1803
 
                                            Filed February 14, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BERNARD C. HUGHES,
 
         
 
              Claimant,                           File No. 772646
 
         
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         EATON CORPORATION,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803
 
         
 
              Claimant injured his back at work, underwent surgery and was 
 
         able to return to work as employer provided work well within his 
 
         medical restrictions.  Claimant found to have an industrial 
 
         disability of 15%.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
                              
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         STANLEY LUBBERT,    
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File No. 772835
 
         MARVIN GRONWOLDT, SR.,   
 
                                               A P P E A L
 
              Employer, 
 
                                             D E C I S I O N
 
         and       
 
                   
 
         IMT INSURANCE, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 26, 1990 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of June, 1992.
 
         
 
                                 
 
                                 ________________________________
 
                                        BYRON K. ORTON
 
                                   INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. R. Ronald Pogge
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand Ave
 
         Des Moines  IA  50312
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         801 Grand Ave
 
         Suite 3700
 
         Des Moines  IA  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed June 10, 1992
 
                                               BYRON K. ORTON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STANLEY LUBBERT,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 772835
 
            MARVIN GRONWOLDT, SR.,   
 
                                               A P P E A L
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            IMT INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            26, 1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STANLEY LUBBERT,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                               File No. 772835 
 
         MARVIN GRONWOLDT, SR.,
 
                                               A R B I T R A T I 0 N 
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         IMT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by claimant 
 
         Stanley Lubbert against defendant employer Marvin Gronwoldt, Sr., 
 
         and defendant insurance carrier IMT Insurance Company to recover 
 
         benefits under the Iowa Workers' Compensation Act as the result 
 
         of an injury sustained on August 8, 1984.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         in Mason City, Iowa, on October 18, 1988.  The case was 
 
         considered fully submitted at the close of hearing, although the 
 
         parties subsequently submitted briefs.
 
         
 
              The record in this case consists of claimant's exhibits 1 
 
         through 2, defendants' exhibits 3 through 7, and the testimony of 
 
         the following witnesses: Claimant, Arliss Bode, Donna Burkhardt, 
 
         Leona Lubbert and Barbara Chaldy.  Claimant's deposition is also 
 
         in evidence, as is the deposition testimony of Timothy Mead, M.D.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted by the parties 
 
         and approved at hearing, the parties have stipulated: That an 
 
         employment relationship existed between claimant and employer at 
 
         the time of the work injury; that claimant sustained an injury on 
 
         August 8, 1984, arising out of and in the course of that 
 
         employment; that the work injury caused a period of temporary 
 
         disability; that if
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 2
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         claimant is found to have suffered permanent disability, it is an 
 
         industrial disability to the body as a whole; that the 
 
         appropriate rate of weekly compensation is $102.09; that 
 
         affirmative defenses are waived; that all requested medical 
 
         benefits have been or will be paid by defendants; that defendants 
 
         paid claimant 132 3/7 weeks of compensation at the stipulated 
 
         rate prior to hearing.
 
         
 
              Issues presented for determination include: Whether the 
 
         work injury caused permanent disability; the extent of claimant's 
 
         entitlement to compensation for temporary and permanent 
 
         disability and the commencement date of the latter; taxation of 
 
         costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified that he was 40 years of age at the time 
 
         of hearing and has resided in the city of Riceville, Iowa, his 
 
         entire life.
 
         
 
              Claimant testified that prior to his employment with 
 
         defendant, he had no physical limitations, although he was 
 
         involved in a serious automobile accident in 1972.  Claimant was 
 
         comatose for an extended time as a result of that injury, but 
 
         indicated that he suffered no permanent impairment.
 
         
 
              Claimant's educational background prior to the injury 
 
         includes graduation from high school and two years of education 
 
         at Morningside College.  Claimant took courses directed toward 
 
         his goal of becoming a nurse, but left school due to a family 
 
         emergency.
 
         
 
              Claimant's work history primarily involved working as a 
 
         welder for Moser Doors and Eldorado Doors from 1969 until August, 
 
         1983.  This employment involved heavy lifting and paid up to 
 
         $5.50 per hour.  Eventually, Eldorado Doors went out of business, 
 
         leaving claimant unemployed.
 
         
 
              Claimant began his work as a farmhand (he also had previous 
 
         experience in this occupation) with defendant on September 1, 
 
         1983.  His duties included operating a tractor, caring for a 
 
         cattle operation, fencing, combining, and filling silos.  
 
         Claimant characterized his work as heavy and involving a great 
 
         deal of stooping.  However, claimant indicated further that he 
 
         had no physical problems performing that work, even though he 
 
         worked up to 55 or 60 hours per week (but earning only $2.50 per 
 
         hour at the time of his injury).  The work injury occurred when 
 
         he was installing a water line with a backhoe.  While in the 
 
         trench, he was caught in a cave-in and covered with dirt up
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         to the bottom of the rib cage.  Claimant was initially seen at a 
 
         local hospital, but immediately transferred to the Mayo Clinic in 
 
         Rochester, Minnesota.
 
         
 
              Claimant suffered severe and painful injuries.  He 
 
         primarily suffered from a severed urethra tube and a fractured 
 
         pelvis.  Claimant underwent immediate surgery on his urethra and 
 
         was then placed in traction for approximately 30 days for his 
 
         fractured pelvis.  He testified that he remained at the Mayo 
 
         Clinic for 7-10 days afterwards, but even after returning home 
 
         suffered from pain in the pelvis and lower back.  Although he 
 
         continued suffering from a clogged urinary tract, he undertook a 
 
         program of self-catheterization and now suffers no urinary 
 
         problems.
 
         
 
              Claimant also suffered sexual dysfunction following his 
 
         injury and had a penile prosthetic device implanted in April, 
 
         1985.  The device eventually malfunctioned and was replaced in 
 
         February, 1988, after which claimant was temporarily disabled for 
 
         an additional six weeks' recovery time.
 
         
 
              Claimant also indicated that he was released to return to 
 
         work by Thomas C. Shives, M.D., on April 1, 1985.  However, he 
 
         was not discharged from the hospital following his penile implant 
 
         and scrotum surgery until May 2, 1985.
 
         
 
              Beginning in April of May, 1986, claimant unsuccessfully 
 
         sought work within a 50-mile radius.  After substantial 
 
         vocational rehabilitation testing, he took a geriatric aide 
 
         course at North Iowa Area Community College and was eventually 
 
         hired as a nurse's aide on October 29, 1986.  Claimant worked for 
 
         this employer, Maple Manor, only two weeks before quitting in a 
 
         personality dispute.  Claimant was subsequently hired as a 
 
         nurse's aide or orderly with Faith Lutheran Home in Osage, Iowa.  
 
         He began employment on December 30, 1986, and remained so 
 
         employed as of the date of hearing.  Claimant clearly enjoys this 
 
         work and is a success at his job.  This is a full-time position 
 
         which now pays $4.45 per hour, although the maximum is $5.50.  
 
