1803, 1803.1
 
                                                 Filed October 23, 1989
 
                                                 DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAN MOODY,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 773474
 
         
 
         VERNON BASCOM COMPANY,                  A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         THE TRAVELERS,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803.1
 
         
 
              Injury to two scheduled members in one incident was 
 
         compensated functionally, not industrially, as a combined 
 
         percentage of 500 weeks.
 
         
 
              Electrical injury to arms and hands bilaterally was to two 
 
         scheduled members and not body as a whole.  Even though current 
 
         obviously passed through claimant's torso, the only observable 
 
         functional loss was to upper extremities.
 
         
 
         1803
 
         
 
              Where physician began with body as a whole impairment rating 
 
         and then, working backwards, converted that to two upper 
 
         extremity ratings, deputy began with those extremity ratings and 
 
         converted to combined body as a whole rating by use of the AMA 
 
         Guides.  The result was one percentage point different from the 
 
         physician's body as a whole rating, which did not correspond with 
 
         the Guides' combined values table.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROGER SCRIVEN,
 
         
 
             Claimant,
 
         VS.
 
                                                 File No. 736203
 
         WILSON FOODS CORPORATION,
 
         
 
              Employer,
 
         
 
              Self-Insured,
 
              Defendant.
 
         _______________________________
 
         
 
         ROGER L. SCRIVEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 773539
 
         CEDAR RAPIDS MEATS,
 
                                                  A P P E A L
 
         Employer,
 
                                                  R U L I N G
 
         and
 
         
 
         SENTRY INSURANCE
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         _______________________________
 
         
 
         ROGER L. SCRIVEN,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         FARMSTEAD FOODS,
 
                                                 File No. 814542
 
         
 
              Employer,
 
         
 
         and
 
         
 
         SENTRY INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         SCRIVEN V. WILSON FOODS CORP/CEDAR RAPIDS MEATS/FARMSTEAD FOODS 
 
         Page 2
 
                                                
 
                                                         
 
         
 
         
 
         
 
              Rule 500-4.27 states in part: "No appeal shall be separately 
 
         taken under this or 4.25 (17A, 86) from an interlocutory 
 
         decision, order or ruling of a deputy industrial commissioner.  A 
 
         decision, order or ruling is interlocutory if it does not dispose 
 
         of the contested case."
 
         
 
              The ruling filed June 2, 1987 which is the subject matter of 
 
         this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
         THEREFORE, the appeal filed July 16, 1987 is hereby dismissed.
 
         
 
         Signed and filed this 28th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                            ACTING INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas B. Read
 
         Attorney at Law
 
         1710 IE Tower
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar Rapid, Iowa 52406
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2209
 
                                          Filed December 20, 1991
 
                                          BYRON K. ORTON
 
                                          DAD
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TED SCHEUERMANN,              :
 
                                          :
 
                 Claimant,                :    File Nos. 773553/872707
 
                                          :              872708
 
            vs.                           :
 
                                          :         A P P E A L
 
            OSCAR MAYER FOODS             :
 
            CORPORATION,                  :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            Affirmed deputy's denial of benefits, but clarified that 
 
            claimant failed to establish entitlement to benefits because 
 
            he had not carried his burden to show that his present 
 
            condition was causally connected to the work injury, not 
 
            because he had not suffered a cumulative injury.  A holding 
 
            by the deputy that claimant had not suffered a cumulative 
 
            injury because he was never compelled to leave work due to 
 
            pain was clarified.  Under McKeever, leaving work due to 
 
            pain is a method of establishing the date of injury for a 
 
            cumulative injury.  Other agency precedents establish that 
 
            where claimant suffers a cumulative injury but does not 
 
            leave work due to the pain, other factors can be used to 
 
            determine the date of injury.  Leaving work due to pain is 
 
            not an element of the definition of a cumulative injury 
 
            (such as a series of micro-traumas occurring over a period 
 
            of time), but rather a device to determine the date of 
 
            injury for a cumulative injury.  Here, claimant did suffer a 
 
            cumulative injury but failed to show causal connection.
 
