BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN C. KIRKLAND,
 
                                                      File No. 768821
 
              Claimant,
 
                                                        S E C O N D
 
         vs.
 
                                                        I N J U R Y
 
         OMAR E. WHITLOW EXCAVATING,
 
                                                          F U N D
 
              Employer,
 
                                                      B E N E F I T S
 
         and
 
                                                      D E C I S I O N
 
         EMPLOYERS MUTUAL INSURANCE CO.,
 
                                                         F I L E D
 
              Insurance Carrier,
 
                                                        SEP 26 1989
 
         and
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              This is a proceeding filed by John C. Kirkland, claimant, 
 
         against the Second Injury Fund of Iowa, defendant, in order to 
 
         recover benefits from the Second Injury Fund.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner July 11, 1988 and was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of claimant and joint exhibits 1 through 12.
 
         
 
                                  ISSUES
 
         
 
              The essential issues presented for resolution are:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits for an industrial disability, if any; 
 
         and
 
         
 
              2.  The liability of the Second Injury Fund.
 
         
 
                               FACTS PRESENTED
 
         
 
              Claimant testified that at the age of three years he was 
 
         struck with infantile paralysis (polio) which temporarily 
 
         impaired his left leg and permanently impaired his left arm.  
 
         Claimant explained that he "cannot really do very much" with the 
 
         left arm asserting that the arm has no functional ability except 
 
         "for holding papers down or things like that" and that he uses 
 
                                                
 
                                                         
 
         his right arm and/or hand for everything.
 
         
 
              On June 7, 1984, claimant sustained an injury which arose 
 
         out of and in the course of his employment with Omar E. Whitlow 
 
         Excavating when, while climbing on a loader, he fell landing on 
 
         his right arm on the concrete.  Claimant entered into an 
 
         agreement for settlement which was approved by the industrial 
 
         commissioner's office on July 28, 1988 whereby it was agreed that 
 
         as a result of the injury of June 7, 1984, claimant "sustained an 
 
         82.5 percent permanent partial disability of the right arm."  
 
         Claimant was paid $51,430.50 in permanent partial disability 
 
         benefits for an overall entitlement of 206.25 weeks upon the 
 
         petition for full commutation also approved on July 28, 1988.
 
         
 
              Claimant stated that he has not worked since June 7, 1984 
 
         and has not really tried to return to work.  Claimant testified 
 
         that he has limited range of motion in the right arm, that while 
 
         he can lift approximately 50 pounds if "it's a straight pull" he 
 
         cannot hold the weight for any length of time, that he cannot do 
 
         any work which involves movement above the shoulder, that he 
 
         cannot paint, push a lawn mower, hunt, run a vacuum cleaner or 
 
         wash windows, and that he cannot tend bar.  Claimant stated there 
 
         is no work available for him with Whitlow Excavating and that 
 
         although an offer of employment was extended to him in 1985 to 
 
         work at a bar, claimant did not attempt to do the work since he 
 
         knew he could not fulfill the responsibilities of the job.  
 
         Claimant could not think of any jobs he is capable of doing and 
 
         is receiving 100 percent social security disability benefits.
 
         
 
              On cross-examination, claimant stated that his impairment 
 
         from polio never kept him from seeking, securing or retaining 
 
         employment, and that since his injury he sought work through Job 
 
         Service of Iowa but could not recall specifically when.  Claimant 
 
         testified he has no sales experience to seek a position in sales, 
 
         but he can use a hammer and skill saw on occasion, that he can 
 
         carry some groceries (down "like a pail"), that he can drive a 
 
         car if it has an automatic transmission and tilt steering wheel, 
 
         and that he might possibly be able to work at a service station 
 
         if someone would hire him.
 
         
 
              William Catalona, M.D., an orthopedic surgeon who treated 
 
         claimant for his injury, reported on August 13, 1985 that:
 
         
 
              You should first know that Mr. Kirkland has an Erb-Duchenne 
 
              obstetrical paralysis of his right entire upper extremity. 
 
              This paralysis involves the entire shoulder girdle, arm, 
 
              forearm and hand.
 
         
 
                   Mr. Kirkland has been able to work although with great 
 
              difficulty until now.  You will note on his medical record 
 
              that I did a repair of a complete rupture of the rotator 
 
              cuff of his right shoulder for him on 7/17/84.  Although Mr. 
 
              Kirkland has made a good recovery from this procedure, he is 
 
              severely restricted in the use of his right arm, both from 
 
              the obstetrical paralysis and now the severe degenerative 
 
                                                
 
                                                         
 
                   changes of the rotator cuff of his shoulder.
 
         
 
              One could argue that Mr. Kirkland is not totally disabled, 
 
         yet he has no education or training to do other than manual labor 
 
         so that in reality he is completely disabled.
 
         
 
              Regarding elaborating on his limitations in the work 
 
         setting, realize that he has a completely flail right upper 
 
         extremity and is able to use only his left hand which restricts 
 
         his capability to do much of any type of work even sedentary.
 
         
 
              Regarding his potential for rehabilitation, again, I see a 
 
         very limited area for rehabilitating Mr. Kirkland since he has a 
 
         very limited education and is able to use only his left upper 
 
         extremity.
 
         
 
              It might be well for you to send a rehabilitation 
 
         representative to talk with Mr. Kirkland and myself about any 
 
         plans for rehabilitating this man and perhaps to sit together to 
 
         further evaluate him for his capability to do any type of work.
 
         
 
         (Joint Exhibit 11, Deposition Exhibit 7)
 
         
 
         [Dr.  Catalona acknowledged he had gotten right sides mixed up. 
 
         See joint exhibit 11, page 50, lines 4-10]
 
         
 
              In June 1987, Dr. Catalona completed an estimated functional 
 
         capacities form showing that claimant could occasionally lift and 
 
         carry up to ten pounds but never more, could occasionally bend 
 
         but never squat, crawl, climb or reach above shoulder level, that 
 
         claimant could use his right hand only for repetitious actions of 
 
         simple grasping but could not use either hand for pushing, 
 
         pulling or fine manipulation, and that claimant was totally 
 
         restricted from activities involving unprotected heights, being 
 
         around moving machinery, exposure to marked changes in 
 
         temperature and humidity, and exposure to dust, fumes and gases.  
 
         Claimant was moderately restricted from driving automobile 
 
         equipment.  Dr. Catalona opined that claimant could not work and 
 
         was 100 percent disabled affixing impairment ratings of 25 
 
         percent to the upper right extremity and 100 percent to the upper 
 
         left extremity.  Dr. Catalona testified:
 
         
 
              [I]n my mind this man is 100 percent disabled because 
 
              whereas he can do light work with his right arm, I can't 
 
              visualize or I can't conceive of who would hire him or where 
 
              he could go to get any gainful employment.
 
         
 
              Q.  Okay.  I'm wondering for purposes of this deposition 
 
              would you agree to leave that determination to the 
 
              conclusions of a vocational rehabilitation expert?
 
         
 
              A.  Certainly. That's my opinion.
 
         
 
              Q.  And with all great respect, you don't have any training 
 
              in vocational rehabilitation, do you?
 
                                                
 
                                                         
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Excuse me?
 
         
 
              A.  Yes, sir.
 
         
 
              Q.  Yes, sir.  I deal with that every day.  I'm sorry. 
 
              Perhaps without degree or without recognized credentials but 
 
              nevertheless I'm involved with it on a daily basis.
 
         
 
         (Catalona Dep., Jt. Ex. 11, p. 53)
 
         
 
              G. Brian Paprocki, vocational consultant, conducted an 
 
         "industrial disability appraisal" and on August 24, 1987, after 
 
         receiving claimant's general, educational, employment and medical 
 
         histories, opined:
 
         
 
                   Based on the information noted above, it is my belief 
 
              that the claimant, John C. Kirkland, has sustained a 100% 
 
              industrial disability resultant from the 6/84 injury to the 
 
              right shoulder and arm.  This opinion is primarily based on 
 
              the following factors:  the claimant's inability to return 
 
              to his past work as a heavy truck driver; significant 
 
              activity restrictions secondary to injury of his right, and 
 
     
 
                               
 
                                                         
 
              only functional, arm; and advanced age.
 