         Claimant agreed that he is able to perform all requirements 
 
         of-this job and expects to continue in that employment.  He has 
 
         applied for higher paying jobs, such as a position with United 
 
         Parcel Service, but has not been hired.  Claimant agreed that he 
 
         enjoys this work more than he enjoyed farming or welding.
 
         
 
              Of course, this employment is closely related to the work 
 
         claimant originally intended to do when he began college.  
 
         Claimant is currently volunteering as an emergency
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 4
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         medical technician (having taken courses for certification from 
 
         August, 1985 through February, 1986) and desires to take further 
 
         courses to become a certified medical aide, and perhaps 
 
         eventually a nurse.
 
         
 
              Claimant testified on cross-examination that he intends to 
 
         remain in the city of Riceville for the foreseeable future.  He 
 
         also testified that he would be happy to remain at his present 
 
         job for the rest of his life, that he has no desire to accept 
 
         work with United Parcel Service (despite the higher wage) and 
 
         would not return to his former job as a welder, even considering 
 
         the higher wage.  He specified that he does not intend to seek 
 
         other work, even if it might be within his capabilities.
 
         
 
              Claimant presently complains of numbness to his leg after 
 
         sitting, which continues to bother him with unsteadiness 
 
         approximately once per week.  He also complains of lower back 
 
         pain and limping.
 
         
 
              Arliss Bode testified that she is director of nurses and 
 
         health services supervisor for Faith Lutheran Home.  She 
 
         testified that claimant is a certified nurse's aide on the day 
 
         shift working directly with residents.  Employees work in pairs.  
 
         She indicated that claimant is a good employee and gets help from 
 
         fellow employees.  Claimant suffers from a limp, but does not 
 
         make complaint.  He is treated by management the same as other 
 
         nurse's aides.
 
         
 
              Claimant is currently working approximately 38-40 hours per 
 
         week with some overtime, but very little.  He is now earning 
 
         $4.45, and although unsure about the maximum in his position, she 
 
         believed it to be about $5.00 per hour.  Medical aides are paid 
 
         slightly more, and the next highest position is LPN.  The 
 
         physical requirements of that position are no greater than those 
 
         in claimant's current position, and she was of the belief that 
 
         claimant could perform as an LPN if properly trained.
 
         
 
              Donna Burkhardt testified that she is an LPN charge nurse 
 
         and claimant's direct supervisor.  She indicated that claimant 
 
         does not perform lifting functions, except lifting patients 
 
         (Arliss Bode had explained that hydraulic-mechanical lifts are 
 
         available to assist patients in and out of bed).  She further 
 
         indicated that claimant does limp and has trouble standing, but 
 
         does not complain or ask for.help more often than other nurse's 
 
         aides.
 
         
 
              Leona Lubbert testified to being claimant's wife since May 
 
         12, 1984.  She indicated that claimant had no physical problems 
 
         prior to the work injury in August of that year.
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 5
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         Since then, claimant still has leg problems, favoring the right 
 
         leg when he stands, has fallen, has slowed down a lot, can walk 
 
         only approximately four blocks before beginning to limp, and is 
 
         subject to fidgeting if his back hurts.  Claimant is unable to 
 
         drive more than approximately 50 miles and has difficulty 
 
         performing such chores as vacuuming, cleaning floors and walls, 
 
         or gardening.  On cross-examination, Ms. Lubbert indicated that 
 
         claimant does continue appearing for work regularly, even when 
 
         his back hurts and that he is capable of driving more than 50 
 
         miles at one time, but not comfortably.
 
         
 
              Barbara Chaldy testified to being a rehabilitation 
 
         consultant who at one time was claimant's case manager.  She 
 
         first saw claimant on December 6, 1984 and continued seeing him 
 
         through August 14, 1985, when she closed the file upon being so 
 
         advised by defendants (claimant agreed on cross-examination that 
 
         he told a representative of IMT Insurance that he would find his 
 
         own job in July or August, 1985).  Ms. Chaldy was never asked to 
 
         assist claimant in job placement.
 
         
 
              Ms. Chaldy testified that she visited Dr. Shives at Mayo 
 
         Clinic, where she was advised on March 25 or 26, 1985, that 
 
         claimant had no restrictions and no permanent impairment.  
 
         However, she agreed on cross-examination that she did not believe 
 
         Dr. Shives was untruthful in his later letter and that it was not 
 
         unusual for a physician's opinion to change.over time.  She 
 
         assumed that the purpose of Dr. Shives' subsequent letter was to 
 
         assist claimant in obtaining the services of Vocational 
 
         Rehabilitation Services of Iowa.
 
         
 
              Ms. Chaldy indicated that her review of Iowa vocational 
 
         rehabilitation records reflected no medical restrictions on 
 
         claimant and that his present work is considered medium duty, not 
 
         light.  She believed that industrial jobs were available at 
 
         greater wages that involved no heavier work than claimant was now 
 
         doing.  She agreed that claimant's symptoms make it more 
 
         difficult for him to be hired, since he is honest and discloses 
 
         his symptomatology on employment applications.
 
         
 
              Records of the Mayo Clinic in Rochester, Minnesota, show 
 
         that claimant was seen on an emergency basis on August 8, 1984.  
 
         Stephen A. Kramer, M.D., wrote on August 13 that claimant 
 
         sustained a pelvic crush injury with complete transection of the 
 
         bulbomembranous urethra.  Surgery was immediately performed.
 
         
 
         
 
         
 
         LUBBERT V. MARVIN GRONWOLDT, SR.
 
         Page 6
 
         
 
         
 
              Claimant underwent a penile prosthesis implantation on 
 
         April 11, 1985 and was discharged on April 16, 1985.  He was 
 
         instructed to restrict activities for four weeks.  William L. 
 
         Furlow, M.D., wrote on June 5, 1985, that claimant had his 
 
         permission to start physical therapy any time after June 1, 1985.  
 
         "From a urologic standpoint, there would be limitations as to 
 
         weight or exercise tolerance."  However, the quotation was 
 
         apparently a typographical error, since Dr. Furlow wrote claimant 
 
         on the same date to state that from a urologic standpoint there 
 
         would be no restrictions with regard to therapy.  And again, on 
 
         July 31, 1985, Dr. Furlow repeated that there would be no 
 
         limitations as to weight or exercise tolerance.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Thomas C. Shives, M.D., also of the Mayo Clinic, treated 
 
         claimant with respect to his orthopaedic injuries.  Dr. Shives 
 
         wrote on May 22, 1985, that claimant had sustained multiple 
 
         fractures to the pelvis, was initially treated with bed rest and 
 
         subsequently began on crutch ambulation, gradually increasing his 
 
         activities.  He wrote that he had last seen claimant on March 26 
 
         when claimant reported feeling well and complained of only 
 
         occasional discomfort in the right sacroiliac region.  Dr. Shives 
 
         continued:
 
         
 
              On physical examination he walked without a limp.  There was 
 
              no tenderness to fist percussion in the right sacroiliac 
 
              region or in the region of the pubic symphysis.  Tomograms 
 
              of the right sacroiliac region showed his sacral fracture to 
 
              be completely healed.  His rami fractures have also healed 
 
              but with some displacement.
 
