused by the dusty environment 
 
         in which he worked.
 
         
 
         1701; 1703
 
         
 
              Employer given credit for payment of sick leave pursuant to 
 
         Division of Industrial Services Rule 343-8.4.
 
         
 
         2501
 
         
 
              Employer ordered to pay for claimant's medical bills 
 
         incurred in the diagnosis and treatment of the temporary 
 
         aggravation of his preexisting condition.
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LaVERN WAMPLER,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 763544
 
            vs.                           :                   823404
 
                                          :                   825100
 
            WILSON FOODS CORPORATION,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns three proceedings in arbitration 
 
            brought by LaVern Wampler against his former employer, 
 
            Wilson Foods Corporation, and the Second Injury Fund of Iowa 
 
            based upon a stipulated injury to his left hand that 
 
            occurred on or about April 1, 1984.  That case, file number 
 
            763544, involves only one issue, the extent of permanent 
 
            partial disability of the claimant's left hand.  The other 
 
            two files, 823404 and 825100 deal with alleged injuries to 
 
            claimant's right hand.  The issues are whether the claimant 
 
            sustained injury which arose out of and in the course of 
 
            employment, the claimant's entitlement to compensation for 
 
            temporary total disability or healing period, the claimant's 
 
            entitlement to compensation for permanent partial disability 
 
            from the employer and also from the Second Injury Fund of 
 
            Iowa.  The stipulated rate of compensation was $211.60 per 
 
            week.  The benefit schedule shows the correct rate to be 
 
            $211.62 based upon the claimant being single, with only 
 
            himself as an exemption, and stipulated gross earnings of 
 
            $357.39 per week.  The stipulated rate is modified 
 
            accordingly to show the correct rate of $211.62 per week.  
 
            It was conceded at hearing by claimant's counsel that both 
 
            alleged injuries of 1986 are probably the same injury and 
 
            that assessment is found to be correct.
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            The record in this proceeding consists of testimony from 
 
            LaVern Wampler and jointly offered exhibits 1 through 15.  
 
            The case was heard at Storm Lake, Iowa, on July 2, 1991.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 LaVern Wampler is a 28-year-old unmarried man who lives 
 
            at Cherokee, Iowa.  He ceased his formal education during 
 
            the eleventh grade, but subsequently obtained a GED.  Prior 
 
            to commencing employment with Wilson Foods Corporation in 
 
            late 1983, Wampler had worked primarily in the automotive 
 
            service, tire and muffler industry.  He also worked in the 
 
            construction industry.
 
            
 
                 A great deal of Wampler's work at Wilson Foods was 
 
            knife work, boning and pulling intestines from carcasses.  
 
            He developed symptoms in his left wrist which included a 
 
            shocky feeling, numb fingers and dropping things.  After 
 
            treating with the company physician, Wampler was referred to 
 
            orthopaedic surgeon John F. Connolly, M.D.  Claimant was 
 
            diagnosed as having carpal tunnel syndrome and on June 19, 
 
            1984, carpal tunnel release surgery was performed on 
 
            claimant's left hand (exhibit 4).  After recuperating from 
 
            the surgery, claimant resumed employment with Wilson Foods 
 
            and again was assigned to boning hams and picnics.  He 
 
            experienced difficulty in performing that job assignment.  
 
            On April 22, 1985, Dr. Connolly rated claimant has having a 
 
            ten percent permanent functional impairment of his left 
 
            wrist (exhibit 7).
 
            
 
                 Wampler began experiencing symptoms in his right hand 
 
            in late 1985.  On November 7, 1985, he was seen by the plant 
 
            nurse with complaints involving his right forearm and wrist.  
 
            On March 26, 1985, claimant saw Keith O. Garner, M.D., with 
 
            complaints regarding pain in his right hand (exhibit 9, page 
 
            2).  On June 4, 1986, claimant was again seen by the plant 
 
            nurse with complaints involving his right wrist (exhibit 
 
            10).  In early June 1986, Wampler was having sufficient 
 
            problem and pain that he decided to leave his employment 
 
            with Wilson Foods.  He testified at hearing that he did not 
 
            want to make his arms any worse than what they had already 
 
            become.  He quit effective June 26, 1986.
 
