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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JON JEFFRY WERLE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 782450
 
                                          :
 
            HAWKEYE WHOLESALE GROCERY     :      A R B I T R A T I O N
 
            CO., INC.,                    :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY CORP.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed October 22, 1986.  Claimant sustained a work 
 
            injury through electrical shock on December 13, 1984.  He 
 
            now seeks benefits under the Iowa Workers' Compensation Act 
 
            from defendant employer Hawkeye Wholesale Grocery and 
 
            defendant insurance carrier Bituminous Casualty Corporation.
 
            
 
                 Hearing on the arbitration petition was had in Cedar 
 
            Rapids, Iowa, on October 12, 1989.  The record consists of 
 
            joint exhibits 1 through 31, defendants' exhibits A through 
 
            G (in disregard of the hearing assignment order's injunction 
 
            that every reasonable effort should be made to avoid 
 
            duplication, many of these exhibits consist of multiple 
 
            copies of the same documents) and the testimony of the 
 
            following witnesses:  claimant, Jim Olson, Marte Werle and 
 
            Paul Rogers.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment with Hawkeye 
 
            Wholesale Grocery Company ("Hawkeye") on December 13, 1984; 
 
            that the injury caused temporary disability for which 
 
            claimant seeks no further compensation; that if claimant has 
 
            sustained a permanent disability, it is an industrial 
 
            disability to the body as a whole and the commencement date 
 
            for benefits should be April 15, 1986; that the appropriate 
 
            rate of weekly compensation is $269.96.
 
            
 
                 Issues presented for resolution include:  whether the 
 
            work injury caused permanent disability and the extent 
 
            thereof; the extent of claimant's entitlement to medical 
 
            benefits; taxation of costs.
 

 
            
 
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                 With respect to medical benefits under Iowa Code 
 
            section 85.27, the parties stipulated that the provider of 
 
            services would testify that fees were reasonable and 
 
            necessary and defendants offered no contrary evidence, but 
 
            it is disputed whether those expenses were incurred for 
 
            reasonable and necessary medical treatment, whether they are 
 
            causally connected to the work injury and whether they were 
 
            authorized by defendants.
 
            
 
                 Claimant also seeks compensation for two independent 
 
            medical examinations under Iowa Code section 85.39.  In all, 
 
            three such examinations were conducted.  Deputy Industrial 
 
            Commissioner Helenjean Walleser ruled on January 9, 1989 
 
            that section 85.39 speaks of an examination by "a 
 
            physician," and does not contemplate multiple examinations; 
 
            defendants were ordered to reimburse claimant for the 
 
            reasonable expenses of one such examination, but not all 
 
            three.  It has long been the policy of the industrial 
 
            commissioner that no deputy has authorization to review the 
 
            rulings of a fellow deputy.  Therefore, even though the 
 
            parties have presented entitlement to additional 85.39 
 
            examinations as an issue, it shall not be considered in this 
 
            decision.  It might be noted that although the hearing 
 
            assignment order does not list section 85.39 as an issue, 
 
            the prehearing conference notes do; the omission is merely a 
 
            scrivener's error.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, a 1975 high school graduate, was born on 
 
            September 25, 1956 and was 33 years of age on the date of 
 
            hearing.  He later attended classes in the repair of General 
 
            Motors automobiles, but has no further formal education.
 
            
 
                 After graduating from high school, claimant worked with 
 
            his brother-in-law in an automobile body shop for 
 
            approximately four to five years, and then for a time 
 
            working on miscellaneous repairs for an enterprise known as 
 
            Old Capitol Motors.  Claimant began working for Hawkeye in 
 
            1980 and remained so employed at hearing.  Hawkeye is a 
 
            wholesale grocery business.  Prior to the work injury, 
 
            claimant worked as a grocery loader and freezer picker.  The 
 
            work involved a good deal of lifting and also working at 
 
            heights.  Claimant worked with a battery operated "mule," a 
 
            device functioning somewhat like a forklift truck.
 
            
 
                 The work injury occurred when the rechargeable battery 
 
            on claimant's mule became low on power.  Claimant proceeded 
 
            to a battery storage area and apparently attempted to unplug 
 
            either a replacement battery or another mule, but in any 
 
            event suffered a severe electrical shock.  Shortly 
 
            thereafter, fellow employee Jim Olson discovered claimant 
 
            while proceeding to the break room.  Amidst clouds of smoke, 
 
            claimant was found on his back, not breathing or conscious, 
 
            and with his eyes open and staring fixedly.  Fortunately, 
 
            Olson was able to revive claimant through the use of 
 

 
            
 
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            cardiopulmonary resuscitation techniques.  Olson described 
 
            claimant as very near death, unable to speak, and noticed 
 
            that his face appeared dark and discolored.
 
            
 
                 An ambulance was summoned and claimant was taken to 
 
            Mercy Hospital in Iowa City, Iowa.  He presented in no acute 
 
            distress and behaving appropriately.  No entrance or exit 
 
            wounds were noted.  Cervical spine films of the same date 
 
            were negative as to evidence of fracture, dislocation or 
 
            subluxation.
 
            
 
                 Claimant was discharged on December 15 by V. G. 
 
            Edwards, M.D.  Dr. Edwards' discharge summary noted 
 
            claimant's initial complaints of pain in the shoulders, 
 
            particularly on the left side, the right abdominal muscles, 
 
            the left anterior thigh above the knee and the bottom of the 
 
            left foot.  On discharge, claimant was still tender and 
 
            painful above the left knee and at the bottom of the left 
 
            foot.  Claimant also complained of a mild tenderness in the 
 
            occipital area of the skull.  Dr. Edwards' impression was of 
 
            electrical shock with unconsciousness and probable muscle 
 
            necrosis from the path of current.
 
            
 
                 Claimant was shortly referred to a board-certified 
 
            neurologist, James Worrell, M.D.  Dr. Worrell referred 
 
            claimant to clinical psychologist Frank Gersh, Ph.D., for 
 
            psychological evaluation.  Dr. Gersh wrote on February 12, 
 
            1985 of his impression:  (1) organic affective disorder; (2) 
 
            panic disorder secondary to number one; (3) developmental 
 
            dyslexia; (4) modest IQ loss and some difficulty on 
 
            constructional tasks most probably secondary to poor 
 
            concentration and depression.  Dr. Gersh estimated 
 
            claimant's premorbid performance IQ score at approximately 
 
            105 and his premorbid verbal IQ score at approximately 90.  
 