              
 
              From an orthopedic-standpoint, I advised Mr. Lubbert that he 
 
              could return to work as of April 1, 1985, without 
 
              restriction.
 
         
 
              Dr. Shives wrote on June 20, 1985 a letter addressed "To 
 
         Whom It May Concern":
 
         
 
              Mr. Stanley Charles Lubbert has been under my care for 
 
              multiple pelvic fractures since August of 1984.  As of April 
 
              1, 1985, I advised him that he could return to work without 
 
              restriction.  I do not believe that Mr. Lubbert need be 
 
              subject to any exercise or weight lifting limitations with 
 
              regard to his pelvic fractures.
 
         
 
              Dr. Shives entered further chart notes on August 21, 1985, 
 
         to the effect that claimant had complained of continued 
 
         intermittent discomfort in the right sacroiliac
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 7
 
         
 
         
 
         region with prolonged bending, stooping or lifting.  He found 
 
         that claimant had a full range of motion of the lumbar spine with 
 
         mild tenderness to fist percussion in the right sacroiliac region 
 
         and mild pain with hyperextension of the hip and with fabre 
 
         maneuver.  Dr. Shives believed that claimant's discomfort arose 
 
         from his sacral fracture with possible minimal disruption of the 
 
         joint and advised claimant to try to live with the discomfort, as 
 
         the only other option was surgical fusion.
 
         
 
              Dr. Shives reported on October 11, 1985, that claimant was 
 
         having increasing discomfort in the right sacroiliac region and 
 
         complained of "numbness and tingling" of the entire right lower 
 
         extremity intermittently, especially after prolonged sitting.  
 
         Claimant was found to walk with a slight antalgic limp on the 
 
         right with pain to fist percussion in the right sacroiliac 
 
         region.  However, after reviewing tomograms of the right 
 
         sacroiliac joint, he found them essentially normal, with no 
 
         evidence of degenerative or post-traumatic degenerative joint 
 
         disease.  He believed that it would take additional time for 
 
         claimant's symptoms to subside.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was seen at the Mayo Clinic for a second opinion 
 
         regarding his right lower back pain on December 9, 1985.  Chart 
 
         notes of R. B. Hanseen/L.  Peterson:
 
         
 
              Patient is a 37 year old farm laborer, who presents for a 
 
              second opinion regarding chronic post-traumatic right low 
 
              back pain.  The patient's symptoms stem from an 8-8-84 
 
              cave-in injury which he suffered while digging a ditch, 
 
              resulting in bilateral superior and inferior pubic ramie 
 
              fractures, disruption of the symphysis pubis and fracture of 
 
              the right sacrum.  He also suffered disruption of his 
 
              membraneous urethra and subsequently developed vasculogenic 
 
              impotence, for which an inflatable penile prosthesis was 
 
              placed in 4/85.  Following his pelvic fracture, the patient 
 
              was treated with one month of bedrest and then gradually 
 
              mobilized.  His convalescence was largely uneventful with 
 
              gradual resolution of all pubic and groin discomfort.  He 
 
              has been left, however, with persistent symptoms of pain 
 
              with any activity referable [sic] to his right low back 
 
              region.  He describes his discomfort as an ache without 
 
              radiation.  There is no night component to his discomfort 
 
              and he takes no pain medications, but he states that his 
 
              discomfort is severe enough whenever he tries to stand or 
 
              sit for prolonged periods or stoop and lift, that he has 
 
              been unable
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 8
 
         
 
         
 
              to successfully return to work.  He presently has an 
 
              attorney involved in his insurance claims, which has 
 
              prompted the present second opinion for legal reasons.  
 
              Since his accident, the patient has been followed by Dr. 
 
              Shives; most recent evaluation by him included tomograms of 
 
              the right sacroiliac joint which were without evidence of 
 
              degenerative joint disease.  Patient also recently underwent 
 
              a neurologic evaluation.  This was for consideration of his 
 
              complaints over the past three months that his legs, 
 
              bilaterally, "fall asleep" whenever he maintains one 
 
              position for a prolonged period.  This can either be 
 
              standing or sitting and is worse on the right side. on 
 
              examination, the patient is healthy appearing.  Today he 
 
              walks without a limp.  Height is 75 1/2 inches, weight 221 
 
              pounds.  Heel and toe walking is normal.  Patient squats and 
 
              rises without limitation.  Range of motion of the spine is 
 
              full and painless and shows flexion to 90 degrees, extension 
 
              45 degrees, lateral bending 45 degrees bilaterally.  There 
 
              is no spine or pelvic tenderness though distal palpation of 
 
              the right sacroiliac area elicits symptoms of tingling about 
 
              the right knee.  Range of motion of the hips is also full, 
 
              showing flexion 120 degrees, abduction 45 degrees, adduction 
 
              30 degrees, external rotation 45 degrees and internal 
 
              rotation 30 degrees.  Forced internal rotation does cause 
 
              some minimal right groin discomfort.  Faber testing on the 
 
              right elicits some right back pain.  Straight leg raising 
 
              bilaterally to 90 degrees is negative.  Sensory, motor and 
 
              reflect examination of the lower extremities is within 
 
              normal limits.  Review of recent pelvic x-rays show old 
 
              fracture deformity of the pubic bones bilaterally and the 
 
              right sacrum.  Recent sacroiliac tomograms are unavailable 
 
              for inspection.  Spine radiographs show hypertrophic changes 
 
              of the lower thoracic spine.
 

 
              
 
 
 
 
 
 
 
 
 
 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Assessment: Chronic, post-traumatic right sacroiliac pain.  
 
              The patient's symptoms appear only debilitating as they 
 
              relate to his past occupation as a laborer.  He has 
 
              presently enrolled in EMT training.
 
              
 
              Plan: Patient is to be seen in further evaluation by Dr. 
 
              Peterson.  Compensation for the patient's chronic pain 
 
              problem might include changes in his
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 9
 
         
 
         
 
              life-style with job retraining, as he is presently doing.
 
         
 
              Dr. Peterson also noted on the same date that claimant had 
 
         excellent motion in the lower back and both hips and that 
 
         tomograms of the right sacroiliac joint were unremarkable.  New 
 
         roentgenograms of October 11 revealed healed fractures of the 
 
         pubic ramie and completely normal hip joints.  The fracture 
 
         through the right side of the sacrum had now completely healed 
 
         with approximately two centimeters of proximal displacement of 
 
         the entire right hemipelvis.
 
         
 
              Dr. Shives wrote identical letters on January 13, 1986 that 
 
         claimant's convalescence was largely uneventful with gradual 
 
         resolution of all pubic and groin discomfort, but that he had 
 
         continued to complain of persistent symptoms of pain in the right 
 
         lower back region with activity and that claimant was unable to 
 
         stand or sit for prolonged periods of time, being therefore 
 
         unable to return to his prior occupation.  Dr. Shives continued:
 
         
 
              Mr. Lubbert carries the diagnosis of chronic post-traumatic 
 
              right sacroiliac pain.  I think it would be reasonable for 
 
              him to attempt to pursue a line of work which requires less 
 
              vigorous physical activity than farm labor.
 