         
 
                   Essentially, Mr. Kirkland's vocational situation is 
 
              this.  Although he retains residual functional capacity of 
 
              the right dominant arm sufficient to take care of personal 
 
              and daily living needs, an apparent lack of strength and 
 
              endurance makes competitive employment all but impossible. 
 
              Even assuming for the sake of argument, however, that quite 
 
              exertionally undemanding jobs do exist, such as a parking 
 
              lot cashier, for example, there is still the question of 
 
              whether he could actually secure such a position.  
 
              Considering the infinitesimal number of such jobs in total, 
 
              and the stiff competition for such work, the probability of 
 
              returning to work has to be nil.
 
         (Jt. Ex. 12)
 
 
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.64 provides, in part:
 
         
 
                   If an employee who has previously lost, or lost the use 
 
              of, one hand, one arm, one foot, one leg, or one eye, 
 
              becomes permanently disabled by a compensable injury which 
 
              has resulted in the loss of or loss of use of another such 
 
              member or organ, the employer shall be liable only for the 
 
              degree of disability which would have resulted from the 
 
              latter injury if there had been no pre-existing disability. 
 
               In addition to such compensation, and after the expiration 
 
              of the full period provided by law for the payments thereof 
 
              by the employer, the employee shall be paid out of the 
 
              "Second Injury Fund" created by this division the remainder 
 
              of such compensation as would be payable for the degree of 
 
              permanent disability involved after first deducting from 
 
              such remainder the compensable value of the previously lost 
 
              member or organ.
 
         
 
              There is no dispute that claimant sustained an injury on 
 
         June 7, 1984 which arose out of and in the course of his 
 
         employment with Omar Whitlow Excavating.  Claimant entered into 
 
         an agreement for settlement and full commutation which was 
 
         approved by the industrial commissioners' office finding that 
 
         claimant, as a result of the injury of June 7, 1984, had 
 
         sustained an 82.5 percent permanent partial disability of the 
 
         right arm.  The essential question for resolution in the 
 
         proceeding sub judice is to determine whether or not claimant is 
 
         entitled to benefits from the Second Injury Fund as provided by 
 
         Iowa Code section 85.64, cited above.
 
         
 
              Defendant Second Injury Fund argues that the Fund has no 
 
         liability for.several reasons.  First, that "claimant's polio is 
 
         not an 'injury' as required by the Second Injury Fund statute." 
 
         Reading Iowa Code section 85.64, no mention is made that the first 
 
         basis for claiming fund benefits be as a result of an injury.  
 
         That code section merely refers to a previous loss or loss of use 
 
         and does not limit the loss or loss of use to be as a result of an 
 
                                                
 
                                                         
 
         injury.  Further, the industrial commissioner specifically held in 
 
         Asay v. Industrial Engineering Equipment & Company, Thirty-Third 
 
         Biennial Report, Iowa Industrial Commissioner 224 (Appeal Decision 
 
         1977) that benefits from the Second Injury Fund are appropriately 
 
         granted when the prior loss was caused by polio.  See also Shank 
 
         v. Mercy Hospital Medical Center, File No. 719627 (Appeal Decision 
 
         filed August 28, 1989).
 
         
 
              The Second Injury Fund next argues that "although the first 
 
         injury resulted in substantial impairment to the left upper 
 
         extremity nevertheless, by claimant's own words this polio 
 
         impairment was not a handicap."  The undersigned is not aware of 
 
         any use or requirement of a "handicap" within the confines of the 
 
         Second Injury Compensation Act.  The Iowa Supreme Court in 
 
         Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978) has 
 
         held that "the source of the preexisting disability is of no 
 
         importance, but it must be permanent and tend to act as a 
 
         hindrance to employment."  Clearly, the source of claimant's 
 
         preexisting disability, the polio, was permanent.  A flail left 
 
         upper extremity would tend to act as a hindrance to employment. 
 
         Therefore, the second argument of defendant must fail.
 
         
 
              Third, defendant Second Injury Fund states that "claimant's 
 
         second injury was an injury to the body as a whole, specifically 
 
         the shoulder."  It is unnecessary to cite any precedent for the 
 
         proposition that an approved agreement for settlement has the 
 
         same force in effect as an award or decision of the industrial 
 
         commissioner's office.  An approved agreement for settlement and 
 
         full commutation is on file in this matter which conclusively 
 
         shows claimant's injury was to his right upper extremity.  That 
 
         conclusion is not subject to alteration as claimant has fully 
 
         commuted his total entitlement and the matter is not subject to 
 
         review.  Claimant's second injury is thus an injury to a 
 
         scheduled member and this contention, too, of defendant must 
 
         fail.
 
         
 
              Under Iowa Code sections 85.63 through 85.69, three 
 
         requirements must be met in order to establish fund liability: 
 
         First, claimant must have previously lost or lost the use of a 
 
         hand, an arm, a foot, a leg or an eye; second, through a 
 
         compensable injury, claimant must sustain another loss or loss of 
 
         use of another member; and, third, permanent disability must 
 
         exist as to both injuries.  Clearly, claimant has met all three 
 
         of these requirements.
 
         
 
              If the second injury is limited to a scheduled member, then 
 
         the employer's liability is limited to the schedule and the Fund 
 
         is responsible for the excess industrial disability of the 
 
         combined scheduled losses of the first and second injuries.  See 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983) and 
 
         Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989).
 
         
 
              Claimant's present condition involves the combined effects 
 
         of the first and second scheduled losses and it is concluded this 
 
         has resulted in an industrial disability to the body as a whole 
 
                                                
 
                                                         
 
         and the liability of the Second Injury Fund has been 
 
         established.
 
         
 
              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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively 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 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).
 
         
 
              Claimant is currently 61 years old with an eleventh grade 
 
                                                
 
                                                         
 
         education, having quit high school after three and one-half 
 
         years. Claimant did not present any testimony as to the type of 
 
         student he was although his education is so far now removed in 
 
         time that one wonders whether such information would even be 
 
         relevant. Claimant has work experience as a shipping clerk, farm 
 
         hand, a laborer for the Muscatine Park Commission and as the 
 
         commission's superintendent of parks, as a laborer for the 
 
         Muscatine Street Department (doing construction work, truck 
 
         driving, operating heavy equipment and running a jackhammer), as 
 
         a bartender where he also kept books, and as a truck 
 
         driver/equipment operator for Omar Whitlow.  Claimant has 
 
         restrictions on his employability imposed by Dr. Catalona which 
 
         would tend to exclude him from much, but clearly not all, of the 
 
         employment for which he is fitted by experience.  However, it 
 
         does not appear that all of the restrictions imposed by Dr. 
 
         Catalona are related to claimant's employment injury of June 7, 
 
         1984, nor do they appear to be related to claimant's flail upper 
 
         left extremity.
 
         
 
              Defendant argues that "claimant is not entitled to any 
 
         industrial disability simply because of his age and his lack of 
 
         motivation to find work."  Claimant was 56 years old at the time 
 
         of his injury with Whitlow Excavating and at 56 was in fairly 
 
         good health and, therefore, could have expected to continue 
 
         working for some time.  However, it must also be admitted that 
 
         his loss of future earnings from employment due to his disability 
 
         is not as severe as would be the case with a younger individual.  
 
         See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report, 
 
         Iowa Industrial Commissioner 34 (1979).  Age is, nevertheless, 
 
         but one element of industrial disability.  The undersigned cannot 
 
         concur with defendant that claimant has demonstrated a lack of 
 
         motivation.  On the contrary, claimant has worked consistently at 
 
         more than one job throughout his working life.  Although claimant 
 
                               
 
                                                         
 
         has not worked since his injury of June 7, 1984, the greater 
 
         weight of evidence supports the conclusion that this is better 
 
         attributed to claimant's medical condition rather than any 
 
         subjective desire on claimant's part not to work.
 
         
 
              Claimant appears to have some transferable skills.  However, 
 
         as a result of the effects of the polio to his upper left 
 
         extremity and the injury to his upper right extremity, claimant's 
 
         capacity to earn has clearly been hampered.  Considering then, 
 
         all the elements of industrial disability, it is found claimant 
 
         has sustained a permanent partial disability of 95 percent for 
 
         industrial purposes entitling him to 475 weeks of permanent 
 
         partial disability benefits.
 