            He measured verbal IQ on the Weschler Adult Intelligence 
 
            Scale--R as 81 and performance as 96.
 
            
 
                 Dr. Worrell followed claimant throughout 1985.  His 
 
            notes reflect that claimant complained of memory 
 
            difficulties slowly resolving, but worsening headaches and 
 
            back pain.  Claimant did not sleep well, gained substantial 
 
            weight and began drinking alcohol excessively.  Dr. Worrell 
 
            performed electroencephalography and electromyography on 
 
            February 25, 1985.  EEG was normal and EMG showed a very 
 
            modest relative slowing of the ulnar conductions at the 
 
            elbow, but within normal limits.
 
            
 
                 On January 30, 1985, Dr. Worrell wrote of his view that 
 
            claimant had a definite organic brain syndrome which was 
 
            most likely related to hypoxia secondary to the cardiac 
 
            arrest rather than the direct effects of the electrical 
 
            injury.
 
            
 
                 Claimant returned to see Dr. Gersh in July, 1985, 
 
            because he was making slow progress from his depression even 
 
            though Dr. Worrell switched medications.  Complaints were 
 
            made of depressed mood, tiredness, nightmares, sleep 
 
            disturbance, decreased sex drive, panic attacks, decreased 
 
            appetite, decreased memory and concentration and retarded 
 
            stream of thought.  Dr. Gersh added probable temporal lobe 
 

 
            
 
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            seizures to his earlier impression and made an appointment 
 
            for claimant to see a psychiatrist, Vernon P. Varner, M.D.
 
            
 
                 Dr. Varner saw claimant on July 18, 1985.  Initial 
 
            impression was of organic affective syndrome, organic 
 
            personality syndrome and temporal lobe seizure disorder.  
 
            Dr. Varner prescribed an anticonvulsant medication, 
 
            Tegretol, which gradually proved effective, and continued to 
 
            see claimant on a scheduled basis.
 
            
 
                 Claimant was seen for evaluation at the University of 
 
            Iowa Hospitals and Clinics on January 21, 1986.  Robert L. 
 
            Rodnitzky, M.D., and Steve Geisler, M.D., both of the 
 
            Department of Neurology, wrote on February 11 of that year 
 
            of an impression and diagnosis of multiple somatic and 
 
            behavioral symptoms following electrical shock and 
 
            recommending neurobehavior testing.  Physical examination 
 
            showed diffuse right upper quadrant pain to palpation on the 
 
            abdominal exam, decreased sensation to light touch on the 
 
            right side of the face, decreased sensation to pin prick in 
 
            both arms except in the median nerve distribution, decreased 
 
            sensitivity to pin prick in the right leg except for a small 
 
            area on the right lateral calf and decreased sensation to 
 
            vibration in the upper extremities; the examination 
 
            otherwise appeared normal.  The physicians found no cause 
 
            for claimant's multiple symptoms and advised him to return 
 
            on a "PRN" (as necessary) basis on February 11, 1986.
 
            
 
                 Radiographic studies of the lumbar and cervical spine 
 
            were seen as normal.
 
            
 
                 While at the University of Iowa Hospital, claimant was 
 
            seen by D. Tranel, Ph.D., on January 21.  Dr. Tranel's notes 
 
            reflect that he found claimant to be of low average to 
 
            average intellect (WAIS-R verbal IQ = 88; performance IQ = 
 
            99).  Verbal learning and memory appeared entirely normal.  
 
            Speech and language, visual perception and orientation were 
 
            all seen as normal.  Minnesota Multiphasic Personality 
 
            Inventory profile suggested rather marked distress and 
 
            psychological discomfort and the entire profile was rather 
 
            elevated, suggesting endorsement of a wide range and extent 
 
            of psychopathology.  Acute and profound situational stress 
 
            was apparent, along with an admixture of hysterical and 
 
            hypochondriacal tendencies.  Dr. Tranel indicated that he 
 
            was unconvinced regarding claimant's memory complaints, 
 
            which were probably a "functional amnesia."  Cognitive 
 
            deficits in any sphere were not apparent and a successful 
 
            return to gainful employment was predicted.
 
            
 
                 After reviewing these records, Dr. Varner noted in his 
 
            chart on April 1, 1986 that it was too bad Dr. Tranel could 
 
            not have seen claimant when he was profoundly disturbed.  
 
            With rather uncommon candor, he noted a belief that "this is 
 
            a ridiculous piece of work."  He felt the MMPI and WAIS are 
 
            simply grossly inadequate in attempting "to test this man 
 
            who had a clear insult."
 
            
 
                 On November 26, 1985, Dr. Varner had written to 
 
            defendant Bituminous of his belief that claimant had a 
 
            profound frontal lobe dysfunction and motivational syndrome 
 

 
            
 
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            with lack of initiative, indifference, poor grooming, and 
 
            that all the symptoms were consistent with brain damage.  
 
            Dr. Varner further noted that he had previously met and 
 
            interviewed claimant with respect to another member of his 
 
            extended family and noticed a remarkable change in claimant 
 
            compared to his earlier condition.  He described claimant as 
 
            certainly markedly disabled and believed his outlook to be 
 
            grim unless the seizure disorder could be controlled.
 
            
 
                 On March 10, 1986, Dr. Varner wrote Bituminous to note 
 
            that claimant had not come close to maximal healing and was 
 
            unable to perform substantially the duties he performed 
 
            prior to the work injury.  Due to his organic brain 
 
            syndrome, claimant simply forgets appointments.  With 
 
            respect to claimant's prognosis, it was impossible to say 
 
            then, but claimant looked substantially better than he did 
 
            when he first visited.
 
            
 
                 Bituminous subsequently notified claimant that only Dr. 
 
            Rodnitzky was an authorized treating physician, even though 
 
            that physician planned no continued therapy and had released 
 
            claimant on a "PRN" basis.
 
            
 
                 Claimant was also seen from time to time by his family 
 
            physician, John Kelley, M.D.  Dr. Kelley's chart notes of 
 
            April 30, 1986 noted that when claimant had first been seen 
 
            prior to the injury in June, 1984, he seemed to be 
 
            emotionally normal, but that since that time he has seemed 
 
            mentally and emotionally abnormal.  He further commented 
 
            that he believed this to be a psychological or psychiatric 
 
            problem and specifically noted the temporal relationship 
 
            between the electrocution incident and claimant's behavioral 
 
            changes.
 