         
 
              Dr. Shives also wrote IMT Insurance Company on September 4, 
 
         1987, to state that claimant had reached maximum recovery with 
 
         regard to his injuries as of June 20, 1985.
 
         
 
              Further records of the Mayo Clinic show that claimant 
 
         underwent additional urologic surgery on February 2, 1988.  
 
         Michael L. Blute, M.D., wrote on February 15 that claimant should 
 
         be considered disabled for a period of six weeks following the 
 
         surgery, with a 5-pound weight restriction, following which he 
 
         could return to his routine duties.
 
         
 
              Claimant was seen for evaluation by Peter D. Wirtz, M.D. 
 
         Dr. Wirtz specializes in general orthopaedics.  He wrote defense 
 
         counsel of September 28, 1988, that claimant continued to note 
 
         right lower back pain but no bony front pain to the pelvic area.  
 
         Examination showed claimant to be tender in the right posterior 
 
         paravertebral musculature.  There was no motor or sensory deficit 
 
         and normal range of motion.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Wirtz noted that x-rays of May 18, 1987 showed that the 
 
         pelvis had healed fractures in the pubic and ischial
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 10
 
         
 
         
 
         ramus on the right side in two areas.  Further, that x-rays in 
 
         his office showed retrospondylolisthesis L4-5 with a spur in the 
 
         superior plate of L5.
 
         
 
              Dr. Wirtz's diagnosis was of healed pelvic fracture, right 
 
         and lumbar disc disease, L4-5.  He stated:
 
         
 
              This patient's current X-ray reveals that the pelvic 
 
              fractures have healed without deformity.  Previous records 
 
              reveal that the SI joint has healed without deformity.  
 
              Pelvic fractures healing without displacement are 
 
              asymptomatic and without functional impairment.
 
              
 
              The patient's present symptoms in the back and tenderness 
 
              relating to the right back area is muscular in nature and 
 
              relates to the L4-5 lumbar disc degenerate disease.  This is 
 
              a developmental condition in the lumbar spine and is not 
 
              caused by pelvic fracture or aggravated by such.
 
         
 
              Claimant was seen for evaluation on May 18, 1987, by 
 
         Timothy Mead, M.D. Dr. Mead, a board-certified orthopaedic 
 
         surgeon, testified by deposition taken June 29, 1988.
 
         
 
              At the time of Dr. Mead's evaluation, claimant complained 
 
         of right lower extremity discomfort, and discomfort in the 
 
         sacroiliac joint, especially when active.  Dr. Mead did not 
 
         examine or treat claimant for urological complaints.
 
         
 
              Dr. Mead reported that claimant appeared to have a slight 
 
         limp, but no atrophy of his muscles with discomfort right over 
 
         the sacroiliac joint.  Claimant had normal motion of the knees, 
 
         ankles and feet.  An x-ray of the pelvis and sacroiliac joint was 
 
         obtained and showed displaced pubic ramus fractures, but the 
 
         sacroiliac joint failed to show gross irregularities.  Dr. Mead 
 
         also agreed on cross-examination that the Mayo Clinic tomograms 
 
         failed to show irregularities at the sacroiliac joint.  He 
 
         further agreed that spinal motion was entirely within normal 
 
         limits, as was also the case with knees, ankles and feet, and 
 
         that straight leg raising was negative.  Dr. Mead further agreed 
 
         with the statement that the only abnormalities that he obtained 
 
         as a part of his examination were expressions of pain by 
 
         claimant.  However, Dr. Mead also indicated that he had found a 
 
         displacement deformity with respect to the pelvic fractures.  It 
 
         was on this basis that he had found claimant to have impairment 
 
         under the American Medical Association Guides to the Evaluation 
 
         of Permanent Impairment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 11
 
         
 
         
 
              Using those guidelines, Dr. Mead felt that claimant had a 
 
         five percent impairment to the body as a whole based on his pubic 
 
         ramus bilateral fractures and another ten percent impairment of 
 
         the whole person based on his sacral fracture into the SI joint.  
 
         Using the combined chart, he found this to be a total impairment 
 
         of 14 percent.  When asked if the 14 percent rating encompassed 
 
         any of the pain which Mr. Lubbert experienced, Dr. Mead 
 
         responded:
 
         
 
              A.  The only way that it doesn't include that is whether 
 
              it's symptomatic or asymptomatic in that if it is 
 
              symptomatic it is included in that respect only.
 
         
 
         (Dr. Mead deposition, page 8, lines 5 through 7)
 
         
 
              However, Dr. Mead clarified that response later in his 
 
         deposition.  He testified that the ten percent impairment rating 
 
         ascribed to the sacroiliac joint was due to discomfort and that 
 
         sacroiliac joints can often maintain as painful after injury.  He 
 
         specifically agreed that the ten percent permanent impairment 
 
         ascribed to the sacroiliac problem was due to claimant's 
 
         subjective complaints of pain, but stated:
 
         
 
              A.  It is my feeling, and I said before which category it 
 
              would fit in, the sacral fracture alone is 5 percent.  If it 
 
              is sympotmatic [sic] being in the sacral joint, put it into 
 
              the sacroiliac with residuals of discomfort which will make 
 
              it 10, and that way is the way I used for rating.
 
              
 
              (Discussion off the record.)
 
              
 
              Q.  Again, back on the record, you're referring to page 58 
 
              of the Guides to Evaluation of Permanent Impairment, Second 
 
              Edition?
 
              
 
              A.  Correct.
 
              
 
              Q.  And again you're talking about a healed fracture with 
 
              displacement to the sacrum, isn't that correct?
 
              
 
              A.  With residuals, yes.
 
         
 
         (Dr. Mead deposition, page 18, line 21 through page 19, line 10)
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 12
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              Dr. Mead agreed that he had no objective evidence of 
 
         displacement of the sacrum, and further agreed that under the AMA 
 
         guides, if there is no displacement of the sacrum, the impairment 
 
         rating is zero.  However, he testified:
 
         
 
              Q.  Based upon Mr. Lubbert's complaints to you, as well as 
 
              your physical examination, I believe particularly your 
 
              examination of the sacroiliac joint, did you form an opinion 
 
              as to whether he did have involvement of the sacroiliac 
 
              joint?
 
              
 
              A.  Yes, I felt he had involvement.
 
              
 
              Q.  Okay. And as an orthopedic surgeon, are you frequently 
 
              called upon to make an opinion as to whether or not the 
 
              sacroliliac [sic] joint has been involved based upon your 
 
              examination, even without ordering the CT exam to make sure 
 
              of it?
 