            
 
                 After leaving Wilson, Wampler engaged in a number of 
 
            activities.  He helped his father build a new house.  His 
 
            primary activity in the project was staining and varnishing 
 
            woodwork.  He searched for work in Sioux City, but found 
 
            none.  He applied for work with John Morrell in Sioux Falls, 
 
            South Dakota, but was not hired due to his wrist.  Wampler 
 
            held a temporary job installing plastic in preparation for 
 
            an asbestos removal project.  He worked in the automotive 
 
            tire industry in Colorado on two different occasions.  He 
 
            bartended in Cherokee.  Wampler moved to Las Vegas, Nevada, 
 
            completed Dealers' School and began to work as a dealer in a 
 
            casino.  He did not like the work and then obtained a job as 
 
            an apprentice maintenance person in a casino where he earned 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            $5.50 per hour.  Wampler stated that he had earned in the 
 
            range of $150-$200 per week as a dealer, although a good 
 
            dealer had the potential for earning as much as $30,000 
 
            annually.  In the spring of 1990, Wampler returned to 
 
            Cherokee, Iowa.  He bartended for a time, worked at a door 
 
            factory in Holstein, Iowa, and then obtained work in the 
 
            irrigation field.  He now works maintaining electrical 
 
            thermostats and hydraulic drives for thermal curtains in 
 
            turkey barns.  He earns $6.00 per hour.  Much of his work 
 
            has required strenuous use of his hand.
 
            
 
                 Over the years, Wampler has had continuing difficulty 
 
            with his hands.  At the time of hearing, he described his 
 
            right as being more bothersome than the left.  He described 
 
            difficulty with activities such as overhead work, heavy work 
 
            and activities such as using a screwdriver.  Wampler has not 
 
            held any jobs which required repetitive activity since 
 
            leaving Wilson.
 
            
 
                 Four different physicians have in some manner evaluated 
 
            Wampler's disability.  There is no indication that he was 
 
            actually taken off work due to the right hand problems.  He 
 
            left work in order to prevent the condition from progressing 
 
            to the point of becoming actually disabling.  The surgeon 
 
            who performed the left carpal tunnel release surgery 
 
            assigned a 10 percent permanent partial impairment rating 
 
            (exhibit 7).  Subsequently, in February of 1986, Wampler 
 
            received a 15 percent impairment rating of the left hand 
 
            from Horst G. Blume, M.D. (exhibit 2).  In 1988, Dr. Blume 
 
            confirmed his 15 percent impairment rating of claimant's 
 
            left hand and assigned a 20 percent impairment rating to the 
 
            right hand.  In assessing the disability, Dr. Blume related 
 
            that claimant's right hand grip strength was reduced and 
 
            that the flexion movement was about 80-90 percent of normal 
 
            strength of the right wrist.  Dr. Blume attributed the 
 
            impairment of both hands to claimant's work activities at 
 
            Wilson Foods (exhibit 3).
 
            
 
                 In 1989, claimant was evaluated by Pat Luse, D.C.  Dr. 
 
            Luse found claimant to have a 19 percent impairment of the 
 
            right hand and a 28 percent impairment of the left hand.  
 
            Dr. Luse found claimant's grip strength to be decreased 
 
            bilaterally, but most significantly on the left.  He found a 
 
            mildly decreased range of wrist motion bilaterally.  Dr. 
 
            Luse also found denervation in the left medial nerve 
 
            distribution.  Dr. Luse was of the opinion that claimant 
 
            appeared to have thoracic outlet syndrome.  He was also of 
 
            the opinion that the impairment of claimant's left and right 
 
            wrists was the result of repetitive work claimant performed 
 
            for Wilson Foods (exhibit 1).
 