            
 
            2209
 
            Appeal decision pointed out that leaving work due to pain in 
 
            a cumulative injury case under McKeever is an event that 
 
            determines the injury date.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         TED SCHEUERMANN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 773553
 
         
 
         OSCAR MAYER FOODS CORPORATION,
 
                                                 A P P E A L
 
         
 
                                                 R U L I N G
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         _________________________________________________________________
 
         
 
              On August 24, 1987 defendant filed an appearance and motion 
 
         to dismiss appeal.  The claimant having filed a resistance 
 
         thereto the same comes on for determination.
 
         
 
              A review of the file shows that there is presently on file a 
 
         petition for review-reopening and further medical benefits. it is 
 
         obvious that request for independent medical exam by claimant is 
 
         interlocutory at this time.  Claimant's filing a review-reopening 
 
         petition and the application in two different documents does 
 
         change the interlocutory nature of the ruling.
 
         
 
              Rule 343-4.27 states in part: "No appeal shall be separately 
 
         taken under this or 4.25(17A,86) from an interlocutory decision, 
 
         order or ruling of a deputy industrial commissioner.  A decision, 
 
         order or ruling is interlocutory if it does not dispose of the 
 
         contested case."
 
         
 
              The ruling filed July 10, 1987 which is the subject matter 
 
         of this appeal is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed August 6, 1987 is hereby 
 
              dismissed.
 
         
 
         
 
              Signed and filed this 21st day of September, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
                                                
 
                                                         
 
         Copies to:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         58j5 Grand Ave., Suite 201
 
         Des Moines, Iowa 50312
 
         
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         HARVEY WILSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File No. 773666
 
         SCHMIDT CONSTRUCTION CO.,
 
                                                   A P P E A L
 
              Employer
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         BITUMINOUS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding him 
 
         for a fifteen percent permanent partial disability benefits 
 
         industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits A through W. Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUE
 
         
 
              Claimant states the following issue on appeal: "The hearing 
 
         officer erred in awarding only 15% permanent partial disability 
 
         of the body as a whole.  It should have been considerably more, 
 
         in the range of 35-40%."
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant sustained a fracture to his left shoulder when he 
 
         fell from a ladder while working on a bridge construction project 
 
         for defendant-employer, Schmidt Construction Co. (hereinafter 
 
         Schmidt) on August 22, 1984.  Claimant also sustained a bruised 
 
         right elbow and sprained left elbow in this fall.  Claimant was 
 
         initially treated by K. S. Kaboli, M.D., for the injuries he 
 
         sustained in the fall from the ladder.  After a few
 
         weeks Dr. Kaboli referred claimant to Donald Mackenzie, M.D., an 
 
         orthopedic surgeon.
 
         
 
              Dr. Mackenzie treated claimant with physical therapy.  A 
 
         year of therapy treatment failed to bring about significant 
 
         improvement, so Dr. Mackenzie felt that claimant's shoulder 
 

 
         condition was permanent in nature.  Dr. Mackenzie sent claimant 
 
         to Rouben Mirbegian, M.D., for a second opinion.  Dr. Mirbegian 
 
         concurs with Dr. Mackenzie's opinion that claimant's shoulder 
 
         condition is permanent but disagrees with Dr. Mackenzie as to the 
 
         underlying mechanism which causes the continued pain and the loss 
 
         of strength in claimant's left shoulder.  Dr. Mackenzie opines 
 
         that claimant has a 35 percent permanent impairment of the upper 
 
         extremity as a result of the August 22, 1984 work injury.  Dr. 
 
         Mackenzie states that this rating translates to 21 percent 
 
         impairment of the whole man.  Dr. Mirbegian opines that claimant 
 
         suffers a 35 percent permanent impairment to his shoulder.
 