              
 
              A.  Yes.
 
              
 
              Q.  And concerning your opinion that in the case of Mr. 
 
              Lubbert, he did have a fracture of the sacrum and 
 
              involvement of the SI joint with residuals, do you feel that 
 
              that opinion is based upon a reasonable degree of medical 
 
              certainty?
 
              
 
              A.  I think so.
 
              
 
              Q.  And if once you've made that opinion, what do the AMA 
 
              Guides state his impairment rating is?
 
              
 
              A.  10 percent.
 
              
 
         (Dr. Mead deposition, page 21, line 14 through page 22, line 10)
 
         
 
              Yet, Dr. Mead testified on cross-examination:
 
         
 
              Q.. . You would agree with me, wouldn't you, doctor that 
 
              your objective test failed to show any displacement of the 
 
              sacrum?
 
              
 
              A.  The X rays did not show any displacement of the sacrum, 
 
              right.
 
              
 
              Q.  And you would agree with me that the AMA Guides on page 
 
              58 of the document in front of you require displacement of 
 
              the sacrum before any impairment is applicable?
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 13
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              A.  Correct.
 
         
 
         (Dr.  Mead deposition, page 23, lines 4 through 13)
 
         
 
              When asked if he recommended any restrictions on claimant's 
 
         physical activities, Dr. Mead testified:
 
         
 
              A.  I feel that a man who's having continued sacroiliac 
 
              joint discomfort, especially with heavy activity, should, as 
 
              a matter of course. preferably do a more lighter duty type 
 
              of occupation.  I felt that sometimes continued heavy 
 
              lifting may actually increase his sacroiliac pain.
 
              
 
              Q.  Is there a pound restriction that you recommended that 
 
              he follow?
 
              
 
              A.  I didn't assign an exact poundage rating, no.
 
              
 
         (Dr. Mead deposition, page 8, lines 16 through 25)
 
         
 
              Claimant eventually participated in a vocational 
 
         evaluation/career planning program at Iowa State Vocational 
 
         Rehabilitation facility in Des Moines from April 28, 1986 through 
 
         May 30, 1986.  A transfer summary was prepared on June 12, 1986, 
 
         by counselor Richard Rattray.
 
         
 
              Mr. Rattray noted that the academic preparation evaluator 
 
         found that the results of a assignments in that area suggested 
 
         that claimant could be successful in a training program.  The 
 
         health occupations evaluator recommended claimant as a 
 
         phlebotomist starting with an on-the-job training program or a 
 
         short course in adult education.  Claimant was seen as a marginal 
 
         candidate for a lengthy formal training program requiring 
 
         structure and should not be in a people contact vocation as 
 
         claimant verbalized too much and, although he did accept 
 
         supervision, at times tended to take off in his own direction in 
 
         spite of stated expectations.
 
         
 
              The industrial skills evaluator was reported to feel that 
 
         claimant demonstrated work habits that were competitive in 
 
         selective types of industrial trades and demonstrated good basic 
 
         mechanical aptitudes.  Claimant demonstrated accuracy and 
 
         quality.  However, his physical disability would be a limiting 
 
         factor in some vocations.  Claimant had the skills for selective 
 
         placement as a production line or tack welder if medically 
 
         approved.  However, it was the opinion of the evaluators in that 
 
         unit that claimant's physical limitations and required selective 
 
         placement would
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 14
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         make it very difficult and almost unlikely to get medical 
 
         approval to carry out these jobs for a 40-hour week.
 
         
 
              The work awareness evaluator found claimant to have the 
 
         ability to do hands-on tasks at a helper level for tasks such as 
 
         collating, scale weighing, packaging, or record keeping.  
 
         Claimant was believed to have the potential to learn duties as an 
 
         office helper, light messenger or mail room clerk.
 
         
 
              Psychological testing indicated intellectual functioning 
 
         within the average range.  Claimant showed no organic brain 
 
         dysfunction.  On the personality test, claimant used denial in 
 
         coping with his disability, which was seen as affecting him in 
 
         making some unrealistic vocational choices.
 
         
 
              Recommendations noted that claimant selected employment in 
 
         the health field as his first choice in the discharge counseling 
 
         session.  It was recommended that claimant would need a lot of 
 
         personal guidance and counseling, but Mr. Rattray believed that 
 
         the health field was realistic if training was available, the job 
 
         was not too physical and claimant's people contact skills were 
 
         refined.
 
         
 
              The record contains several reports authored by Barbara 
 
         Chaldy of Management Consulting & Rehabilitation Services, Inc.  
 
         Ms. Chaldy visited claimant on several occasions, but took no 
 
         steps to place claimant in employment or rehabilitation training 
 
         before being removed from the case by defendant IMT.  Ms. Chaldy 
 
         did contact Marvin Gronwoldt on July 29, 1985, but there was no 
 
         work available for claimant and claimant had previously expressed 
 
         reluctance to return to this employment.  On July 16, 1985, Ms. 
 
         Chaldy suggested to claimant that he contact three employers in 
 
         Osage and Cresco, Iowa for possible employment.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              As shall be seen, this decision finds that claimant has 
 
         sustained industrial disability.  Therefore, it is appropriate 
 
         first to consider the extent of his healing period.
 
         
 
              Under Iowa Code section 85.34(1), healing period extends 
 
         from the date of injury and until the employee has returned to 
 
         work, it is medically indicated that significant improvement from 
 
         the injury is not anticipated, or until the individual is 
 
         medically capable of returning to substantially similar 
 
         employment, whichever first occurs.
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 15
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Shives was the treating orthopaedic surgeon.  On March 
 
         26, 1985, he wrote that "from an orthopaedic standpoint" claimant 
 
         could return to work as of April 1.  Of course, the orthopaedic 
 
         standpoint was only part of claimant's injuries.  Dr. Furlow 
 
         wrote on June 5 that "from a urologic standpoint" there would be 
 
         no limitations as to weight or exercise tolerance as of June 1, 
 
         1985.
 
         
 
              Dr. Shives also wrote on September 4, 1987 to state that 
 
         claimant had reached "maximum recovery" as of June 20, 1985.  
 
         Curiously, June 20, 1985 was the date of another letter Dr. 
 
         Shives wrote stating that claimant had been advised he could 
 
         return to work without restriction as of April 1, 1985.  The 
 
         record is unclear as to whether there was any change in 
 
         claimant's condition "from an orthopaedic standpoint" from April 
 
         1 to June 20, 1985.  Nonetheless, the June 20 date will be 
 
         accepted as ending claimant's healing period because that opinion 
 
         was rendered by Dr. Shives subsequent to his opinion that 
 
         claimant could be released without restriction April 1, and 
 
         thereby acts as an amendment.  It might be noted that even if the 
 
         June 20 date were held to relate back to April 1, the healing 
 
         period would end June 1, when claimant was released "from a 
 
         urologic standpoint."
 
         
 
              Alternatively, it might be noted that Dr. Mead recommended 
 
         that claimant not return to the same work, or at least that he 
 
         seek a lighter job.  If claimant was unable to return to his 
 
         farming job, healing period would end when he reached maximum 
 
         recovery.  The release as of April 1 is a release without 
 
         restriction, but the June 20 date is expressed in terms of 
 
         maximum recovery rather than ability to return to substantially 
 
         similar employment.
 