            
 
                 Claimant was evaluated by Scott B. Neff, D.O., on 
 
            November 20, 1986.  Dr. Neff felt that the claimant's 
 
            symptoms were not work related because he had been off work 
 
            and the symptoms had not resolved.  Dr. Neff did note some 
 
            abnormalities in claimant's right wrist (exhibit 13).  In 
 
            July 1988, claimant was again evaluated by Dr. Neff, this 
 
            time with the assistance of physical therapist Thomas W. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Bower, L.P.T.  Claimant was found to have full range of 
 
            motion of both wrists, equal pinch grip bilaterally, but the 
 
            grip strength testing showed inconsistencies.  The 
 
            conclusion was reached that claimant had no permanent 
 
            impairment in either hand (exhibits 14 and 15).
 
            
 
                 It is found that the impairment rating of claimant's 
 
            left hand as made by Dr. Connolly is adopted as being 
 
            correct over the impairments of any of the other three 
 
            physicians.  Dr. Connolly was the treating physician.  He 
 
            had the most contact with claimant and was most familiar 
 
            with the actual condition that existed and its history.  The 
 
            rating of no impairment for either extremity as made by Dr. 
 
            Neff is rejected, particularly because it is irreconcilable 
 
            with the rating from Dr. Connolly.
 
            
 
                 Wampler has continuing complaints and limitations 
 
            affecting both of his hands similarly.  The impairment 
 
            ratings from Drs. Blume and Luse are impaired since they are 
 
            in some ways inconsistent with each other.  They do agree, 
 
            however, with the proposition that claimant has impairment 
 
            of his right hand and that the impairment was caused by his 
 
            repetitive employment activities with Wilson Foods.  Their 
 
            ratings of both hands are similar, though not identical, 
 
            bilaterally.  Dr. Connolly has not treated or addressed 
 
            claimant's right hand.  Dr. Neff's rating of no impairment 
 
            for the right hand is rejected since it is inconsistent with 
 
            the claimant's complaints and it is also impaired due to the 
 
            fact that it is the same as the rating for the left hand, 
 
            which rating is irreconcilable with the ratings from the 
 
            other three physicians.  It is found that LaVern Wampler has 
 
            a five percent impairment of his right hand as a result of 
 
            his June 1986 injury.  It is further found that the correct 
 
            date of injury in this case is June 26, 1986, the day 
 
            claimant resigned from Wilson Foods, but the impact of using 
 
            that date rather than June 4, 1986, the date which was 
 
            pleaded, provides no difference in the result of the case.
 
            
 
                 Since leaving Wilson, Wampler has held a number of 
 
            different positions, many of which were in the same types of 
 
            work as he performed prior to commencing employment at 
 
            Wilson Foods.  He has remained employed in the automotive 
 
            tire industry and also in the construction industry with 
 
            earnings comparable to those he formerly earned in those 
 
            occupations.  The fact that he was able to function as a 
 
            card dealer in Las Vegas indicates that he has considerable 
 
            use of his hands and reasonable manual dexterity.  His own 
 
            self-described symptoms and complaints are not inconsistent 
 
            with his being able to work as a dealer in Las Vegas.  His 
 
            limitations are against repetitive activity and certain 
 
            activities such as using a screwdriver and working overhead.  
 
            Many occupations do not require those types of activities.  
 
            Nevertheless, Wampler is limited in his accessibility to 
 
            jobs as a result of the condition of his hands.  It is 
 
            determined that he has experienced a ten percent reduction 
 
            in his earning capacity as a result of the injuries to his 
 
            hands.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 Since claimant's left hand injury is stipulated and 
 
            shown by the record to be limited to his left hand, the 
 
            disability is compensated under section 85.34(2)(l).  The 10 
 
            percent impairment rating from Dr. Connolly entitles him to 
 
            receive 19 weeks of compensation for the left hand.
 