            
 
                 Claimant was seen on numerous occasions by Dr. 
 
            Worrell's associate, Richard F. Neiman, M.D.  He testified 
 
            by deposition on February 28, 1989.  Both physicians are 
 
            board-certified neurologists.
 
            
 
                 Dr. Neiman appears to be the only physician who has 
 
            imposed permanent medical restrictions on claimant.  Those 
 
            restrictions include avoiding hyperextension of the neck and 
 
            avoiding high places and working around equipment that might 
 
            cause danger in the event of a loss or alteration of 
 
            consciousness.  The latter situational restrictions were 
 
            based upon claimant's history of seizures close in time to 
 
            the injury (particularly sensing nonexistent odors) and 
 
            appear to be permanent, even though claimant has not 
 
            suffered from such "seizures" for a substantial time (and 
 
            made no complaint of such problems in his trial testimony).  
 
            It should be additionally noted that Dr. Neiman was aware 
 
            that claimant's current position with defendant involves 
 
            driving a service route and he gave no indication that he 
 
            was uncomfortable with claimant operating a motor vehicle 
 
            extensively in the course of his duties.
 
            
 
                 Dr. Neiman has assessed claimant's functional 
 
            impairment as a percentage of the body as a whole on a 
 
            number of occasions with a good bit of variation.  The most 
 
            recent assessment appears to be that of July 28, 1989, when 
 

 
            
 
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            he found that claimant had sustained a 17.5 percent 
 
            functional impairment.  Of that impairment rating, Dr. 
 
            Neiman attributed five percent to cervical problems.
 
            
 
                 As did Dr. Worrell, Dr. Neiman recommended physical 
 
            therapy and an extensive swimming regimen.
 
            
 
                 Dr. Neiman thought that claimant had a chronic cervical 
 
            strain or persistent cervical pain, but saw no evidence of 
 
            structural pathology.  A cervical myelogram in March, 1987 
 
            had revealed no significant abnormality in this physician's 
 
            view.
 
            
 
                 Psychologically, Dr. Neiman opined that claimant had 
 
            mild memory disturbance with impairment of the complex 
 
            integrated cerebral function, but with the ability to carry 
 
            out most of the activities of daily living.
 
            
 
                 As will be seen, John R. Walker, M.D., believed that 
 
            claimant had sustained compression fractures of the thoracic 
 
            spine resulting from the work injury.  Dr. Neiman saw 
 
            nothing as major as Dr. Walker would suggest at the time of 
 
            his deposition, and in his letter of July 28, 1989, after 
 
            reviewing x-rays in extensive depth, flatly stated that Dr. 
 
            Walker's diagnosis was in error.
 
            
 
                 Dr. Neiman also discussed an evaluation performed by 
 
            William R. McMordie, Ph.D., showing that claimant's adult 
 
            intelligence had increased very substantially since 
 
            evaluation by Dr. Gersh (to a full scale IQ of 114, a high 
 
            average).  He agreed with Dr. McMordie that claimant still 
 
            had some intellectual impairment, but nonetheless thought 
 
            him capable of doing college level academic work.  He 
 
            further noted that depression such as claimant was suffering 
 
            at the time of Dr. Gersh's testing can affect performance on 
 
            testing.  Claimant's improvement could be related either to 
 
            lifting of the depression or the brain's basic ability to 
 
            heal itself.
 
            
 
                 William R. McMordie, Ph.D., performed a 
 
            neuropsychological evaluation of claimant on December 17, 
 
            1988.  This was on referral by claimant's attorney.  He 
 
            found that claimant had many cognitive strengths and assets, 
 
            but did poorly on some tasks sensitive to frontal lobe 
 
            disturbance.  This combined with the clinical history 
 
            suggested an acquired disturbance associated with the work 
 
            injury.  It was possible that claimant might be experiencing 
 
            ongoing partial complex seizure activities.  He found no 
 
            evidence of overt malingering during the evaluation and 
 
            found that claimant had intellectual strengths capable of 
 
            meeting the academic demands of a return to college.
 
            
 
                 Allan Fedge, M.D., did a radiological examination on 
 
            Dr. Neiman's order on July 18, 1989.  He found osteopathic 
 
            and modest degenerative change of the dorsal spine, his 
 
            impression being a negative dorsal spine series.
 
            
 
                 Claimant was also seen for evaluation by John R. 
 
            Walker, M.D.  His report is dated December 9, 1988.  Dr. 
 
            Walker found claimant to be a bit on the "spacy" side and 
 

 
            
 
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            believed that he was magnifying his symptomatology with 
 
            respect to the cervical spine.  In addition, claimant's 
 
            complaints of "boot type" paresthesia from the knees down 
 
            bilaterally was impossible and suggested that he was either 
 
            hysterical or malingering, probably a combination of both.  
 
            He also noted an inconsistency in claimant's report of 
 
            numbness to one arm as opposed to both forearms and arms.
 
            
 
                 Dr. Walker's orthopaedic diagnosis was of:  (1) rather 
 
            marked sprain of the cervical spine responsible for 
 
            headaches; (2) mild to moderate compression fractures of C5 
 
            and C6; (3) a sprain in the general region of L3-4 and L4-5; 
 
            (4) possibility of some sensory disturbance or hypeesthesia 
 
            [sic] of the right upper extremity; (5) a boot-like 
 
            distribution of anesthesia of both lower extremities from 
 
            the knees down, probably on an hysterical or malingering 
 
            basis; (6) probable irritability and some loss of a normal 
 
            affect ("spaciness").
 
            
 
                 Dr. Walker believed that claimant had sustained an 8 
 
            percent impairment of the body as a whole based on the 
 
            cervical spine injury.  He felt that claimant had sustained 
 
            a permanent partial impairment of 14 percent of the body as 
 
            a whole based on two compression fractures of the thoracic 
 
            spine, T5 and T6 (his diagnosis of compression fractures at 
 
            C5 and C6 appears to be a scrivener's error).  He further 
 
            felt that claimant had suffered a permanent partial 
 
            impairment of the body as a whole in the amount of 4 percent 
 
            based on lumbar spine strain.  Dr. Walker did not attempt to 
 
            rate psychological or neurosis problems.
 