         
 
              Claimant is also entitled to six additional weeks of 
 
         intermittent healing period following his prosthesis replacement 
 
         on February 2, 1988.
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of August 8, 1984 is casually 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of casual connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 16
 
         
 
         
 
              However, expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the casual connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v.  Central Telephone Co
 
         ., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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.
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 17
 
         
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Shives eventually released claimant without any 
 
         restrictions whatsoever.  He has not indicated that claimant has 
 
         sustained any degree of functional disability.  However, on the 
 
         basis of claimant's diagnosis of chronic post-traumatic right 
 
         sacroiliac pain (that diagnosis alone demonstrates casual 
 
         connection to the injury), he felt it would be "reasonable" for 
 
         claimant to attempt to pursue a line of work which requires less 
 
         vigorous physical activity than farm labor.
 
         
 
              Defendants properly point out in their brief that this 
 
         statement does not constitute a mandatory imposition of physical 
 
         restrictions.  That is obviously correct, especially since Dr. 
 
         Shives released claimant without restriction.  From claimant's 
 
         point of view, the statement is at best a recommendation only.
 
         
 
              Dr. Peterson noted on December 9, 1985, that roentgenograms 
 
         of October 11 revealed healed fractures of the pubic rami and a 
 
         completely healed fracture through the right side of the sacrum, 
 
         but the sacral fracture had healed with approximately two 
 
         centimeters of proximal displacement of the entire right 
 
         hemipelvis.
 
         
 
              The assessment of Drs. Hanseen and Peterson was that 
 
         claimant's orthopedic symptoms appear "only debilitating as they 
 
         relate to his past occupation as a laborer."  This language is 
 
         interpreted to indicate that claimant's symptoms are "merely 
 
         weakening" in relation to his past occupation.  The language does 
 
         not appear to restrict claimant from pursuing the same work.  
 
         However, it should be noted that a two centimeter displacement of 
 
         the right hemipelvis was shown on roentgenograms, a return to 
 
         laboring work would be weakening, and the physicians opined that 
 
         compensation for
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 18
 
         
 
         
 
         claimant's chronic pain problems might include changes in his 
 
         life-style with job retraining.  Therefore, it seems reasonable 
 
         to construe these statements as indicating at least a 
 
         recommendation that claimant seek less strenuous work in the 
 
         presence of an objective finding of pelvic displacement, even 
 
         though specific physical limitations were not otherwise imposed.  
 
         Drs. Hanseen and Peterson have not been shown to have expressed a 
 
         view as to permanent impairment on any percentage basis.
 
         
 
              Dr. Mead's testimony is inherently self-contradictory with 
 
         respect to whether it was appropriate to assign a percentage 
 
         rating to claimant's impairment pursuant to the American Medical 
 
         Association guides.  Dr. Mead's x-rays reflected that there were 
 
         displaced pubic ramus fractures, but the sacroiliac joint failed 
 
         to show gross irregularities.  Dr. Mead agreed that Mayo Clinic 
 
         tomograms failed to show sacroiliac irregularities. spinal motion 
 
         was entirely within normal limits and Dr. Mead agreed on 
 
         cross-examination that the only abnormalities he obtained as a 
 
         part of his examination were expressions of pain by claimant.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Let it be said that the undersigned finds claimant to be a 
 
         credible witness and believes that he continues to suffer pain in 
 
         the sacroiliac region.
 
         
 
              Dr. Mead opined that claimant had a five percent impairment 
 
         to the body as a whole based on his pubic ramus bilateral 
 
         fractures and another ten percent based on his sacral fracture.  
 
         He then clarified that rating to indicate that the ten percent 
 
         impairment ascribed to the sacroiliac joint was due to discomfort 
 
         and specifically due to claimant's subjective complaints of pain.  
 
         He considered the sacral fracture alone to be five percent 
 
         impairment and added five percent by reason of residuals of 
 
         discomfort.
 
         
 
              However, Dr. Mead also agreed that he had no objective 
 
         evidence of displacement of the sacrum and further agreed that 
 
         under the AMA guides the impairment rating is zero is there is no 
 
         displacement of the sacrum.  Of course, Dr. Peterson did find a 
 
         two centimeter displacement of the sacrum.  Yet, it appears that 
 
         Dr. Mead was either unaware of that finding or disagreed with it.  
 
         The record is silent as to which alternative is actually the 
 
         case.
 
         
 
              It appears to the undersigned that Dr. Mead's opinion as to 
 
         whether claimant sustained a quantifiable impairment under the 
 
         AMA guides is so self-contradictory as to be without value.  Yet, 
 
         Dr. Mead did further testify that claimant should, as a matter of 
 
         course, "preferably do a
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 19
 
         
 
         
 
         more lighter duty type of occupation.  I felt  that  sometimes 
 
         continued heavy lifting may actually increase his sacroiliac 
 
         pain."
 
         
 
              Thus, while it appears that Dr. Mead did not recommend any 
 
         specific physical limitations, he did recommend that claimant 
 
         discontinue his work (presumably as a farmer, since this was his 
 
         most recent occupation) to avoid continued heavy lifting.
 
         
 
              Dr. Wirtz, a specialist in general orthopaedics, found 
 
         normal range of motion with no motor or sensory deficit.  He 
 
         interpreted x-rays of May 18, 1987 as showing healed pelvic 
 
         fractures in the pubic and ischial ramus on the right side in two 
 
         areas and retrospondylolisthesis at L4-5 with a spur in the 
 
         superior plate of L5.  He found that both the pelvic and sacral 
 
         fractures had healed without deformity.  He stated that pelvic 
 
         fractures healing without displacement are without functional 
 
         impairment. with respect to claimant's complaint of back pain, he 
 
         found that claimant's symptoms were muscular in nature and relate 
 
         to degenerative disc disease, a developmental condition not 
 
         caused or aggravated by the pelvic fracture.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Wirtz's opinion is inconsistent with the opinions of 
 
         three other physicians, including a board-certified orthopaedic 
 
         surgeon.  Assuming that Dr. Wirtz is correct in stating that 
 
         claimant's back symptoms arise from his degenerative disc 
 
         disease, it must also be remembered that claimant was 
 
         asymptomatic prior to his stipulated work injury and has been 
 
         symptomatic from that date to the present.  It has been held that 
 
         if claimant has a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nix 
 
         v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).  
 
         At the very least, the record is clear that the work injury 
 
         "lighted up" claimant's condition.  Therefore, since claimant's 
 
         current pain symptoms are either caused by or lighted up by the 
 
         work injury, Dr. Wirtz's opinion is insufficient to discredit 
 
         three other medical recommendations that claimant seek less 
 
         strenuous employment.
 