         
 
              Claimant was also examined by Bruce L. Sprague, M.D., at the 
 
         request of defendants.  Dr. Sprague opines that using the AMA 
 
         Guides claimant has a two percent impairment to the body as a 
 
         whole due to his fracture and deformity of the scapula.
 
         
 
              Claimant returned to work in June 1985 with work 
 
         restrictions limiting him to frequent lifting of 20 pounds or 
 
         less, no strenuous work or climbing.  Claimant worked for 
 
         approximately four months with difficulty and continued pain.  
 
         Claimant states that with the understanding of his supervisor and 
 
         the help of his coworkers he was able to perform his job 
 
         satisfactorily.  After four months claimant requested a two week 
 
         leave of absence for personal reasons unrelated to the work 
 
         injury in August 1984.  Claimant's understanding at the time he 
 
         requested this leave was that there was no guarantee that his job 
 
         would be there when he returned.  Claimant never returned to work 
 
         after this leave of absence nor sought other employment.  He 
 
         disclosed that he has not sought other employment because he does 
 
         not feel capable or qualified to work at his former job as a 
 
         carpenter.
 
         
 
              Claimant is 35 years old with a high school education.  He 
 
         has been a carpenter working out of a union hiring hall for the 
 
         last several years.  There is no indication in the record that 
 
         claimant suffered shoulder difficulties prior to the August 22, 
 
         1984 work injury.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         generally appropriate to the issues and evidence.  However, it is 
 
         noted nowhere in the hearing assignment order, prehearing report 
 
         and order or hearing transcript does the question of whether 
 
         claimant was an odd-lot employee appear.  Therefore, the deputy's 
 
         citation
 
         
 
         of Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) was 
 
         unnecessary as the question or whether claimant was an "odd-lot" 
 
         employee was not before the deputy.
 
         
 
                                     ANALYSIS
 
         
 
              The sole issue claimant raises on appeal concerns the extent 
 
         of his industrial disability.  Claimant argues that his 
 
         industrial disability is considerably higher than the 15 percent 
 
         found by the deputy.  In his analysis of claimant's industrial 
 
         disability the deputy stated the following:
 
         
 
                   Apart from his lost earnings during his healing 
 
              period which was compensated by claimant's healing 
 
              period benefits, claimant has suffered a significant 
 
              permanent loss in his actual earnings as a result of 
 
     
 
         
 
         
 
         
 
         
 
         WILSON V. SCHMIDT CONSTRUCTION CO.
 
         Page   3
 
         
 
         
 
              his current unemployment.  However, his current 
 
              unemployment is only in part the result of the work 
 
              injury.  He left the employment of Schmidt voluntarily 
 
              for reasons unrelated to the work injury by his own 
 
              admission.  To date, he has made no effort to return to 
 
              work at Schmidt or anywhere else.  It is unknown 
 
              whether other employers would be willing to make the 
 
              same accommodations for physical problems as he had 
 
              during his employment at Schmidt in the summer of 1985.  
 
              Furthermore, it is certainly not unusual for a 
 
              construction worker to be without work at the present 
 
              time in the state of Iowa.  As claimant has the burden 
 
              of persuasion, this aspect greatly lowers his 
 
              disability rating in this case.
 
         
 
         (Arbitration Decision, page 7)
 
         
 
              This statement indicates that the deputy considered 
 
         claimant's failure to seek other employment after voluntarily 
 
         leaving Schmidt to be a significant factor in evaluating 
 
         claimant's motivation.  Motivation is an appropriate 
 
         consideration in evaluating claimant's earning capacity and 
 
         industrial disability.
 
         
 
              Another factor in evaluating industrial disability is prior 
 
         work experience.  Claimant did not testify at the hearing about 
 
         his work experience prior to becoming a union carpenter.  No 
 
         evidence concerning claimant's prior work history appears 
 
         anywhere else in the record.  The failure of claimant to produce 
 
         such evidence makes it more difficult to determine claimant's 
 
         industrial disability.
 