         
 
              Pursuant to the court's decision in Neelans, 436 N.W.2d 355, 
 
         at 358, the Second Injury.Fund is responsible for the industrial 
 
         disability less the total of the scheduled injuries.  The Fund's 
 
         liability is therefore 18.75 weeks of benefits, the amount 
 
         remaining after deducting the scheduled losses from the 
 
         industrial disability (475 weeks less 250 weeks for the upper 
 
         left extremity (100 percent) less 206.25 weeks for the upper 
 
         right extremity (82.5 percent)].
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant suffered from infantile paralysis (polio) which 
 
         resulted in a flail left upper extremity.
 
         
 
              2.  Claimant's permanent impairment to the upper left 
 
         extremity is 100 percent.
 
         
 
              3.  Claimant sustained an injury on June 7, 1984, which 
 
         arose out of and in the course of his employment when, while 
 
         climbing on a loader he fell landing on his right arm on the 
 
         concrete.
 
         
 
              4.  Claimant entered into an agreement for settlement and 
 
         full commutation which was approved by the industrial 
 
         commissioner's office on July 28, 1988, whereby it was found 
 
         claimant sustained an 82.5 percent permanent partial disability 
 
         of the right arm as a result of the injury of June 7, 1984.
 
         
 
              5.  Claimant has sustained an industrial disability as a 
 
         result of the combined effects of the two scheduled losses.
 
         
 
              6.  Claimant is currently 61 years old with eleven and 
 
         one-half years of formal education.
 
         
 
              7.  Claimant has work experience as a shipping clerk, farm 
 
         hand, laborer, supervisor, bartender, and truck driver/equipment 
 
         operator.
 
         
 
                                                
 
                                                         
 
              8.  Claimant has restrictions on his employability which 
 
         would tend to exclude him from much, but not all, the employment 
 
         for which he is fitted by experience.
 
         
 
              9.  Claimant has some employment restrictions which do not 
 
         appear to be related to claimant's work injury or his flail upper 
 
         left extremity.
 
         
 
              10.  Claimant's capacity to earn has been hampered as a 
 
         result of the combined effects of the flail upper extremity and 
 
         the injury of June 7, 1984.
 
         
 
              11.  The present condition  of claimant as a result of the 
 
         combined permanent partial disability to the right and left upper 
 
         extremities results in an industrial disability of 95 percent to 
 
         the body as a whole.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Therefore,.based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  The compensable value of the permanent injury to the 
 
         left upper extremity is 250 weeks.
 
         
 
              2.  The compensable value of the permanent injury to the 
 
         right upper extremity is 206.25 weeks.
 
         
 
              3.  Claimant has established an overall industrial 
 
         disability as a resuit of the combined effects of both the flail 
 
         upper left extremity and the work injury of June 7, 1984 of 95 
 
         percent or 475 weeks of permanent partial disability benefits.
 
         
 
              4.  The obligation of the Second Injury Fund is 18.75 weeks 
 
         of permanent partial disability benefits.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the Second Injury Fund of Iowa pay to claimant eighteen 
 
         point seven five (18.75) weeks of permanent partial disability 
 
         benefits commencing December 14, 1985 at the stipulated rate of 
 
         two hundred forty-nine and 36/100 dollars ($249.36) per week.
 
         
 
              Benefits shall be paid in a lump sum as all benefits have 
 
         accrued.
 
         
 
              That the Second Injury Fund of Iowa pay costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of September, 1989.
 
                                    
 
         
 
                                                
 
                                                         
 
                                    
 
                                       
 
                                           DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. J. W. Conway
 
         Mr. Dennis D. Cohen
 
         Attorneys at Law
 
         210 Cedar Street
 
         P.O. Box 237
 
         Muscatine, IA  52761
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg
 
         Davenport, IA  52801
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims
 
         Hoover Building
 
         Des Moines, IA  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803.1
 
                      Filed December 5, 1990
 
                      Deborah A. Dubik
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN C. KIRKLAND,   :
 
                      :
 
                 Claimant, :
 
                      :        File No. 768821
 
            vs.       :
 
                      :
 
            OMAR E. WHITLOW EXCAVATING,   :          R E M A N D
 
                      :
 
                 Employer, :        D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL INSURANCE    :
 
            CO.,      :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Remand decision holding that claimant's second injury was 
 
            confined to the schedule and did not extend to the body as a 
 
            whole.
 
            
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        DONALD C. BRIGHT,
 
        
 
            Claimant,
 
                                                File No. 768883
 
        vs
 
        
 
        WILSON FOODS,                                            A R B I 
 
        T R A T I O N
 
        
 
            Employer,                           D E C I S I O N
 
            Self-Insured,
 
             Defendant.                             F I L E D
 
             
 
                                                   JUN 15 1989
 
             
 
                                         IOWA INDUSTRIAL COMMISSIONER
 
                                                
 
                                                
 
                                      INTRODUCTION
 
        
 
             This is a decision in arbitration brought by the claimant, 
 
             Donald C. Bright, against Wilson Foods, self-insured employer, to 
 
             recover benefits as a result of an injury sustained on or about 
 
             June 4, 1984. The record consists of the testimony of the 
 
             claimant, Shirley Bright, Ron Libolt, Mark Sullivan and Dwane 
 
             Aduddell; and claimant's exhibits 1 through 55.
 
        
 
                                      ISSUE
 
        
 
             The sole issue for resolution is the nature and extent of 
 
             claimant's permanent disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant testified he worked at manual labor jobs prior to 
 
             beginning work for defendant on August 30, 1966. Claimant worked 
 
             at various jobs within the meat packing plant and gradually 
 
             worked his way to the converting or boning job. Claimant stated 
 
             that this job involved performing several cuts on a ham averaging 
 
             17 to 22 pounds and taking the bone out. The claimant indicated 
 
             that he was doing 15 to 20 hams per hour and performed this job 
 
             eight to ten hours per day, five to six days per week, for three 
 
             to four years prior to his injury in June 1984. Claimant 
 
             explained the various other jobs he performed prior to this 
 
             particular department job. Claimant stated that these jobs 
 
             involved strenuous and difficult work, like shaving and dehairing 
 
             hogs. Claimant described the large number of hogs per hour that 
 
             had to be processed.
 
        
 
            Claimant testified that on or around June 4, 1984, he was 
 
        returning from a break and went to step on a work stand which 
 
        then slid out from under him. Claimant stated that at this 
 
        instance, he grabbed a steel ladder on the wall behind him and 
 
        caught his hand on the ladder causing his arm to be pulled away 
 
        from his body. Claimant stated that he immediately felt severe 
 
        pain in his right shoulder. Claimant said that he continued to 
 
        work on and off with this pain for about a month and then went to 
 

 
        
 
 
 
 
 
        Keith 0. Garner, M.D. On August 15, 1984, Oscar M. Jardon, M.D., 
 
        performed surgery on claimant's right shoulder. Claimant 
 
        indicated that he had postsurgery therapy but that the pain 
 
        continued in his right shoulder joint. Claimant testified that 
 
        he bid to work on the cut floor after this surgery because he 
 
        didn't believe he could handle the boning job. Claimant 
 
        indicated he took a 50 cent per hour wage cut at this new 
 
        position. Claimant worked two months after his first surgery 
 
        when he again incurred a rupture of the biceps tendon. Claimant 
 
        had surgery again in August 1985. Claimant stated that he was 
 
        released to go back to work around February 17, 1986 and worked 
 
        one day. Claimant said he worked one-half week in 1987, five 
 
        days in 1988, and one day in 1989. Claimant emphasized that the 
 
        reason he worked these few days was to maintain his family 
 
        insurance at defendant, which is worth $185 per month. Claimant 
 
        indicated that he had to work one day every six months to 
 
        maintain this insurance.
 