            
 
                 Claimant was also seen for evaluation by Marc E. Hines, 
 
            M.D.  Dr. Hines wrote on December 20, 1988 that claimant 
 
            might have some diffuse brain dysfunction secondary to the 
 
            hypoxic ischemic events that often surround electric shock 
 
            injury.  He referred to some compression fractures in the 
 
            neck, apparently based on a review of Dr. Walker's report.  
 
            Dr. Hines found definite sensory loss from approximately the 
 
            knees down bilaterally to pin prick, touch and temperature.  
 
            Unlike other physicians who found claimant to be strong or 
 
            extremely strong, Dr. Hines found claimant to be very mildly 
 
            weak for a patient of his age and stated condition.  In a 
 
            letter dated September 25, 1989, Dr. Hines noted claimant 
 
            continued to have considerable difficulties quite typical of 
 
            brain injuries in such a setting (i.e., difficulties with 
 
            memory, irritability and personality change).  He believed 
 
            these to be in keeping with findings on neuropsychological 
 
            testing which suggested frontal lobe injury.  He believed 
 
            that these types of difficulties typically affect a person's 
 
            insight, judgment, impulse control and mood modulation and 
 
            were significantly disabling to patients, particularly if 
 
            they have to move on to new or different jobs.  He generally 
 
            found that claimant had sustained a 25 percent impairment of 
 
            the whole person "based on the degree of difficulty that 
 
            this will give him for adaptability to future jobs and 
 
            circumstances."  Thus, it appears that Dr. Hines to some 
 
            extent seeks to rate industrial disability as opposed to 
 
            functional impairment.
 
            
 
                 Claimant returned to work with defendant, but not to 
 

 
            
 
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            the same job.  At first, he did some part-time work sweeping 
 
            floors and the like, but since April, 1986, has been 
 
            employed as a service technician.  This employment involves 
 
            servicing a vending machine route, cleaning and repairing 
 
            coffee and other machines.  This was actually a promotion, 
 
            as claimant now earns $9.21 per hour and warehouse employees 
 
            in his previous position currently earn $8.82 per hour.  
 
            However, claimant no longer has the opportunity to gain 
 
            incentives through speedy work, so his total earnings are 
 
            diminished.
 
            
 
                 Claimant currently complains of constant headaches, 
 
            spotty numbness in the arms, occasional heart palpitations, 
 
            stabbing pains in the back and neck, loss of range of motion 
 
            in the neck, lower backaches, inability to lift, temper 
 
            tantrums, and loss of the ability to concentrate.  He 
 
            apparently has a somewhat protected position in that his 
 
            supervisor has advised him to do only what he thinks he can 
 
            in his current job.
 
            
 
                 Jim Olson testified that claimant formerly was very 
 
            productive, enthusiastic and a very hard worker.  Although 
 
            he "quit" in 1986 and has not worked with claimant since 
 
            (Paul Rogers testified that Olson was discharged rather than 
 
            quit), he stated that claimant demonstrated a poor train of 
 
            thought and memory, lacked motivation and attention, was 
 
            occasionally incoherent and unresponsive, and was now 
 
            reserved and quiet, a follower not a leader.
 
            
 
                 Marte Werle, claimant's wife of 13 years, pointed out 
 
            that claimant formerly was easy going, not temperamental and 
 
            a hard worker, but is now short-tempered, short of memory, 
 
            spacy and forgetful, and unable to do heavy work as he 
 
            previously did.
 
            
 
                 Paul Rogers, although not claimant's direct supervisor, 
 
            has had the opportunity to see him at work.  He is the 
 
            assistant to defendant's president and has worked for 
 
            Hawkeye Wholesale Grocery for some 30 years.  He has not 
 
            noticed the various problems claimant complains of and 
 
            points out at least that claimant has not drawn complaints 
 
            from customers concerning forgetfulness, carelessness or 
 
            other problems in job performance.
 
            
 
                 It is established as fact that claimant has undergone a 
 
            personality change since the electrical injury.  Even if it 
 
            be conceded that claimant and his wife may have 
 
            self-interested motives in describing these changes, the 
 
            same cannot be said of Drs. Varner and Kelley, each of whom 
 
            knew claimant before the injury and noticed a personality 
 
            change.
 
            
 
                                conclusions of law
 
            
 
                 The parties stipulate that claimant sustained an injury 
 
            arising out of and in the course of his employment and that 
 
            the work injury caused temporary disability for which he has 
 
            been fully compensated.
 
            
 
                 The parties dispute whether the work injury caused 
 

 
            
 
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            permanent disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 
 
            13, 1984 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Drs. Rodnitzky and Geisler found no cause for 
 
            claimant's multiple symptoms.  They stand alone.  Every 
 
            other physician in this case finds that claimant has an 
 
            assortment of ailments caused by the work injury, including 
 
            cervical and thoracic spine problems and frontal lobe 
 
            disturbance problems directly stemming from the work injury.  
 
            The fact that claimant's measurable adult intelligence 
 
            improved very dramatically between when he was measured by 
 
            Dr. Gersh and by Dr. McMordie indicates that he was still in 
 
            a healing period at the time he was released on a "PRN" 
 
            basis by Drs. Rodnitzky and Geisler.  By far the more 
 
            persuasive medical evidence indicates that claimant 
 
            sustained permanent impairment of his cognitive functions 
 
            and mood and an ongoing soft tissue injury to the cervical 
 
            spine.
 
            
 
                 While Dr. Walker finds compression fractures to the 
 
            thoracic spine, a subsequent reading of x-rays by Drs. 
 
            Neiman and Fedge indicates otherwise.  It is held that 
 
            claimant has failed to meet his burden of proof in 
 
            establishing fractures to the thoracic spine.
 
            
 
                 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, expe
 
            rience 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 
 

 
            
 
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            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  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 dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Claimant has medical restrictions against 
 
            hyperextension of his neck and working in high places and 
 
            around dangerous mechanical equipment.  The latter two 
 
            restrictions were based upon his history of seizures, now 
 
            apparently well controlled.  Claimant is currently earning a 
 
            higher hourly wage than he was at the time of the injury, 
 
            but is not earning extra incentive monies.  He appears to be 
 
            foreclosed from his previous job because of the restriction 
 
            against working at heights.  Claimant is of an age and 
 
            intelligence suitable for extensive retraining, including 
 
            college attendance.  He currently is a high school graduate.  
 