         
 
              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 in determining industrial disability 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 
 

 
         
 
         
 
         
 
         WILSON V. SCHMIDT CONSTRUCTION CO.
 
         Page   4
 
         
 
         
 
         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).
 
         
 
              The deputy's analysis of the extent of claimant's industrial 
 
         disability is found to be accurate.
 
         
 
              The findings of fact, conclusions of law, and order of the 
 
         deputy are adopted herein.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant is a credible witness.
 
         
 
              2.  Claimant was in the employ of Schmidt at all times
 
              material herein.
 
         
 
              3.  While employed at Schmidt, claimant was a union 
 
         carpenter performing duties in which he was required to work 
 
         above ground level with additional labor-type duties involving 
 
         strenuous work and heavy lifting.
 
         
 
              4.  On August 22, 1984, while performing his work at 
 
         Schmidt, claimant injured his left shoulder and both arms.
 
         
 
              5.  As a result of the work injury to claimant's left 
 
         shoulder, claimant has suffered a significant impairment to his 
 
         body as a whole.
 
         
 
              6.  Prior to the work injury, claimant was in excellent 
 
         health and had no physical impairments or disabilities.
 
              7.  Prior to the work injury, claimant was able to fully 
 
         perform work involving strenuous activity and heavy lifting with 
 
         little or no problem.
 
         
 
              8.  At the present time due to his work injury, claimant is 
 
         restricted by his physicians from strenuous work, heavy lifting, 
 
         and working above ground level.
 
         
 
              9.  As a result of his functional impairment and physical 
 
         restrictions caused by the work injury, claimant is unable to 
 
         fully perform his normal work activity as a union carpenter.
 
         
 
              10.  Claimant has suffered a significant loss in actual 
 
         earnings from his current unemployment but this loss is only 
 
         partly due to the work injury.
 
         
 
              11.  After the work injury, claimant was able to return to 
 
         work and earn the same amount of money he earned at the time of 
 
         the work injury due to accommodations made by claimant's 
 
         superiors and his fellow employees.
 
         
 
              12.  After a four month period of work following the work 
 
         injury, claimant voluntarily left his employment at Schmidt for 
 
         reasons unrelated to his work injury.
 
         
 
              13.  Claimant has made no effort to secure employment as a 
 

 
         
 
         
 
         
 
         WILSON V. SCHMIDT CONSTRUCTION CO.
 
         Page   5
 
         
 
         
 
         union carpenter or in any other endeavor since the fall of 1985.
 
         
 
              14.  Claimant is 35 years of age and his loss of earnings 
 
         from his physical handicaps are less than would be the case for 
 
         an older individual.
 
         
 
              15.  Claimant has a high school education and exhibited
 
         average intelligence at the hearing.
 
         
 
              16.  As the result of his work injury on August 22, 1984, 
 
         claimant has suffered a loss of earning capacity in the amount of 
 
         15 percent.
 
         
 
              17.  Pursuant to the parties' stipulation, as a result of 
 
         his work injury, claimant was absent from work for treatment of 
 
         his work injury from August 23, 1984 through June 5, 1985 and 
 
         claimant received all weekly healing period benefits to which he 
 
         is entitled for this period of time.
 
         
 
              18.  Pursuant to the parties' stipulation, claimant's rate 
 
         of weekly compensation is $242.96 per week.
 
         
 
         
 
         
 
         
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that the injury of August 22, 1984 is a cause of permanent 
 
         disability.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits in the 
 
         amount of 75 weeks.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant seventy-five (75) 
 
         weeks of permanent partial disability benefits at the rate of two 
 
         hundred forty-two and 96/100 dollars ($242.96) per week from June 
 
         6, 1985.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of the arbitration 
 
         proceeding and claimant shall pay the costs of the appeal 
 
         including the transcription of the hearing proceeding.
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as required by this agency pursuant to Division of 
 

 
         
 
         
 
         
 
         WILSON V. SCHMIDT CONSTRUCTION CO.
 