            
 
                 The disability of the right hand is likewise 
 
            compensated under that same section.  A 5 percent disability 
 
            entitles him to recover 9.5 weeks of permanent partial 
 
            disability compensation from the employer.  It was 
 
            stipulated that the 10 percent permanent partial disability 
 
            of the left hand has been previously compensated.  The 
 
            employer is therefore responsible for paying 9.5 weeks of 
 
            permanent partial disability compensation for claimant's 
 
            right hand, payable commencing June 26, 1986, at the rate of 
 
            $211.62 per week.  Since there is no healing period, the 
 
            compensation for permanent partial disability commences with 
 
            the date of injury.  In this case, the actual date of injury 
 
            is the last day of work, namely June 26, 1986.
 
            
 
                 Since claimant had a disability of the left hand and 
 
            then subsequently sustained disability to his right hand, he 
 
            is entitled to have the disability evaluated industrially 
 
            under the Second Injury Compensation Act.
 
            
 
                 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 
 
            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).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 The claimant has been able to continue supporting 
 
            himself in the same occupations and same types of work as he 
 
            had used to support himself prior to the time he commenced 
 
            employment with Wilson Foods.  While he has experienced a 
 
            significant reduction in his actual earnings since leaving 
 
            Wilson, that reduction is not actually indicative of the 
 
            change in his earning capacity.  The change in actual 
 
            earnings is due to the change of employers.  It is 
 
            specifically noted that claimant has not been shown by the 
 
            medical evidence to have been recommended or directed to 
 
            change employment.  He did so of his own accord, albeit a 
 
            decision that was probably prudent under the circumstances.  
 
            The fact that he was not forced to leave by medical experts 
 
            or by his employer does not mean that he has no disability.  
 
            It does, however, mitigate the amount of disability.  In 
 
            this case, it is determined that the claimant has a 10 
 
            percent permanent partial disability.  This entitles him to 
 
            50 weeks of compensation.  After deducting the compensable 
 
            value of the two hand injuries, the net result is that 
 
            claimant is entitled to recover 21.5 weeks of permanent 
 
            partial disability compensation from the Second Injury Fund.  
 
            Those benefits from the Fund are payable commencing on the 
 
            date of this decision in a lump sum since they are all 
 
            accrued.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
            467 (Iowa 1990).
 
            
 
                 File numbers 825100 and 823404 do in fact deal with the 
 
            same injury.  Since file number 825100 asserts an injury 
 
            date of June 4, 1986, a date much closer to the time 
 
            claimant left employment than file number 823404, it is the 
 
            file which will be used for the recovery in this case.  File 
 
            number 823404 is therefore subject to dismissal since it 
 
            duplicates number 825100.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that, in file number 825100, 
 
            the employer, Wilson Foods Corporation, pay LaVern Wampler 
 
            nine point five (9.5) weeks of compensation for permanent 
 
            partial disability at the rate of two hundred eleven and 
 
            62/100 dollars ($211.62) per week payable commencing June 
 
            26, 1986.  The entire amount thereof is accrued, past due 
 
            and owing and shall be paid to the claimant in a lump sum 
 
            together with interest computed pursuant to section 85.30 of 
 
            The Code from the date each weekly payment came due until 
 
            the date it is actually paid.
 
            
 
                 IT IS FURTHER ORDERED that, in file number 825100, the 
 
            Second Injury Fund of Iowa pay LaVern Wampler twenty-one 
 
            point five (21.5) weeks of compensation at the rate of two 
 
            hundred eleven and 62/100 dollars ($211.62) per week payable 
 
            in a lump sum on the date of this decision.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            file number 823404 as it is a duplication of file number 
 
            825100.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 
            file number 763544 as the employer's liability has 
 
            previously been fully satisfied.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the employer pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that the employer and the Second 
 
            Injury Fund of Iowa file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. David L. Sayre
 
            Attorney at Law
 
            233 Pine Street
 
            P.O. Box 535
 
            Cherokee, Iowa  51012
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319