            However, his ongoing mood and concentration problems may 
 
            reasonably be expected to have some impact on his future 
 
            career and his ability to seek and secure other employment.
 
            
 
                 Considering these factors in particular and the record 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            in general, it is held that claimant has sustained a 
 
            permanent partial disability equivalent to 20 percent of the 
 
            body as a whole, and is entitled to 100 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 Medical expenses for independent medical examinations 
 
            performed by Drs. McMordie and Hines can be awarded only 
 
            under Iowa Code section 85.39.  As previously noted, this 
 
            deputy does not have jurisdiction to review the order of 
 
            another deputy on this issue.
 
            
 
                 It is undisputed that Dr. Worrell is an authorized 
 
            physician.  He referred claimant to Dr. Gersh and Dr. Gersh 
 
            referred claimant to Dr. Varner.  Referral by an authorized 
 
            physician constitutes further authorization.  Limoges v. 
 
            Meier Auto Salvage, I Iowa Industrial Commissioner Report 
 
            207 (1981).  In addition, unauthorized treatment which 
 
            improves claimant's condition and which ultimately may 
 
            mitigate defendants' liability may subsequently be found 
 
            reasonable and necessary for treatment of an injury.  
 
            Butcher v. Valley Sheet Metal, IV Iowa Industrial 
 
            Commissioner Report 49 (1983); Rittgers v. United Parcel 
 
            Service, III Iowa Industrial Commissioner Report 210 (1982).
 
            
 
                 At the time Drs. Rodnitzky and Geisler released 
 
            claimant on a "PRN" basis, February 11, 1986, defendants 
 
            notified claimant that they would be the only authorized 
 
            physicians.  Claimant was thus caught in a "Catch 22" 
 
            situation.  The only authorized physicians found nothing 
 
            wrong with him and refused further treatment.  All of 
 
            claimant's further treatment was directed towards accurate 
 
            diagnoses and resultant treatment.  Claimant has in fact 
 
            improved under his subsequent "non-authorized" care.  Under 
 
            the circumstances presented in this case, defendants' 
 
            authorization defense fails.  Claimant shall be awarded his 
 
            medical expenses set forth in exhibits 27 through 31.
 
            
 
                 Claimant also seeks mileage expenses as set forth in 
 
            exhibit 24.  Mileage to Dr. Hines and Dr. McMordie is 
 
            disallowed because it was accrued for examinations under 
 
            Iowa Code section 85.39.  The major expenses, mileage to the 
 
            Roadway and Coralville pools, came about because of the 
 
            recommendations of two authorized physicians, Drs. Neiman 
 
            and Worrell.  However, claimant's alleged mileage appears to 
 
            be merely an estimate and lacks sufficient specificity to 
 
            support an award.  Other mileage in exhibit 24 shall be 
 
            allowed, totalling 1,900 miles.  At $.21 per mile, claimant 
 
            shall be awarded $399.00.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred sixty-nine and 96/100 dollars 
 
            ($269.96) per week commencing April 15, 1986 and totalling 
 
            twenty-six thousand nine hundred ninety-six and 00/100 
 
            dollars ($26,996.00).
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 As all weekly benefits have accrued, they shall be paid 
 
            in a lump sum together with statutory interest thereon 
 
            pursuant to Iowa Code section 85.30.
 
            
 
                 Defendants shall pay medical expenses set forth in 
 
            joint exhibits 27, 28, 29, 30 and 31.
 
            
 
                 Defendants shall pay claimant mileage associated with 
 
            his medical expenses totalling three hundred ninety-nine and 
 
            00/100 dollars ($399.00).
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jack C. Paige
 
            Attorney at Law
 
            700 Higley Building
 
            P.O. Box 1968
 
            Cedar Rapids, Iowa  52406-1968
 
            
 
            Mr. C. Peter Hayek
 
            Attorney at Law
 
            120 1/2 East Washington Street
 
            Bremer Building
 
            Iowa City, Iowa  52240
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1402.40; 2204; 2501; 2502
 
                           2906; 3101
 
                           Filed November 26, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JON JEFFRY WERLE,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 782450
 
                                          :
 
            HAWKEYE WHOLESALE GROCERY     :      A R B I T R A T I O N
 
            CO., INC.,                    :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            BITUMINOUS CASUALTY CORP.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2502; 2906
 
            Where another deputy had earlier ruled that claimant was 
 
            entitled to only a single 85.39 examination, hearing deputy 
 
            declined to address the issue, even though listed on the 
 
            Hearing Assignment Order and presented by the parties.
 
            
 
            1402.40; 2204
 
            Electrical shock with hypoxia secondary to cardiac arrest 
 
            was found to have caused permanent injury, especially 
 
            frontal lobe brain damage with personality change.  Two 
 
            physicians found claimant's personality to have changed (and 
 
            had known claimant prior to the injury).  Twenty percent 
 
            industrial disability awarded.
 
            
 
            3101; 2501
 
            Two physicians recommended swimming as rehabilitative 
 
            therapy for electrical shock victim.  However, mileage 
 
            expenses were not awarded because they appeared to be 
 
            estimates and insufficiently specific to support an award.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         STEVEN J. WARD,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 782489
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                  A R B I T R A T I O N
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              This is a proceeding in arbitration brought by Steven J. 
 
         Ward against Lehigh Portland Cement Company, his former employer, 
 
         and its insurance carrier, The Travelers Insurance Company.
 
         
 
              The case was heard and fully submitted on January 5, 1988 at 
 
         Mason City, Iowa.  The record in this proceeding consists of 
 
         testimony from Steven J. Ward and Louis Fazeen.  The record also 
 
         contains joint exhibits 1 through 15, 17 through 23 and 
 
         defendants' exhibit 16.
 
         
 
                                      ISSUES
 
         
 
              The claimant seeks compensation for permanent partial 
 
         disability of the body as a whole based upon an injury that 
 
         occurred on or about December 8, 1984.  The issues presented for 
 
         determination are whether the injury is an injury to the body as 
 
         a whole or a scheduled member injury and determination of the 
 
         degree of disability, if any, that has resulted.
 