         Page   6
 
         
 
         
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 1st day of September, 1987.
 
         
 
         
 
                                            DAVID E LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
              Copies To:
 
         
 
              Mr. James P. Hoffman
 
              Attorney at Law
 
              Middle Road
 
              Keokuk, Iowa 52632-1066
 
         
 
              Mr.  Larry L. Shepler 
 
              Attorney at Law 
 
              111 East Third Street 600 
 
              Tjnion Arcade Bldg.  
 
              Davenport, Iowa 52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803
 
                                                 Filed September 1, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         _
 
         HARVEY WILSON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File No. 773666
 
         SCHMIDT CONSTRUCTION CO.,
 
                                                 A P P E A L
 
              Employer,
 
                                               D E C I S I 0 N
 
         and
 
         
 
         BITUMINOUS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.40 - 1803
 
         
 
              Extent of industrial disability was in issue on appeal.  
 
         Deputy properly considered claimant's failure to seek other 
 
         employment and claimant's failure to testify about his work 
 
         experience prior to becoming a union carpenter as significant 
 
         factors in evaluating claimant's industrial disability.  
 
         Affirmed.
 
 
 
 
            
 
 
 
            
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS R. NIICHEL,
 
         
 
              Claimant,                                File No. 773675
 
         
 
         vs.                                        A R B I T R A T I O N
 
         
 
         DEPT. OF TRANSPORTATION,                      D E C I S I O N
 
         
 
              Employer,
 
                                                          F I L E D
 
         and
 
                                                         JAN 25 1989
 
         STATE OF IOWA,
 
                                                     INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a  proceeding in arbitration brought by Thomas R. 
 
         Niichel against the Department of Transportation, his employer, 
 
         and the State of Iowa.  The case was heard and fully submitted at 
 
         Mason City, Iowa on May 24, 1988.  The record in this proceeding 
 
         consists of testimony from Thomas R. Niichel, Keith Stacy, Evan 
 
         Johnstone and Thomas Hall.  The record also contains joint 
 
         exhibits 1 through 17.
 
         
 
                                     ISSUES
 
         
 
              Claimant seeks compensation for permanent partial disability 
 
         as a result of the injury to his back which he sustained on June 
 
         29,1984.  The only issue for determination is the extent of 
 
         Niichel's entitlement to compensation for permanent partial 
 
         disability.  It was stipulated that claimant has been paid his 
 
         entitlement to compensation for healing period at the stipulated 
 
         rate of $259.47 per week and that the commencement date for 
 
         permanent partial disability benefits is March 2, 1987.
 
         
 
                          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.
 
         
 
              The summary of evidence in this case is quite brief.  All the 
 
         witnesses who testified were perceived to be fully credible.  
 
         There is no material variance in the evidence that any of them 
 
         have submitted.  Claimant's description of his symptoms and 
 
                                                
 
                                                         
 
         residual complaints is accepted as being correct.  There is no 
 
         material dispute in this case with regard to any of the 
 
         evidentiary facts. It is only the ultimate determination of the 
 
         extent of industrial disability that is in dispute.
 
         
 
              Thomas R. Niichel is a 39-year-old, married man.  He is a 
 
         high school graduate and a graduate of the Iowa Law Enforcement 
 
         Academy.  He has taken a number of short courses related to his 
 
         current field in law enforcement.
 
         
 
              Claimant began working for the Department of Transportation 
 
         in May of 1968 as a maintenance worker.  In 1977, he became a 
 
         motor vehicle officer 1.  He remains in that same position and 
 
         has received the normal pay increases associated with that 
 
         position, both prior to and since his injury.  The duties of a 
 
         motor vehicle officer 1 are described in exhibit 15.  In general, 
 
         the duties include checking trucks for compliance with state and 
 
         federal laws regarding weight, permits, registration and safety 
 
         equipment.  The duties are performed either by patrolling in a 
 
         marked vehicle or by working in a weigh station.
 