        
 
             Claimant acknowledged that he drew unemployment for six 
 
             months in 1986 as his department was closed. Claimant testified 
 
             that since his 1986 release to work, he had been a member of the 
 
             800 Gang-Service Board at defendant. It was explained that this 
 
             board is comprised of those who were laid off or not working for 
 
             defendant employer full time. Claimant stated that a worker on 
 
             the-service board reports to Wilson every Monday, and if there is 
 
             work to do a worker can take it or refuse it according to his or 
 
             her seniority. The claimant indicated that there were 15 to 20 
 
             persons ahead of him on the seniority board. Claimant also 
 
             discussed the system of bumping an employee who has more 
 
             seniority than he. The claimant said that he has looked for work 
 
             since the middle of 1986 and took a vocational rehabilitation 
 
             testing, which he tested okay in sales, persuasiveness and music. 
 
             Claimant testified he tried working in 1987 for his brother, who 
 
             is a carpenter, but that the work was too strenuous. Claimant 
 
             said that he considered a garbage route but knew it wouldn't 
 
             work. Claimant testified that he worked in his son's bar 
 
             approximately 20 hours per week since his injury but drew no 
 
             wages until 1989, at which time he worked 30 to 35 hours per week 
 
             depending on the circumstances. Claimant contends that Dr. 
 
             Jardon restricted him to no strenuous lifting or repetitive 
 
             lifting of heavy weight. Claimant said that Dr. Jardon referred 
 
             to claimant's bone lesion in his right arm but that it is not 
 
             causing any problems and is not a contributing factor in 
 
             claimant's condition. Claimant emphasized that it is not job 
 
             related. Claimant stated that he presently cannot push a 
 
             lawnmower more than a little bit, can't paint or rake. Claimant 
 
             acknowledged that due to the union contract and the employer's 
 
             bankruptcy reorganization, the wage that claimant was formerly 
 
             making, $10.69 per hour, was reduced to $6.50 per hour in 1983. 
 
             There was a company reorganization in 1985 e The claimant 
 
             indicated that when he reported for jobs since his injury, it was 
 
             claimant who took himself off the job. Claimant agreed that no 
 
             company official ever removed him from a job. Claimant felt 
 
             presently that he may not be able to work in the employer's 
 
             boning department. Claimant gave the impression that since he 
 
             went through two surgeries, he does not want another. Claimant 
 
             acknowledged that it is his choice he is not presently working at 
 
             defendant. Claimant agreed that every Tuesday through Thursday a 
 
             notice of bidding on jobs is posted at the company and that he 
 
             has never tried to bid. Claimant acknowledged that he knows the 
 
             job requirements after having worked at defendant for twenty 
 
             years. Claimant understood that his ruptured biceps tendon 
 
             problem was caused by the first injury and that at the time of 
 
             the first surgery, the tendon was frayed but this was not 
 
             discovered. Claimant testified that prior to his June 1984 
 
             injury, he had had no serious injuries or accidents.
 

 
        
 
 
 
 
 
        
 
             Oscar M. Jardon, M.D., an associate professor in 
 
             reconstructive surgery at the University of Nebraska Medical 
 
             Center, operated on the claimant on August 15, 1984, by 
 
             performing an "Operative repair of rotator cuff lesion, resection 
 
             of acromioclavicular ligament and anterior acromioplasty, right 
 
             shoulder." (Claimant's Exhibit 5) On April 17, 1985, Dr. Jardon 
 
             wrote:
 
        
 
                  Mr. Bright was seen today. He has lost his pain. He is 
 
                      doing really rather well. I believe he could return to work 
 
                      on Tuesday on the 23rd of this month at his full normal 
 
                      activity with the exception of one restriction, he has a 
 
                      weak abduction and as a result should not be required to do 
 
                      work above the shoulder level with weight for a while until 
 
                      he regains better strength. We will discontinue seeing the 
 
                      patient unless there are further complaints.
 
             
 
        (Cl. Ex. 11)
 
        
 
             On June 28, 1985, Dr. Jardon wrote: "He seems to have an 
 
             acute biceps tendonitis....If this continues to be a problem, I 
 
             don't know what we can do other than sew the tendon into the 
 
             bicipital groove so that it can't move and that will usually stop 
 
             the tendonitis." (Cl. Ex. 12) On August 20, 1985, Dr. Jardon 
 
             performed an operation involving the repair of the right biceps 
 
             rupture. On November 20, 1985, Dr. Jardon wrote:
 
        
 
                  Don was seen today following a biceps tendon rupture 
 
                      repair done on 8/19/85. The patient does have some 
 
                      limitation of range of motion to the right shoulder and has 
 
                      been doing physical therapy twice a week. There has been 
 
                      some improvement since the last visit but there is 
 
                      considerable residua. He has some pain with abduction above 
 
                      60x and the arm is weak in abduction which probably relates 
 
                      to his old rotator cuff tear. He has forward flexion to 
 
                      only 80x in this right shoulder. Extension to 60x, 
 
                      abduction to 80x with hard supination he can bring it to 
 
                      100x. Internal rotation of 45x, external rotation to 20x. 
 
                      Abduction to 80x represents partial permanent disability of 
 
                      8%, forward flexion to 80x represents 9% loss, and external 
 
                      rotation of 20x represents an additional 11%. He also has 
 
                      some noticeable weakness in both abduction in the biceps 
 
                      motion which would be an additional 5% giving a partial 
 
                      permanent disability of 33% of the upper extremity.
 
             
 
                  It is my opinion that the patient should continue with 
 
                      the physical therapy program to regain maximal utility of 
 
                      the extremity but he has had rather marked disabling injury 
 
                      both related to his employment which would preclude a full 
 
                      return to his previously, rather strenuous manual labor type 
 
                      work.
 
             
 
        (Cl. Ex. 16)
 
        
 
             On January 24, 1986, Dr. Jardon reiterated his 33 percent 
 
             impairment of the upper extremity rating of this claimant. On 
 
             May 8, 1986, Dr. Jardon wrote:
 
        
 
             He does have about a 33% loss of function of the upper 
 
             extremity which is static and unchanging . I do not believe 
 
             that he could return to the previous strenuous manual labor 
 
             that he had had but if an assurance could be given that 
 
             there was employment that did not require over-the-head work 
 
             or extremely heavy lifting that would be injurious the 
 
             shoulder, this could be entertained as a possibility. I 
 

 
        
 
 
 
 
 
             think that, in general, he could handle light repetitive 
 
             lifting in the range of 30 lbs. without any trouble and 
 
             perhaps as much as 50 lbs. The job should be the type that 
 
             does not further impinge on the shoulder with above head 
 
             work.
 
             
 
               ....
 
             
 
             ADDENDUM: As I understand it, there is a reorganization of 
 
             a previous plant and that there is a possibility of his 
 
             obtaining lighter work if he could return to some effort 
 
             between the present and the 15th. I would not have strong 
 
             objections to a short period of effort if he stayed within 
 
             the limitations of comfort.
 
             
 
        (Cl. Ex. 19)On August 12, 1986, Dr. Jardon wrote:
 
             
 
                  Bone island previously noted on X-ray-is totally 
 
                      unchanged. Patient continues to have some mild symptoms 
 
                      with his old tendon rupture but is actually doing pretty 
 
                      good with the job.
 
             
 
                  Recommendation would be to continue to allow him to work 
 
                      and to continue to build strength, although if he has an 
 
                      occasional flare up, he could back off a little on duty, but 
 
                      believe he will be able to handle it with no major problems.
 
             
 
             Dwane Aduddell, defendant employer's employment manager, 
 
             testified that a person's seniority begins at the time when they 
 
             are first employed and stays as long as they are an employee. 
 
             Aduddell explained that if a job opens at a particular department 
 
             at the plant, a worker can bid for the job based on plant 
 
             seniority. Aduddell testified that the kill floor and cut floor 
 
             jobs were eliminated and, therefore, there is no longer an 
 
             opportunity for a job in those departments. Aduddell explained 
 
             that notification of openings are posted at the plant gate 
 
             Tuesday midnight per the union contract and persons can come and 
 
             sign a bid. The person who has the most seniority will be hired 
 
             into that department. He indicated that one must first take what 
 
             is open in that department and as jobs open, seniority helps get 
 
             the job. Aduddell indicated that since the cut floor job was 
 
             eliminated at the time of claimant's second injury, claimant had 
 
             no "owned job" in the plant and that he has not sought an "owned 
 
             job" in the plant since he has not bid into any job. Aduddell 
 
             stated that the defendant's records show job postings in 
 
             mechanical, night sanitation, pork cure, sausage department, 
 
             loading dock, and pace boning. Aduddell indicated that the 
 
             claimant could do light sanitation, some jobs in the sausage 
 
             department, the loading department job, and pace boning, which 
 
             would be repetitive but not heavy. As to the mechanical, an 
 
             employee may have to lift 50 pounds but not repetitive. Aduddell 
 
             emphasized that the company does not call the workers. They must 
 
             come out on their own and bid on the job. If the claimant had 
 
             called him or had bid, he would tell the claimant about the job.
 