         
 
              As noted earlier, loss.of function is to be considered in 
 
         determining industrial disability and such disability can rarely 
 
         be found without it.  Language to this effect has appeared in 
 
         innumerable deputy and appeal decisions issued by this agency.  
 
         Therefore, even though claimant has not been shown to have 
 
         sustained functional impairment, it is implicit in these many 
 
         reiterations of the law that a
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 20
 
         
 
         
 
         finding of industrial disability is not necessarily foreclosed.
 
         
 
              This appears an appropriate case to find that industrial 
 
         disability does exist in the absence of quantifiable physical 
 
         impairment.  The greater weight of medical opinion is that 
 
         claimant should not continue his farming career.  However, it 
 
         must also be emphasized that claimant is under no other specific 
 
         physical restrictions to indicate what other career opportunities 
 
         might be foreclosed.  The recommendations of the Iowa State 
 
         Vocational Rehabilitation facility appear to be based in part on 
 
         the supposition that claimant's "physical limitations and 
 
         required selective placement would make it very difficult and 
 
         almost unlikely to get medical approval to carry out these jobs 
 
         for a 40-hour week."  That supposition is not borne out by the 
 
         medical record.  This reduces the value of those recommendations.
 
         
 
              Claimant take the position that his industrial disability 
 
         should be measured by the potential difference in income between 
 
         his present position as a nurse's aide and his former position as 
 
         a welder.  Defendants take the position that claimant's current 
 
         earning capacity should be measured against his earnings as a 
 
         farmer, since it was this occupation claimant was pursuing at the 
 
         time of his work injury.  Neither argument is entirely 
 
         persuasive. claimant was a welder from 1969 until August 1983, 
 
         only one year prior to the work injury.  There is no indication 
 
         that claimant did not have the capacity of continuing work as a 
 
         door welder prior to his injury, even though he was not then so 
 
         employed.  On the other hand, there is nothing in this record 
 
         that indicates that claimant is now unable to undertake virtually 
 
         the same employment.  It may have been medically recommended that 
 
         claimant discontinue farming, but the various recommendations 
 
         cannot fairly be read as excluding claimant from employment as a 
 
         welder.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Nonetheless, it may well be said that claimant is 
 
         foreclosed from at least some employment involving continued 
 
         heavy lifting.  It should also be noted that claimant is but 40 
 
         years old and presumably in his peak earning years.  Claimant is 
 
         of at least normal intelligence and is obviously capable of 
 
         retraining, since he has in fact successfully undergone training 
 
         as a nurse's aide.  Claimant's current employment, in which he is 
 
         clearly motivated and successful so far, does not appear to be 
 
         substantially less remunerative than claimant's work as a welder, 
 
         even if claimant were now foreclosed from that line of endeavor.
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 21
 
         
 
         
 
              Based on the foregoing in particular and the record in 
 
         general, it is held that claimant has sustained an industrial 
 
         disability of ten percent of the body as a whole, or 50 weeks.
 
         
 
              Total healing period benefits awarded are 51 weeks, 1 day.  
 
         Permanent partial disability awarded is 50 weeks.  The parties 
 
         have stipulated that defendants paid 132 3/7 weeks of voluntary 
 
         benefits prior to hearing.  Thus, claimant has been paid benefits 
 
         in excess of his entitlement.
 
         
 
              In their brief, defendants have requested a credit against 
 
         future medical and/or healing period benefits.  Iowa Code section 
 
         85.34(4) specifies that if an employee is paid excess temporary 
 
         total disability, temporary partial disability, or healing period 
 
         benefits, the excess shall be credited against the liability of 
 
         the employer for permanent partial disability, provided that the 
 
         employer or representative has acted in good faith in determining 
 
         and notifying an employee when the temporary total disability, 
 
         temporary partial disability, or healing period benefits are 
 
         terminated.  The statute does not address the question of whether 
 
         excess permanent partial disability paid voluntarily can be 
 
         credited against future medical or healing period benefits.
 
         
 
              In Anderson v. Woodward State Hospital School, 2-1 State of 
 
         Iowa Industrial Commissioner Decisions 24 (App. Decn. 1985 ), the 
 
         industrial commissioner ruled that the overpayment of weekly 
 
         compensation cannot be set off against medical benefits under 
 
         Iowa Code section 85.27.  The commissioner employed a two-pronged 
 
         analysis in reaching that determination.  First, the fact that 
 
         the statute did not contain a provision allowing a set-off 
 
         against medical benefits was itself sufficient to defeat the 
 
         requested credit.  The commissioner noted that medical benefits 
 
         are distinguishable from weekly compensation in that there was a 
 
         statute of limitations on weekly benefits and no statute of 
 
         limitations on medical benefits, indicating the high priority 
 
         attached by the legislature to meeting the medical needs of an 
 
         injured worker.  The commissioner also noted that the legislature 
 
         has enacted specific credits or setoffs, including section 
 
         85.34(4) and section 85.38(2).  Neither of these provisions could 
 
         be interpreted as to allow the setoff sought and the commissioner 
 
         was of the view that if the legislature had intended such a 
 
         credit, it would have been enacted.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Based on Anderson v. Woodward State Hospital School, it is 
 
         held that defendants are not entitled to a setoff of excess 
 
         weekly benefits against potential future medical
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 22
 
         
 
         
 
         benefits under Iowa Code section 85.27.  The remaining question 
 
         is whether defendants are entitled to a set-off against potential 
 
         future temporary or healing period benefits.  As has been seen, 
 
         section 85.34(4) does not address that issue, although certain 
 
         other credits are specifically enumerated.  In Wilson Food 
 
         Corporation v. Cherry, 315 N.W.2d 756 (Iowa 1982), claimant was 
 
         accidentally overpaid weekly benefits because his weekly benefit 
 
         rate for permanent disability was less than his rate for healing 
 
         period, but defendants failed to reduce his weekly check after 
 
         claimant had reached maximum recuperation.  The sole question 
 
         presented was whether that inadvertent overpayment should be 
 
         credited towards defendants' liability on remaining permanent 
 
         partial disability benefits.  The court did not apply the 
 
         "time-honored maxim" of statutory construction that the 
 
         expression of one (credit) is the exclusion of another.  That 
 
         maxim was inappropriate because the statutory credits were 
 
         intended by the general assembly to prevent dual benefits and did 
 
         not apply to provide overpayments.  The credit sought in that 
 
         case was not needed in the legislative scheme to proscribe 
 
         simultaneous collection of two benefits.  The credit was not one 
 
         which the legislature chose to omit, but was a question the 
 
         legislature did not address.  The court believed that the public 
 
         interest would be better served by encouraging employers to 
 
         freely pay injured employees without adversary strictness.  That 
 
         argument prevailed even though claimant was inadvertently 
 
         overpaid for a long period of time and the final cutoff of 
 
         benefits would thereby be accelerated and that claimant seriously 
 
         inconvenienced.  Nonetheless, he would eventually receive all of 
 
         the awards to which he was legally entitled.
 