         
 
              On or about June 29, 1984, Niichel injured his back while 
 
         performing the duties of his employment.  Over the following 
 
         period of approximately two years, he received various types of 
 
         medical care for his back.  There were several times when he was 
 
         off work due to his back injury.  When conservative treatment did 
 
         not resolve his symptoms, Niichel was referred to the Institute 
 
         for Low Back Care at Minneapolis, Minnesota.  After undergoing 
 
         comprehensive diagnostic tests, he was diagnosed as having facet 
 
         joint instability and a bulging L5-S1 lumbar disc.  On June 26, 
 
         1986, Niichel underwent surgery consisting of incision for 
 
         bilateral trans-facet decompression with removal of herniated 
 
         nucleus pulposus, trans-facet stabilization with exogenous bone 
 
         dowels, posterior lumbar intertransverse fusion, L5-S1, 
 
         bilateral, fat grafting and a morphine catheter for 
 
         post-operative pain control (exhibit 11, pages 28 and 29).  
 
         Niichel recuperated until he was released to return to work 
 
         without restriction on January 29, 1987 (exhibit 8).  Charles D. 
 
         Ray, M.D., the associate medical director at the institute and 
 
         claimant's surgeon, rated him as having a 15% permanent 
 
         functional impairment of the body as a whole (exhibit 12).  Barry 
 
         Lake Fischer, M.D., had previously rated claimant as having an 
 
         identical impairment on March 24, 1986 prior to the time the 
 
         surgery had been performed (exhibit 1).
 
         
 
              Claimant has resumed the full performance of his duties as a 
 
         motor vehicle officer 1.  He has been able.to perform all of the 
 
         duties and is not a complainer.  Claimant does suffer from 
 
         discomfort, pain and stiffness as he described.  Claimant is, 
 
         however, unable to perform a number of activities which he 
 
         performed prior to the time of his injury in his nonemployment 
 
         life.  It is essential that he perform the exercises recommended 
 
         by his physicians in order for him to retain his current level of 
 
         abilities and activities.  He is particularly bothered by 
 
         activities such as sitting in his patrol car and twisting or 
 
                                                
 
                                                         
 
         bending when he inspects trucks.  By the end of a workday, he has 
 
         considerable pain in his right foot, leg and back.  He takes a 
 
         hot bath nearly every day after work in order to relieve his 
 
         pain.  If he has a particularly bad day, an occurrence which he 
 
         estimated to occur approximately three times per week, he takes 
 
         another hot bath before bedtime.
 
         
 
              Claimant has skills in carpentry and auto mechanics, but the 
 
         condition of his back severely limits his ability to use those 
 
         skills.  Claimant stated that he formerly cut wood to heat his 
 
         home, but is unable to do so currently.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203,N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d,143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Thomas R. Niichel is an obviously intelligent, well 
 
         motivated and valuable employee of the Department of 
 
         Transportation.  He continues to perform the duties of his job 
 
         despite the fact that the job aggravates his back.  The fact that 
 
         he has been retained in this employment is quite beneficial to 
 
         both claimant and the employer.  If claimant were forced to leave 
 
         his current employment, he would likely be unable to find jobs 
 
                                                
 
                                                         
 