        
 
             Aduddell emphasized that the claimant did not leave because 
 
             of medical restrictions and that all of 1987 and 1988 the 
 
             claimant was able to work with the doctor's restrictions.
 
             
 
             Aduddell stated that in June and July 1988, the defendant 
 
             recalled all of the 800 Gang or Service Board group one month at 
 
             a time. He emphasized that the workers are not required to do 
 
             the work available if a person with lower seniority is there to 
 
             take it. If no one else is there to take the job, then a person 
 
             must take that job available regardless of seniority. The person 
 
             with the highest seniority has a choice of either taking the job 
 

 
        
 
 
 
 
 
             or refusing it assuming there are others with lower seniority 
 
             there who are able to take it. Aduddell indicated that a loading 
 
             dock job is a desirable job within the plant. This department is 
 
             comprised of four people who have high seniority, and he believes 
 
             it was two people short due to retirement. Aduddell stated the 
 
             claimant could have taken this job under plantwide posting. 
 
             Aduddell understood that one of those four individuals had an 
 
             October 1985 seniority and that one or two others were 1969 to 
 
             1970 seniority, which was a lower seniority than the claimant. 
 
             He emphasized that operating a fork lift recently became 
 
             available.
 
        
 
             Ron Libolt was called by claimant as a rebuttal witness and 
 
             testified that he was an employee at Wilson Foods for 
 
             approximately twenty-one years and was vice president of the 
 
             local union. He basically testified as to the inability of the 
 
             claimant to work at the six jobs previously referred to by Mr. 
 
             Aduddell because of claimant's medical restrictions, but 
 
             indicated claimant could possibly perform the mechanical job and 
 
             the loading dock or fork lift. Libolt indicated that in the fork 
 
             lift job, if a person hit a bump or a box fell off, one would 
 
             have to pick it up. Libolt acknowledged that he would not 
 
             disagree with defendant if defendant indicated there were three 
 
             postings in the last three years at the dock loading job.
 
        
 
            The defendant recalled Aduddell, who testified that during 
 
        the last three years there were vacancies in the loading dock 
 
        department and that there were plantwide postings to fill these 
 
        vacancies. Aduddell indicated there were at least two and he 
 
        believed another recent layoff in that department. Aduddell 
 
        emphasized that with the claimant's seniority, claimant would 
 
        have been able to bid and get the job. Aduddell indicated that 
 
        he did check the claimant's seniority and the claimant did, in 
 
        fact, have more seniority at the time of the posting of the 
 
        loading dock job than anyone else.
 
        
 
            Mark Sullivan testified that he was the safety director for 
 
        defendant and that he knows the job description for the loading 
 
        dock job. Sullivan stated that the loading dock job does not 
 
        require lifting of any boxes and involves only driving a fork 
 
        lift. He emphasized that there would have been no problem for 
 
        the claimant to perform this job with the medical restrictions he 
 
        had. Sullivan emphasized that as safety director, if there are 
 
        restrictions on the claimant, he could see to it that the 
 
        claimant would be able to do the job without any union trouble.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             As a claimant has an impairment to the body as a whole, an 
 
             industrial disability has been sustained. Industrial disability 
 
             was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
             593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
             that the legislature intended the term 'disability' to mean 
 
             'industrial disability' or loss of earning capacity and not a 
 
             mere 'functional disability' to be computed in the terms of 
 
             percentages of the total physical and mental ability of a normal 
 
             man."
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 1121-125 N.W.2d 251, 
 
             257 (1963).
 
        
 

 
        
 
 
 
 
 
            This 46-year-old claimant is a high school graduate from a 
 
        small high school. The claimant has worked the majority of his 
 
        adult life in the meat packing industry. It is obvious that the 
 
        jobs he has had with defendant have been strenuous and 
 
        repetitive. Claimant testified that since he was released to go 
 
        back to work from February 17, 1986, he has worked for 
 
        approximately eight days in 1986, three days in 1987, two days in 
 
        1988, and one day in 1989 at defendant. It appears that the only 
 
        reason claimant worked those days was to be able to maintain his 
 
        family insurance at defendant employer which was worth $180 per 
 
        month.
 
        
 
            The record shows that the claimant had an extended healing 
 
        period, which involved approximately 76 weeks of benefits in the 
 
        period of time before and subsequent to his two surgeries. All 
 
        the healing period benefits have been paid. The only issue in 
 
        this matter as stipulated by the parties is the extent of 
 
        claimant's permanent disability.
 
        
 
            There has been considerable testimony as to the nature of 
 
        the jobs, the seniority, and the applicability of certain rules 
 
        as to bidding for jobs at defendant employer. The greater weight 
 
        of evidence indicates that there were jobs at defendant employer 
 
        claimant could perform within his,medical restrictions of light 
 
        repetitive lifting in the range of 30 pounds without any trouble 
 
        and perhaps as much as 50 pounds, and that his work not require 
 
        over-the-head work or extremely heavy lifting. The claimant 
 
        obviously contends he was unable to do the job. The undersigned 
 
        deputy is concerned by the fact that the claimant took it upon 
 
        himself to choose not to attempt to try any of the jobs. The 
 
        evidence shows there has, in fact, been opportunities for this 
 
        claimant to bid on jobs, particularly one in the dock loading 
 
        department. This job would involve driving a fork lift and could 
 
        be performed by this claimant without any possibility of 
 
        violating his medical restriction and if, in fact, there was that 
 
        possibility, the employer indicated it would see to it that this 
 
        job would not in any way violate those restrictions. Claimant 
 
        made no effort to watch the postings at the plant. Mr. Aduddell, 
 
        defendant's manager, testified that with the claimant's 
 
        seniority, he would have been able to bid and get the job in the 
 
        loading dock department which would involve driving a fork lift.
 
        
 
             The undersigned believes that the claimant may be better 
 
             motivated when this litigation is disposed of. Claimant seems to 
 
             be fearful of performing manual work because he may have to have 
 
             another operation or possibly his tendon may fray and come loose 
 
             again like it had previously on his right arm. This fear is 
 
             unfounded and there is no medical evidence to support the fact 
 
             that this would happen again. If such speculation was 
 
             considered, then a person would be fearful of working at any 
 
             manual task or possibly be fearful of working at all in fear of 
 
             receiving some type of work-related injury. Claimant has done 
 
             some work for his son without pay and seems satisfied to have the 
 
             employer pay him benefits while he is fostering this fear of 
 
             injuring himself again. The undersigned finds that this claimant 
 
             lacks motivation and is presently incurring a reduction in 
 
             earnings by his own choice.
 
        
 
            Dr. Jardon opined that claimant has a 33 percent loss of 
 
        function of the upper right extremity which is static and 
 
        unchanging. This 33 percent converts to a 20 percent impairment 
 
        to the body as a whole. Defendant contends that this 20 percent 
 
        impairment is the extent of the claimant's industrial disability. 
 
        Functional disability is an element to be considered in 
 
        determining industrial disability, which is a reduction in 
 
        earning capacity. 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. Since 
 
        the claimant, by choice, has not attempted to return to defendant 
 
        employer to perform a work which the undersigned believes is 
 
        available, the claimant could have made a more energetic attempt 
 
        to look for employment elsewhere or seek retraining . No real 
 
        effort has been made. His lack of motivation is one element that 
 
        substantially effects the extent of his industrial disability.
 
        
 
            Since the defendant's refusal to give any sort of work to 
 
        claimant after he suffers his affliction may justify an award of 
 
        disability, the opposite should be true when the employer makes 
 
        an attempt to provide employment for the claimant and the 
 
        claimant through his own actions and lack of motivation either 
 
        refuses a job or makes no effort to attempt to become employed. 
 