         
 
              All other matters of potential dispute in the case were 
 
         resolved by stipulation of the parties as reflected in the 
 
         pre-hearing report.
 
         
 
                             REVIEW OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  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.
 
         
 
              Steven J. Ward is a 30-year-old, right-handed, married man 
 
         with two children.  Ward currently lives in Cody, Wyoming, having 
 
         moved to the state of Wyoming in July of 1986.
 
         
 
              Claimant graduated from a small high school in the Mason 
 
         City, Iowa area in 1976, but he has no further formal education 
 
         or technical training.
 
         
 
              While in high school, Ward worked on a dairy farm.  After 
 
         high school, he worked for an excavating contractor and then 
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   2
 
         
 
         
 
         became employed by Lehigh Portland Cement Company in mid-1976 on 
 
         a part-time basis.  The employment became full-time in January, 
 
         1977.
 
         
 
              Claimant testified that he performed heavy work at Lehigh, 
 
         including operating a jackhammer, shovel and wheelbarrow and 
 
         performing heavy maintenance.
 
         
 
              Ward testified that he injured his lower back in 1978.  He 
 
         stated that, in 1980, he injured his low back and right shoulder. 
 
          Claimant stated that he received treatment for the injury for a 
 
         couple of months and that the pain in his back and shoulder 
 
         resolved.  He was, however, left with an audible, but painless, 
 
         snapping in his right shoulder.  Claimant stated that he was able 
 
         to perform all the physical requirements of his job without pain 
 
         or discomfort until he was injured again in December, 1984.
 
         
 
              Claimant testified that, in December, 1984, he was assigned 
 
         to keep rock flowing through the discharge chutes of a conveyor 
 
         belt system.  Claimant stated that the work required that he walk 
 
         down an incline and that, in doing so, he slipped, grabbed the 
 
         handrail and felt a tearing, ripping sensation in his right 
 
         shoulder.  Claimant related that he reported the incident to his 
 
         supervisor, but completed the shift as it was nearly over.  
 
         Claimant stated that he worked the next day, but that, at the end 
 
         of the shift, he sought treatment from David A. Ruen, M.D., where 
 
         he had been sent by the employer.  Claimant testified that he was 
 
         off work for three or four weeks and was released to return on 
 
         December 28, 1984, but did not actually return until early 
 
         January, 1985.
 
         
 
              Claimant testified that, when he returned to work, he felt 
 
         good, but that he was under medication and could do nearly 
 
         everything that was asked if he took it easy.  Claimant related 
 
         having more trouble with his shoulder in February and that he 
 
         also exacerbated the problem on another occasion.  Claimant 
 
         stated that he saw the doctor frequently for the condition, but 
 
         the pain did not resolve.  Claimant testified that he was laid 
 
         off in May, 1985 as part of a general layoff, while he was still 
 
         under a doctor's care for his shoulder and had developed 
 
         headaches.
 
         
 
              Claimant related that he was referred to and examined by 
 
         Wayne Janda, M.D., D. E. Fisher, M.D., Sant M. S. Hayreh, M.D., 
 
         and at the Mayo Clinic.  He stated that he developed numbness and 
 
         tingling in his right arm.
 
         
 
              Claimant testified that, while he was laid off, he sought 
 
         other work, but was unable to find any until July of 1986 when he 
 
         obtained a job as a ranch hand at Manderson, Wyoming.  Claimant 
 
         drew unemployment for the one year while he was laid off before 
 
         moving to Wyoming.  Claimant testified that the ranch work was 
 
         physically much easier than the work at Lehigh, but that bouncing 
 
         such as when riding a horse, repetitive movements, hammering, 
 
         handling bales of hay and activities performed above shoulder 
 
         level aggravate his shoulder.
 
         
 
              Claimant testified that, at the ranch, he earned $800 per 
 
         month and was provided with a trailer house in which to live, but 
 
         that he had no other fringe benefits.  He stated that, in 
 
         November, he took a job with a framing contractor which pays 
 
         $8.00 per hour, but with no fringe benefits.  He stated that most 
 
         of the work is done using a nail gun, rather than a hammer.  
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   3
 
         
 
         
 
         Claimant testified that he is able to do the work, but 
 
         experiences pain and discomfort.  He had been so employed for 
 
         only three weeks at the time of hearing.
 
         
 
              Claimant testified that, in September, 1986, he was 
 
         contacted by Ron Guthrie and recalled to work from the layoff at 
 
         Lehigh.  Claimant stated that he declined to return to Lehigh 
 
         because of moving expenses, a lack of any assurance as to how 
 
         long work would continue to be available and also because he was 
 
         uncertain of his ability to perform the work.  Claimant related 
 
         that exhibit 16, which also makes note of a labor-management 
 
         dispute, is a reasonably accurate representation of their 
 
         conversation.  Claimant's employment with Lehigh was terminated 
 
         as a result of his failure to return to work when recalled 
 
         (exhibit 17).
 
         
 
              Claimant testified with regard to the condition of his 
 
         shoulder.  He testified that the condition has not improved and, 
 
         if anything, has worsened.  He stared that working above the 
 
         shoulder, such as turning a light bulb, is a notable aggravation.  
 
         He identified using a screwdriver or prying as other 
 
         aggravations.  He stated that he can move his shoulder through a 
 
         full range of motion, but that he has pain, particularly if there 
 
         is any physical resistance to the movement.  Claimant stated that 
 
         the height at which he works is as large a factor as the amount 
 
         of weight when carrying or lifting things.  He stated that 
 
         lifting and carrying away from the body is more painful than when 
 
         it is performed with the weight close to his body.  Claimant 
 
         stated that his shoulder is stiff and sore all the time and that 
 
         this claim is based upon the condition of his shoulder.
 
         
 
              Exhibit 2 contains records from Dr. Janda.  The records show 
 
         that he treated claimant commencing in October, 1980 through a 
 
         date that appears to shortly precede February 17, 1981 for 
 
         complaints regarding claimant's right shoulder.  At the first 
 
         evaluation, October 23, 1980, it is noted that claimant could 
 
         perform push-ups without complaint of pain.  At the first entry 
 
         on the page which bears the number "4", (a date believed to be 
 
         November 28, 1980; part of the page was missed in photocopying 
 
         the record), it is noted that claimants pain has improved and 
 
         that he was released to return to work, but that he still 
 
         exhibited crepitus and snapping in the shoulder.
 