         which would provide a comparable level of earnings.  He is unable 
 
         to perform a number of types of employment for which he has the 
 
         skills and aptitude, due to the condition of his back.  At the 
 
         present time, Niichel has not experienced the reduction in 
 
         earnings which he would likely experience if he were to lose his 
 
         current job or if the duties of the job were substantially 
 
         changed.  While state employment usually provides a relatively 
 
         high degree of job security, it is, nevertheless, subject to 
 
         reorganizations, reassignments and changes in job classifications 
 
         and job duties. The chance of claimant involuntarily losing his 
 
         current job is, however, minimal.  State employment has many 
 
         positions which are somewhat unique and for which there is no 
 
         counterpart in the civilian workforce.  Claimant would likely 
 
         have a substantial degree of difficulty finding a job in the 
 
         private sector which had duties and working conditions comparable 
 
         to those of a motor vehicle officer.  In any event, industrial 
 
         disability is a measure of a person's general loss of earning 
 
         capacity.  It is not identical to the change in earnings, or lack 
 
         thereof, in any particular occupation.  Likewise, industrial 
 
         disability is not necessarily identical to a physical impairment 
 
         rating.  In some cases, the industrial disability exceeds the 
 
         physical impairment, while in others the physical impairment 
 
         exceeds the degree of industrial disability.  Pain and suffering 
 
         are not elements of recovery in a workers' compensation case.  
 
         When all the material factors of industrial disability are 
 
 
 
                       
 
                                                         
 
         considered, it is determined that Thomas R. Niichel sustained a 
 
         15% permanent partial disability as a result of the injuries he 
 
         sustained on June 29, 1984.  This entitles him to receive 75 
 
         weeks of compensation for permanent partial disability at the 
 
         stipulated weekly rate.
 
         
 
              This case presents an excellent example of an employer 
 
         assisting an injured employee to receive the best possible 
 
         medical care in order to achieve the best possible medical result 
 
         from the treatment.  Both the claimant and the employer are to be 
 
         commended for the manner in which they have conducted themselves 
 
         in regard to this injury and the resulting occurrences.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Thomas R. Niichel and all the other witnesses who 
 
         testified at the hearing provided testimony which was accurate.
 
         
 
              2.  Thomas R. Niichel has continued to work in his 
 
         occupation of a motor vehicle officer 1 without any reduction in 
 
         his rate of earnings and without being unable to perform any of 
 
         the duties of the position.
 
         
 
              3.  Thomas R. Niichel experiences pain and discomfort from 
 
         his work activities.  He is unable to perform a number of 
 
         activities which would provide viable employment alternatives to 
 
         the position in which he is currently engaged.
 
         
 
              4.   Thomas R. Niichel has experienced a 15% loss of earning 
 
         capacity as a result of the injury he sustained on June 29, 
 
         1984.
 
         
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Thomas R. Niichel has a 15% permanent partial disability 
 
         under the provisions of Code section 85.34(2)(u) which entitles 
 
         him to receive 75 weeks of compensation.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         seventy-five (75) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred fifty-nine and 
 
         47/100 dollars ($259.47) per week payable commencing March 2, 
 
         1987.
 
         
 
              IT IS FURTHER ORDERED that defendants are entitled to credit 
 
         for all amounts of permanent partial disability that have been 
 
         previously paid and any unpaid amounts shall be paid to claimant 
 
         in a lump sum together with interest pursuant to Iowa Code 
 
         section 85.30 computed on each payment from the date it came 
 
                                                
 
                                                         
 
         due.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 
         
 
              Signed and filed this 25th day of January, 1989.
 
         
 
         
 
                              
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Patrick A. Tallon
 
         Attorney at Law
 
         25 East Washington Street
 
         Suite 825
 
         Chicago, Illinois  60602
 
         
 
         Mr. Robert P. Ewald
 
         Assistant Attorney General
 
         Iowa Department of Transportation
 
         800 Lincoln Way
 
         Ames, Iowa  50010
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
             
 
              
 
                                            1402.40, 1803
 
                                            Filed January 25, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS R. NIICHEL,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 773675
 
         DEPT. OF TRANSPORTATION,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant is a 39-year-old motor vehicle officer who 
 
         sustained a back injury.  He was rated as having a 15% permanent 
 
         impairment, but was released to perform the duties of his 
 
         employment without restriction.
 
         
 
              Following recuperation from surgery, claimant resumed the 
 
         duties of his employment and has continued to perform them, 
 
         albeit with discomfort.  Claimant has experienced no reduction in 
 
         his rate of earnings and no apparent reduction in his 
 
         opportunities for advancement with his current employer.  
 
         Claimant awarded 15% permanent partial disability.