        Claimant offered evidence to show the extent of the claimant's 
 
        reduction in earnings since his injuries, but the evidence shows 
 
        that from the time of the claimant's injury resulting in the 
 
        first surgery, through company financial problems and union 
 
        contract negotiations, the hourly wage of the claimant in a 
 
        particular job that he was performing at the time of his injury 
 
        went from $1-.69 per hour down to $6.50 per hour. The 
 
        undersigned finds that the claimant has a 33 percent impairment 
 
        to his right upper extremity which is the equivalent of a 20 
 
        percent impairment to his body as a whole. Taking into 
 
        consideration the employee's age, education, qualifications, 
 
        experience, and those items that effect the industrial disability 
 
        and, in particular, taking into consideration the claimant's lack 
 
        of motivation and the undersigned's belief that the claimant 
 
        could have had a job with defendant employer financially 
 
        equivalent to and less strenuous than the job he had at the time 
 
        of injury, it is found that the claimant has a 25 percent 
 
        industrial disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant has a 33 percent permanent impairment to his 
 
             right upper extremity as a result of his injury on or around June 
 
             4, 1984, which is the equivalent of a 20 percent permanent 
 
             impairment to his body as a whole.
 
        
 
            2. Claimant has been paid all healing period benefits to 
 
        which he is entitled.
 
        
 
            3. Claimant has had an opportunity to bid for and obtain a 
 
        dock-fork lift job with defendant, which job was financially 
 
        equivalent to and less strenuous than the job he had at the time 
 
        of his injury on or around June 4, 1984. This job would not have 
 
        violated claimant's medical restrictions.
 
        
 
            4. Claimant lacks motivation.
 
        
 
            5. Claimant's medical restrictions were no over-the-head 
 
        work or heavy lifting, lifting to be limited to light, repetitive 
 
        lifting in the range of 30 pounds without any trouble and perhaps 
 
        as much as 50 pounds.
 
        
 
            6. Claimant has a reduction in earning capacity.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             Claimant has a 25 percent industrial disability as a result 
 
             of his injury on or about June 4, 1984.
 
        
 
                                      ORDER
 
        
 

 
        
 
 
 
 
 
             THEREFORE, it is ordered:
 
        
 
            That claimant is entitled to one hundred twenty-five (125) 
 
        weeks of permanent partial disability benefits at the weekly rate 
 
        of two hundred twenty-eight and 37/100 dollars ($228.37) 
 
        beginning February 17, 1986.
 
        
 
            That claimant is entitled to no additional healing period 
 
        benefits as same has already been paid as agreed to by the 
 
        parties.
 
        
 
            That defendant shall pay accrued weekly benefits in a lump 
 
        sum and shall receive credit against the award for the one 
 
        hundred (100) weeks of permanent partial disability benefits 
 
        previously paid.
 
                  
 
             That defendant shall pay interest on the benefits awarded 
 
             herein as set forth in Iowa Code section 85.30.
 
                  
 
             That defendant shall pay the costs of this action pursuant 
 
             to Division of Industrial Services Rule 343-4.33.
 
             
 
             That defendant shall file an activity report upon the 
 
             payment of this award as required by this agency pursuant to 
 
             Division of Industrial Service Rule 343-3.1.
 
                  
 
             Signed and filed this 15th day of June, 1989.
 
                  
 
                  
 
                  
 
                  
 
                  
 
                                    BERNARD J. O'MALLEY
 
                                    DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
                  
 
        Mr. Steve Hamilton
 
        Attorney at Law
 
        606 Ontario St
 
        P.O. Box 188
 
        Storm Lake, IA 50588
 
        
 
        Mr. David L. Sayre
 
        Attorney at Law
 
        223 Pine St
 
        P.O. Box 535
 
        Cherokee, IA 51012
 
        
 
        
 
 
        
 
 
 
 
 
        
 
                                       51803
 
                                       Filed June 15, 1989
 
                                       Bernard J. O'Malley
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DONALD C. BRIGHT,
 
        
 
            Claimant,
 
                                                File No. 768883
 
        vs.
 
        
 
        WILSON FOODS,                       A R B I T R A T I O N
 
        
 
            Employer,                         D E C I S I O N
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        51803
 
        
 
             Claimant sustained a 20% permanent impairment to his body as 
 
             a whole as a result of an injury to his right upper extremity.
 
        
 
            Claimant's lack of motivation in seeking and obtaining 
 
        available job with employer within his medical restrictions 
 
        affected the extent of claimant's industrial disability.
 
        
 
            Claimant awarded 25% industrial disability.
 
        
 
        
 
 
            
 
 
 
                        
 
 
 
                        
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT F. DUNCAN,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 768954
 
         
 
         THORP ELECTRIC,                           A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
                                                         F I L E D
 
         UNION INSURANCE COMPANY,
 
                                                        MAY 17 1989
 
              Insurance Carrier,
 
              Defendants.                          INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert F. 
 
         Duncan against Thorp Electric, his former employer, and Union 
 
         Insurance Company.  The case was heard and fully submitted at 
 
         Sioux City, Iowa on September 9, 1988.
 
              
 
              The record in this proceeding consists of testimony from 
 
         Robert F. Duncan, Gary Heer and Steven Hubert.  The record also 
 
         contains joint exhibits 1 through 17.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination are 
 
         whether claimant sustained an injury which arose out of and in 
 
         the course of employment; and, whether the alleged injury caused 
 
         any permanent disability and, if so, the nature and extent of 
 
         disability.  The other issue for determination is claimant's 
 
         entitlement to medical expenses under section 85.27.  The final 
 
         issue is determination of the employer's entitlement to credit 
 
         under section 85.38(2).  It was stipulated that in the event of 
 
         an award, the claimant's entitlement to temporary total 
 
         disability or healing period commences June 3, 1983 and runs 
 
         through August 23, 1983 and that the correct rate of compensation 
 
         is $258.30 per week.  It was stipulated that any permanent 
 
         disability is to be evaluated industrially as a disability to the 
 
         body as a who]e and that any compensation awarded for permanent 
 
         partial disability would be payable commencing August 24, 1983.  
 
         The only issue with regard to section 85.27 benefits is dependent 
 
         upon the employer's liability for claimant's cardiac condition.
 
         
 
                                                
 
                                                         
 
                              SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Robert F. Duncan is a 59-year-old married man whose formal 
 
         education is limited to graduation from high school.  Claimant 
 
         cut meat in a grocery store for three years and worked in a farm 
 
         implement dealership with his father for approximately four 
 
         years. Claimant obtained employment at Thorp Electric where he 
 
         worked for approximately one year, then returned to work with his 
 
         father at the implement dealership for an additional year, 
 
         following which claimant returned to Thorp Electric where he 
 
         remained until 1984.
 
         
 
              Thorp Electric was owned by Leroy Thorp, claimant's 
 
         father-in-law.  Claimant's wife would frequently phone or 
 
         personally visit him at the business shop during much of the term 
 
         of claimant's employment.
 
         
 
              By 1978, claimant was foreman of the part of the business 
 
         which repaired starters, alternators and generators for heavy 
 
         equipment.  The work involved lifting, pulling, squatting, 
 
         standing and lying on one's back in order to perform the work. 
 
         The work involved removal and reinstallation of starters and 
 
         generators from equipment as well as actual repair of the starter 
 
         or generator.
 
         
 
              In 1978, Leroy Thorp sold the business to Chuck Beam.  The 
 
         business had three divisions and claimant was foreman of the 
 
         heavy truck division with two employees working under him.  In 
 
         1981, the heavy truck division moved to a new location and Gary 
 
         Heer became claimant's boss.  Claimant testified that, prior to 
 
         1981, he had no particular problems with his employment, but that 
 
         he developed problems with Heer after 1981 which caused stress.  
 
         Claimant stated that Heer wanted more work to be produced and 
 
         that claimant and Heer disliked each other.  Claimant stated that 
 
         immediately prior to June 3, 1983, Gary Heer had never reduced 
 
         his pay, had never told him that his job was in jeopardy, had 
 
         never told him to train someone else to perform his job, nor had 
 
         ever required him to perform more work than any of the other 
 
         employees.
 