         
 
              The next record of claimant seeing Dr. Janda for any 
 
         shoulder problems is dated April 15, 1985, refers to an injury of 
 
         December, 1984, and notes complaints of pain, tenderness and 
 
         spasm in the right trapezius, scapula and rotator cuff.  The 
 
         claimant expressed pain upon performing push-ups and still 
 
         exhibited the snapping.  Dr. Janda indicated that the claimant's 
 
         condition was a muscle strain of the right trapezius and right 
 
         shoulder girdle which was related to an injury of December 3 or 
 
         5, 1984.
 
         
 
              Exhibit 21 is a collection of notes from Dr. Ruen which show 
 
         that claimant was seen on December 10, 1984 with complaints of 
 
         pain in his right shoulder as a result of slipping on an incline, 
 
         grabbing a handrail and wrenching his shoulder at work on the 
 
         previous Saturday night (the preceding Saturday would have been 
 
         December 8, 1984).  Dr. Ruen observed severe muscle spasm and 
 
         decreased range of motion and pain in the area of claimant's 
 
         right shoulder.  Exhibit 21 shows a series of return visits 
 
         running to April 15, 1985 where it is noted that claimant would 
 
         be referred to Dr. Janda.  The records of treatment with 
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   4
 
         
 
         
 
         complaints of right shoulder pain continue into early 1986.  
 
         Exhibit 10, a letter from Dr. Ruen to the Travelers Insurance 
 
         Company dated September 16, 1985, contains a summary of the 
 
         treatment that was provided to the claimant.  The report does not 
 
         contain a final diagnosis or address the issue of permanent 
 
         impairment.
 
         
 
              Exhibit 5 is a report from Dr. Janda dated April 18, 1985.  
 
         Dr. Janda diagnosed claimant as having a muscle strain of the 
 
         neck and right shoulder, probably aggravated by claimant's work 
 
         activity.  He restricted claimant from performing work such as 
 
         jackhammering (exhibit 5).
 
         
 
              Exhibit 11 is a report from D. E. Fisher, M.D., dated 
 
         January 9, 1986.  It shows that Dr. Fisher examined claimant and 
 
         observed an audible and palpable snapping of the perimedial angle 
 
         with the thoracic posterior rib cage on the right side and marked 
 
         pain with the snapping.  Dr. Fisher did not enter a specific 
 
         diagnosis, but stated that he recommended that claimant avoid 
 
         heavy, stressful work of the type which reproduced his symptoms.  
 
         Dr. Fisher rated claimant as having a fifteen percent disability 
 
         of the right shoulder which he considered to be equivalent to a 
 
         six percent permanent impairment of the body as a whole.
 
         
 
              Claimant was evaluated by M. W. Crane, M.D., on January 27, 
 
         1987.  Dr. Crane's physical examination resulted in findings 
 
         similar to those from Dr. Fisher and Dr. Janda.  Dr. Crane formed 
 
         the impression that claimant probably had a partial tear of the 
 
         levator scapulae muscle and possibly the rhomboid minor, probably 
 
         at their insertions, and may also have a tear of the serratus 
 
         posterior.  Dr. Crane indicated that the injury had probably 
 
         resulted in some rough tissue which resulted in tendonitis and 
 
         pain with lifting or motion.  Dr. Crane assigned a ten percent 
 
         impairment rating of the upper extremity which he indicated was 
 
         equivalent to a six percent impairment of the whole person.  In a 
 
         subsequent report dated February 24, 1987 (exhibit 14), Dr. Crane 
 
         further explained that, since the 1980 injury left claimant with 
 
         the snapping scapula, a portion of the claimant's impairment was 
 
         related to that 1980 injury.  Dr. Crane explained that, of the 
 
         six percent impairment he had rated, two percent was due to the 
 
         1980 injury and four percent was due to the 1984 injury (exhibit 
 
         15).
 
         
 
              The record reflects x-rays, nerve conduction studies and 
 
         other diagnostic tests.  None of the tests performed have shown 
 
         any objective evidence of any abnormality in or about claimant's 
 
         right shoulder.  The tests do disclose degeneration in claimant's 
 
         cervical spine, but that is not a part of the claim made in this 
 
         case.  Mayo Clinic found no objective involvement of a nerve root 
 
         or peripheral nerve (exhibit 8).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 8, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.w.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   5
 
         
 
         
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The assessment of the case made by Dr. Crane is accepted as 
 
         being correct.  His assessment is the most detailed and 
 
         comprehensive of any found in the record.  It is the most recent 
 
         and does not actually conflict to any significant degree with any 
 
         of the other medical evidence in the record.
 
         
 
              Claimant testified to a traumatic event which was reported 
 
         to his supervisor and for which he promptly sought medical care. 
 
          His symptoms have been consistent throughout the course of 
 
         treatment.  Drs. Crane and Janda specifically related the problem 
 
         in claimant's right shoulder to his work injury of December, 1984 
 
         (exhibits 2, 13, 14 and 15).  None of the physicians disputed 
 
         that a causal connection existed between the shoulder problem and 
 
         claimant's employment.  Accordingly, it is determined that the 
 
         injury of December 8, 1984 is a proximate cause of the disability 
 
         that currently exists in claimant's right shoulder.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              The issue of whether an injury is to a scheduled member or 
 
         to the body as a whole is to be determined by the anatomical 
 
         location of the physical impairment, derangement or disability.  
 
         Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. 
 
         Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); 
 
         Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 
 
         (1949).  The medical records in this case refer to the scapula, 
 
         the trapezius and the shoulder girdle.  There is also a reference 
 
         to claimant's bicep.  The bicep is normally considered part of 
 
         the arm.  The shoulder girdle includes the upper part of the arm 
 
         and its articulations into the shoulder itself.  The trapezius 
 
         and scapula are not part of the arm, although they are sometimes 
 
         referred to by medical practitioners as part of the shoulder 
 
         girdle or upper extremity.  Section 85.34(2)(m) deals with the 
 
         "...arm between the shoulder joint and the elbow joint...." It 
 
         does not refer to the shoulder girdle or the upper extremity.  In 
 
         fact, it indicates that the arm, for purposes of workers' 
 
         compensation, is the part that is located distal to the shoulder 
 
         joint.  While the head of the humerus is part of the shoulder 
 
         joint, it is a part of the arm.  The disability which Steven J. 
 