         
 
              Even though section 85.34(4) does set forth specific 
 
         credits to be taken in the final determination of permanent 
 
         disability, and it is certainly arguable that the statutory maxim 
 
         cited above is applicable here for that reason, it still seems 
 
         more reasonable to approach this question as one that the 
 
         legislature simply did not address.  As the Supreme Court pointed 
 
         out in Wilson Food, there are sound public policy reasons for 
 
         encouraging employers to freely pay injured employees without 
 
         adversary strictness and it is not unfair to allow the credit, 
 
         since claimant will still receive all of the award to which he 
 
         may be entitled.  If an employer is denied the right to set off 
 
         voluntary overpayments of permanent disability or healing period 
 
         (the stipulation did not break down the voluntary benefits paid 
 
         into categories) against potential future temporary disability, 
 
         it would operate as a disincentive to make prompt, voluntary 
 
         payments to injured claimants in excess of the very minimum to 
 
         which such claimants might be entitled.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 23
 
         
 
         
 
         The result would be windfall double recovery of weekly benefits 
 
         for subsequent periods of temporary disability.  Also of note is 
 
         the argument contained in Anderson v. Woodward State Hospital 
 
         School that medical benefits should be distinguished from weekly 
 
         compensation benefits.  While that case specifically disallows a 
 
         setoff against medical benefits, it does not directly address the 
 
         issue of a setoff against future weekly benefits, and language to 
 
         that effect is obiter dicta.
 
         
 
              It is therefore held that defendants shall be entitled to a 
 
         credit for voluntary payments of weekly benefits in excess of 
 
         claimant's entitlement against periods of future disability 
 
         casually related to the work injury, but not against future 
 
         medical benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1. As stipulated, claimant sustained an injury arising out 
 
         of and in the course of his employment on August 8, 1984.  
 
         Claimant suffered from a severed urethra tube and a fractured 
 
         pelvis, including a fracture to the sacrum.
 
         
 
              2. By reason of his work injury, claimant was disabled from 
 
         work from August 8, 1984 until June 20, 1985, and following 
 
         subsequent surgery, again for six weeks effective February 2, 
 
         1988.
 
         
 
              3. As stipulated, claimant's rate of weekly compensation is 
 
         $102.09.
 
         
 
              4. Claimant's work injury has been shown to result in 
 
         medical recommendations that he leave his former field of 
 
         endeavor, farming, even though no specific physical restrictions 
 
         have been medically imposed.
 
         
 
              5. Defendants paid claimant 132 3/7 weeks of compensation 
 
         at the stipulated rate prior to hearing.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law  are made:
 
         
 
              1. Claimant has sustained his burden of proof in 
 
         establishing entitlement to healing period benefits from August 
 
         8, 1984 through June 20, 1985 (45 weeks, 1 day) and for a period 
 
         of six weeks beginning February 2, 1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LUBBERT v. MARVIN GRONWOLDT, SR.
 
         Page 24
 
         
 
         
 
              2. Claimant has established by his burden of proof that he 
 
         has sustained an industrial disability of ten percent of the body 
 
         as a whole by reason of his stipulated work injury.
 
         
 
              3. Defendants, having voluntarily paid weekly benefits in 
 
         excess of claimant's entitlement, are entitled to credit against 
 
         periods of potential future temporary or healing period 
 
         disability casually related to this injury, but not future 
 
         medical benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from this proceeding.
 
         
 
              Defendants are entitled to a credit for excess benefits 
 
         voluntarily paid to claimant prior to hearing to the extent of 
 
         thirty-one point two eight six (31.286) weeks against future 
 
         periods of temporary or healing period benefits casually related 
 
         to this injury, but this credit shall not apply to future medical 
 
         benefits.
 
         
 
              Costs of this action are assessed to defendants pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of January, 1990.
 
         
 
         
 
         
 
                                               DAVID RASEY
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. R. Ronald Pogge
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1703, 5-1802, 1803
 
                                               Filed January 26, 1990
 
                                               DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STANLEY LUBBERT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 772835 
 
         MARVIN GRONWOLDT, SR.,
 
                                               A R B I T R A T I 0 N 
 
              Employer,
 
                                               D E C I S I 0 N 
 
         and
 
         
 
         IMT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1802
 
         
 
              Claimant awarded healing period benefits.
 
         
 
         1803
 
         
 
              Claimant was found to have sustained minor industrial 
 
         disability because of medical advice that he leave employment for 
 
         lighter work, even though physicians did, not credibly rate 
 
         impairment or issue specific physical restrictions.
 
         
 
         1703
 
         
 
              Voluntary weekly benefit payments in excess of claimant's 
 
         entitlement were established as credit against potential future 
 
         temporary disability, but not against potential future medical 
 
         benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
           
 
                 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SCOTT C. MCKELVEY,
 
         
 
              Claimant,                              File No. 772870
 
         
 
         vs.                                           A P P E A L
 
         
 
         BURLINGTON MEDICAL CENTER,                  D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
         
 
         and                                           AUG 15 1989
 
         
 
         ST. PAUL INSURANCE COMPANY,           IOWA INDUSTRIAL 
 
         COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                               STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         further permanent partial disability benefits as the result of an 
 
         alleged injury on August 20, 1984.  The record on appeal consists 
 
         of the transcript of the arbitration hearing and joint exhibits 1 
 
         through 15.  Both parties filed briefs on appeal.
 
         
 
                                     ISSUE
 
         
 
              Claimant states the following issue on appeal:  Whether the 
 
         deputy commissioner's finding that claimant only has a 20 percent 
 
         permanent partial disability of his right arm as a result of the 
 
         injuries he sustained on August 20, 1984, was contrary to law and 
 
         the evidence and following therefrom whether the deputy 
 
         commissioner's further assessment of costs against the claimant 
 
         was in error.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                                                
 
                                                         
 
                               FINDING OF FACT
 
         
 
              Scott C. McKelvey has a 20 percent permanent partial 
 
         disability of his right arm as a result of the injuries he 
 
         sustained on August 20, 1984.
 
         
 
                              CONCLUSION OF LAW
 
         
 
              Scott C. McKelvey is entitled to receive 50 weeks of 
 
         compensation for permanent partial disability representing a 20 
 
         percent permanent partial disability of his right arm under the 
 
         provisions of Iowa Code section 85.34(2)(m).
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from this proceeding as 
 
         his entitlement to compensation was fully paid voluntarily by the 
 
         defendants prior to hearing.
 
         
 
              That the costs of this action are assessed against claimant 
 
         pursuant to Division of Industrial Services Rule 343-4-33, 
 
         including the following:
 
         
 
              Cynthia Varelli, Dr. Fischer's deposition   $  59.00
 
              Linda M. Flakne, Dr. Jochims' deposition      155.00
 
              Expert witness fee, Dr. Jochims               150.00
 
              Total                                       $ 364.00
 
         
 
              Signed and filed this 15th day of August, 1989.
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Patrick A. Tallon
 
         Attorney at Law
 
         25 E. Washington, Ste. 835
 
         Chicago, Illinois  60602
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa  52801