         
 
              Claimant testified that in the time span of 1981 to 1983, he 
 
         had no stress or problems in his home.  Claimant had smoked 
 
         regularly during the time span of 1978 through 1983.
 
         
 
              Claimant has a history of heart problems going back at least 
 
         as far as 1971 when he was diagnosed as having hypertensive heart 
 
         disease.  Claimant has experienced angina since 1978 for which he 
 
         began using nitroglycerin pills.  Claimant's cardiac condition 
 
                                                
 
                                                         
 
         was treated by George G. Spellman, Sr., M.D., a specialist in 
 
         internal medicine.  Claimant consulted Dr. Spellman in March and 
 
         April of 1983 with complaints that he was tired all the time and 
 
         that he continued to have chest pain with exertion (exhibit 10, 
 
         page 10).
 
         
 
              Claimant testified that, on June 3, 1983, he reported to 
 
         work at the normal time.  Among the work to be done that day 
 
         included a service call to remove a defective starter from a 
 
         Payloader. Claimant testified that in order to remove the 
 
         starter, it was necessary to take wires off the solenoid and then 
 
         remove the three large bolts which held the starter housing.  
 
         Claimant stated that it was necessary to stand and bend in order 
 
         to perform the task. He was able to loosen two of the three 
 
         bolts, but was not able to remove the third because it was too 
 
         tight.  Claimant stated that he worked on it for 15 or 20 minutes 
 
         using all the strength he had, but was still unsuccessful.  
 
         Claimant described the building where he was working as very hot, 
 
         humid and poorly ventilated. Claimant testified that his chest 
 
         began hurting and that he had pain in his left side and down his 
 
         left arm.  Claimant related that he had never previously been 
 
         unable to remove a starter from a piece of equipment.  Claimant 
 
         testified that he was feeling badly, returned to the shop and 
 
         obtained the assistance of another employee who was then able to 
 
         remove the starter.
 
         
 
              Claimant testified that it was noon when they arrived back 
 
         at the shop and that he then went home for lunch but did not eat. 
 
         Claimant stated that he still had chest pain as well as pain in 
 
         his arm, but returned to work.  Claimant stated that, as he 
 
         walked in the door, he asked Gary Heer to help and that Heer took 
 
         him to the hospital.  Claimant remained in the hospital 21 days 
 
         and was off work until August 23, 1983.
 
         
 
              Claimant worked for a few months without performing any 
 
         heavy exertion.  In January 1984, he underwent cardiac bypass 
 
         surgery. In June 1984, he returned to work for a business known 
 
         as Interstate Auto, a business which competes with Thorp Electric 
 
         but is smaller in size.
 
         
 
              At Interstate Auto, claimant has managerial duties as well 
 
         as performing hands-on work with equipment and the electrical 
 
         components.  The office at Interstate Auto is air conditioned, 
 
         but the shop is not.  During the summer of 1988, claimant 
 
         performed mechanical work in the shop.  He now works 40 hours per 
 
         week and could probably work more if he desired.
 
         
 
              Claimant testified that, when he last worked at Thorp, he 
 
         earned $425.00 per week plus incentive.  At Interstate Auto, 
 
         claimant earned $200.00 per week plus commission.  Claimant 
 
         recently purchased a ten percent interest in Interstate Auto and 
 
         now averages approximately $340.00 per week.
 
         
 
              Claimant acknowledged receiving $200.00 per week from his 
 
         employer as a disability income benefit.  Gary Heer stated that 
 
                                                
 
                                                         
 
         the company disability income program was paid for entirely by 
 
         the employee and that the company paid for none of it.  Heer also 
 
         stated that the plan pays only for nonwork-related disabilities.
 
         
 
              Steven Hubert testified at hearing that he had worked with 
 
         claimant for approximately 11 years, until 1981 when claimant 
 
         moved to a different location.  Hubert stated that claimant 
 
         sometimes appeared to be upset or anxious after speaking with his 
 
         wife or meeting with his wife.  Hubert stated that claimant did 
 
         not appear to be any more upset after having meetings with 
 
         management than he had been after talking with his wife.  Edward 
 
         Bergenske testified by way of deposition, exhibit 9, that 
 
         claimant had expressed fear that his new employers were going to 
 
         get rid of him and that he found the job to be stressful (exhibit 
 
         9, pages 14, 16 and 19).
 
         
 
              The record in this case contains a good example of the 
 
         dispute among members of the medical profession with regard to 
 
         whether or not emotional stress and physical exertion can 
 
         precipitate or bring on a heart attack.  Claimant's treating 
 
         physician, Dr. Spellman, expressed the opinion that the stress 
 
         from claimant's employment situation that had existed since 1981 
 
         and the physical exertion that occurred on June 3, 1983 
 
         precipitated the heart attack which claimant experienced (exhibit 
 
         1, page 2; exhibit 2, page 1; exhibit 10, pages 12, 30-33 and 
 
 
 
 
 
                              
 
                                                         
 
         40-43).
 
         
 
              Donald D. Brown, M.D., a well-qualified specialist in 
 
         cardiology, testified that stress has nothing to do with coronary 
 
         artery disease and that physical activity is not associated with 
 
         a myocardial infarction.  He stated that unequivocally claimant's 
 
         activities of June 3, 1983 had nothing to do with precipitating 
 
         claimant's myocardial infarction and did not aggravate the 
 
         infarction.  He stated that chronic stress had nothing to do with 
 
         the infarction (exhibit 17, pages 8-11, 29-31, 39 and 40).  Dr. 
 
         Brown stated that claimant's myocardial infarction would have 
 
         occurred regardless of where claimant was or what he was doing. 
 
         Dr. Brown noted that claimant's medical history included two or 
 
         three days of increasing discomfort in his chest immediately 
 
         prior to June 3, 1983.  Dr. Brown stated that such was a result 
 
         of a change in coronary circulation which had resulted from the 
 
         rupture of plaque in claimant's coronary arteries and that the 
 
         rupture of plaque was the factor that was responsible for 
 
         changing what had previously been claimant's stable angina into 
 
         unstable angina and also for precipitating the myocardial 
 
         infarction.  Dr. Brown stated that claimant's work activity of 
 
         June 3, 1983 was not a precipitating cause for the rupture or for 
 
         precipitating claimant's unstable angina (exhibit 17, page 26).
 
         
 
              Dr. Spellman and Dr. Brown also disagree regarding whether 
 
         claimant had one heart attack or more than one and the time or 
 
         times of occurrence.  Dr. Spellman felt that claimant had but one 
 
         coronary event which had started while claimant was attempting to 
 
         remove the starter and continued through June 6, 1983 (exhibit 
 
         10, pages 21 and 22).  Dr. Brown felt that claimant had not yet 
 
         infarcted at the time he was admitted to the hospital, but that 
 
         he had a minor infarction on June 4 and one of greater magnitude 
 
         on June 6, 1983 (exhibit 17, pages 6-8).
 
         
 
              The medical history which claimant gave at the time of his 
 
         hospitalization was that he had been doing well until the past 
 
         two or three days when he began having increased chest pain 
 
         (exhibit 5, pages 4 and 9; exhibit 10, page 17).
 
         
 
              Following recuperation, claimant returned to work at Thorp 
 
         Electric.  He continued to have symptoms and in January, 1984, 
 
         underwent coronary bypass surgery.  Since the surgery, his angina 
 
         symptoms have been relieved.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on or about June 3, 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
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
                                                
 
                                                         
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The "arising out of" requirement is satisfied by showing a 
 
         causal relationship between the employment and the injury. 
 
         Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986).  Aggravation 
 
         of a preexisting condition is one form of compensable injury.  
 
         While a claimant is not entitled to compensation for the results 
 
         of a preexisting injury or disease, the mere existence at the 
 
         time of a subsequent injury is not a defense.  Rose v. John Deere 
 
         Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 81Z (1962).  The 
 
         law is well settled that for a cause to be proximate, it need not 
 
         be the only cause.  It need only be a substantial factor in 
 
         bringing about the result.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980).
 
         
 
              Robert F. Duncan clearly had a previously weakened or 
 
         diseased heart.  The law is well settled that in those cases 
 
         where there is some personal causal contribution, the employment 
 
         contribution must take the form of an exertion greater than that 
 
         of nonemployment life in order for there to be a workers' 
 
         compensation recovery.  The comparison is not with the individual 
 
         employee's usual exertion in his employment, but rather with the 
 
         exertions of normal nonemployment life of the employee or of any 
 
         other person.  Briarcliff College v. Campolo, 360 N.W.2d 91, 95 
 
         (Iowa 1984); Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 
 
         1974).  The two cited cases provide that there are two methods of 
 
         establishing compensability.  The first is where the work 
 
         ordinarily requires heavy exertion which aggravates or 
 
         accelerates the preexisting condition.  The second is when an 
 
         instance of unusually strenuous employment exertion aggravates or 
 
         accelerates the preexisting condition.  The key, however, is that 
 
         the employment exertion must, in either case, be greater than the 
 
         exertions of normal nonemployment life.
 
         
 
              The standard which has been established by the Iowa Supreme 
 
         Court carries with it judicial approval of the medical theory of 
 
         causation offered by Dr. Spellman.  The practical side of the 
 
         matter is that the scenario of a heart attack being preceded by 
 
         extreme stress or exertion is such a common event that expert 
 
         medical testimony to the contrary is inconsistent with common 
 
         sense and the lifetime experiences of the population in general. 
 
         A close reading of the opinions of physicians who dispute a 
 
         causal connection between exertion and a heart attack often shows 
 
         that the opinion is not one which specifically states that 
 
         scientific evidence has documented that exertion does not 
 
         precipitate a heart attack.  To the contrary, the testimony when 
 
         closely scrutinized usually states that medical science has not 
 
         proved that exertion does precipitate the heart attack.  Such is 
 
         the situation in this case (exhibit 17, page 28, lines 10-16 and 
 
         page 29, lines 18-21). While the precise physiological changes 
 
         which produce the heart attack might not be scientifically 
 
                                                
 
                                                         
 
         proven, the common occurrence of exertion followed by unstable 
 
         angina leading into an infarction is sufficiently common to 
 
         determine that it is probable that some causal connection 
 
         exists.
 
         
 
              As agreed by both physicians, a myocardial infarction can 
 
         occur without stress or exertion.  It can be simply the 
 
         progression of coronary artery disease.  Certainly, Robert Duncan 
 
         was under stress in his employment, although it does not appear 
 
         that the emotional stress was greater than the ordinary stresses 
 
         of employment which all employees must endure.  A requirement to 
 
         operate profitably and meet production quotas is common. 
 
         Desgranges v. Department of Human Services, file number 760747 
 
         (App. Decn., August 19, 1988).  The exertion of attempting for 
 
         approximately 30 minutes to loosen a tight bolt is an incident of 
 
         extreme exertion.  When a person does so, the person is exerting 
 
         himself 100% and mustering all of his physical strength to 
 
         accomplish the task.  Such an activity is clearly an exertion 
 
         which is greater than the exertions of normal nonemployment 
 
         life.
 
         
 
              In this analysis, it is recognized that the standard of 
 
         exertions of normal nonemployment life is quite vague and 
 
         subjective.  The normal activities of nonemployment life vary 
 
         greatly among individuals.  The standard for comparison is not 
 
         the extreme of either the most sedentary or the most physically 
 
         active.  It is not the individual who does nothing more strenuous 
 
         that walk short distances at a leisurely pace.  By the same 
 
         token, it is not an individual who participates in marathons.  
 
         Normal nonemployment life exertions include things such as mowing 
 
         the lawn, gardening, carrying groceries, climbing stairs, 
 
         swimming or even playing softball.  An important factor of 
 
         nonemployment exertions is that the individual can perform them 
 
         at a rate or pace with which the individual is comfortable.  
 
         There is no need to meet quotas or perform at any level of 
 
         productivity which is sufficient to be profitable for an 
 
         employer.  It does not include lengthy periods of all-out effort.  
 
         Clearly, Duncan's exertion on the morning of June 3, 1983 
 
         exceeded the exertions of normal nonemployment life.
 
         
 
              Claimant would have likely prevailed in this case except for 
 
         one fact in the evidence.  Claimant's symptoms which common 
 
         experience shows frequently precede a heart attack were already 
 
         manifested and ongoing prior to the morning of June 3, 1983. 
 
         Claimant related increased chest pain and angina for two or three 
 
         days prior to June 3, 1983, the day he was hospitalized.  The 
 
         testimony from Dr. Spellman which is to the effect that the 
 
         myocardial infarction was actually one progressive incident is 
 
         accepted as being correct (exhibit 10, pages 21 and 22).  The 
 
         evidence from Dr. Brown which is to the effect that the change in 
 
         claimant's symptoms which had occurred two or three days prior to 
 
         June 3, 1983 was a result in a change in coronary circulation and 
 
         that the unstable angina and myocardial infarction resulted from 
 
         that change in coronary circulation is likewise accepted as being 
 
         correct (exhibit 17, pages 25-27).  It is therefore determined 
 
                                                
 
                                                         
 
         that the sequence of events which led to claimant's heart attack 
 
         had been set into motion two or three days prior to June 3, 1983. 
 
         The exertion performed on June 3, 1983 may have slightly 
 
         accelerated the process by a few hours, but the evidence shows 
 
         that the process of changing what had previously been stable 
 
         angina into unstable angina and leading into the actual 
 
         myocardial infarction was underway prior to the time that 
 
         claimant attempted to remove the starter from the Payloader.  
 
         Accordingly, it is therefore determined that claimant has failed 
 
         to prove, by a preponderance of the evidence that the heart 
 
         attack he sustained on or about June 3, 1983 arose out of and in 
 
         the course of his employment with Thorp Electric.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On June 3, 1983, Robert F. Duncan was a resident of the 
 
         state of Iowa employed by Thorp Electric in the state of Iowa.
 
         
 
              2.  Robert F. Duncan was a victim of coronary artery disease 
 
         which had manifested itself several years prior to 1983.
 
         
 
              3.  As a result of the coronary artery disease, Duncan had 
 
         experienced angina on occasion, which angina was associated with 
 
         physical exertion.
 
         
 
              4.  Claimant had experienced an increase in his angina 
 
         symptoms in early 1983 for which he sought medical treatment from 
 
         Dr. Spellman.
 
         
 
              5.  Claimant had experienced a further increase in his 
 
         angina symptoms at a time commencing two or three days prior to 
 
         June 3, 1983.
 
                              
 
                                                         
 
              6.  The levels of emotional stress to which claimant was 
 
         subjected in his employment are not shown by the evidence to have 
 
         been greater than the normal stress experienced by all employees 
 
         in their employments.
 
         
 
              7.  The physical exertion which Robert Duncan performed in 
 
         attempting to loosen the starter bolt from a piece of equipment 
 
         on the morning of June 3, 1983 was a physical exertion greater 
 
         than the exertions of normal nonemployment life.
 
         
 
              8.  The evidence fails to demonstrate that the exertions 
 
         performed on the morning of June 3, 1983 had any appreciable 
 
         effect upon claimant's coronary condition because the symptoms of 
 
         increasing angina had begun two or three days prior to June 3, 
 
         1983.
 
         
 
              9.  The evidence shows it to be more likely than not that 
 
         the myocardial infarction which claimant suffered on or about 
 
         June 3, 1983 occurred as a result of the normal progression of 
 
         his coronary artery disease rather than as a result of any 
 
         emotional stress of physical exertion connected with his 
 
         employment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that the heart attack he sustained on or about June 3, 
 
         1983 was an injury which arose out of his employment.
 
         
 
              3.  Claimant has failed to prove, by a preponderance of the 
 
         evidence, that the heart attack was proximately caused by any 
 
         emotional stress or physical exertion connected with his 
 
         employment.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant.
 
         
 
              Signed and filed this 17th day of May, 1989
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
                                                
 
                                                         
 
         
 
         Mr. Robert L. Sikma
 
         Attorney at Law
 
         402 Benson Building
 
         Sioux City, Iowa  51101
 
         
 
         Mr. James M. Cosgrove
 
         Attorney at Law
 
         1109 Badgerow Building
 
         P.O. Box 1828
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy National Bank Building
 
         Sioux City, Iowa  51101