         Ward experiences affects him primarily in his ability to use his 
 
         right arm.  The medical records indicate, however, that the 
 
         physiological injury or abnormality is not located in the arm.  
 
         The injured areas are the trapezius, scapula and other structures 
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   6
 
         
 
         
 
         proximal to the shoulder joint.  Accordingly, the injury and 
 
         disability are not limited to claimant's arm, a scheduled member, 
 
         but rather extend into the body as a whole, the location where 
 
         the source of the problem exists.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant testified on his own behalf.  His appearance and 
 
         demeanor were observed as he testified.  His testimony was 
 
         compared with the other evidence in the record.  Claimant is 
 
         found to be a fully credible witness.
 
         
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   7
 
         
 
         
 
              Claimant is.a high school graduate and appeared to be of at 
 
         least average intelligence.  He seems to be well motivated to 
 
         work.  Most of his work history, however, involves strenuous 
 
         physical activity.  Claimant's restrictions involving the use of 
 
         his right arm and shoulder have a significant effect on his 
 
         ability to continue to perform the type of employment that he has 
 
         commonly performed in the past.
 
         
 
              Claimant has been rated by Drs. Fisher and Crane as having a 
 
         six percent impairment of the body as a whole, of which four 
 
         percent is related to the 1984 injury and two percent to the 1980 
 
         injury.  In view of the restrictions recommended by the various 
 
         physicians, in particular Drs. Fisher and Crane, it is certainly 
 
         appropriate that claimant would not return to his employment with 
 
         Lehigh Portland Cement Company.  The ranch work seemed to be a 
 
         reasonable type of gainful activity for claimant.  His work as a 
 
         framing carpenter is probably more likely to cause problems with 
 
         his shoulder than was the ranch work.  In making this decision, 
 
         it is understood and contemplated that the claimant very well may 
 
         not be able to continue to perform the work of a framing 
 
         carpenter.
 
         
 
              Claimant's rate of compensation indicates that he was 
 
         probably earning somewhere in the range of $11.00 or $12.00 per 
 
         hour at the time he was injured.  His current earnings are $8.00 
 
         per hour.  As a ranch hand, he earned $5.00 per hour or less.  It 
 
         is clear that he has experienced a considerable reduction in 
 
         actual earnings.
 
         
 
              Industrial disability, or loss of earning capacity as it is 
 
         sometimes referred to, is quite similar to the concept of 
 
         impairment of earning capacity, an element of damages in a tort 
 
         case.  Impairment of physical capacity creates an inference of 
 
         lessened earning capacity.  The basic element, 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.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App 1977) 100 A.L.R.3d 143.  Post-injury earnings are 
 
         not synonymous with earning capacity, but do create a presumption 
 
         of earning capacity.  The presumption is rebuttable by evidence 
 
         showing the earnings to be an unreliable basis for estimating 
 
         earning capacity.  2 Larson Workmen's Compensation Law, sections 
 
         57.21 and 57.31; Michael v. Harrison County, 34th Biennial 
 
         Report, 218 (1969).
 
         
 
              When all the factors of industrial disability are 
 
         considered, it is determined that claimant has a 25% permanent 
 
         partial disability as a result of the injury of December 8, 
 
         1984.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Steven J. Ward was a resident of the state of Iowa 
 
         employed by Lehigh Portland Cement Company at Mason City, Iowa on 
 
         December 8, 1984.
 
         
 
              2.  Steven J. Ward was injured on December 8, 1984 when he 
 
         slipped on an incline and wrenched his shoulder while grabbing a 
 
         handrail.
 
         
 
              3.  Steven J. Ward is a fully credible witness.
 
         
 
              4.  Steven J. Ward is 30 years of age, married and has two 
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   8
 
         
 
         
 
         dependent children.
 
         
 
              5.  Claimant is a high school graduate and of at least 
 
         average intelligence.
 
         
 
              6.  Claimant is motivated to be gainfully employed and his 
 
         decision to not return to work at Lehigh Portland Cement was 
 
         reasonable and appropriate.
 
         
 
              7.  Claimant Sustained permanent disability as a result of 
 
         the injuries he sustained on December 8, 1984.
 
         
 
              8.  The permanent disability is located in the area of 
 
         claimant's scapula, trapezius and shoulder girdle and is rated at 
 
         a six percent permanent impairment of the body as a whole.
 
         
 
              9.  Claimant's earning capacity has been impaired by 25% as 
 
         a result of the injuries he sustained on December 8, 1984.
 
         
 
             10.  The assessment made by Dr. Crane is accepted as being 
 
         correct.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to his right shoulder on 
 
         December 8, 1984 arose out of and in the course of his employment 
 
         with Lehigh Portland Cement Company.
 
         
 
              3.  The disability which the claimant currently experiences 
 
         in his right shoulder was proximately caused by the injury that 
 
         he sustained in his employment on December 8, 1984.
 
         
 
              4.  Claimant's injury is to the body as a whole and should 
 
         be compensated industrially under the provisions of Code section 
 
         85.34(2)(u).
 
         
 
              5.  Claimant is entitled to receive 125 weeks of 
 
         compensation for permanent partial disability representing a 25% 
 
         industrial disability.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant one 
 
         hundred twenty-five (125) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of two hundred 
 
         eighty-two and 73/100 dollars ($282.73) per week payable 
 
         commencing January 3, 1985, the date claimant returned to work 
 
         following the injury.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the entire amount 
 
         in a lump sum, as it is all accrued, together with interest 
 
         pursuant to section 85.30 of The Code.
 
         
 
              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.
 

 
         
 
         
 
         
 
         WARD V. LEHIGH PORTLAND CEMENT CO.
 
         PAGE   9
 
         
 
         
 
         
 
              Signed and filed this 12th day of October, 1988.
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Herman P. Folkers
 
         Attorney at Law
 
         5 West State Street
 
         Mason City, Iowa 50401
 
         
 
         Mr. C. Bradley Price
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30 Fourth Street NW
 
         P.O. Box 1953
 
         Mason City, Iowa 50401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1803, 1803.1
 
                                              Filed October 12, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         STEVEN J. WARD,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File No. 782489
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                A R B I T R A T I O N
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803, 1803.1
 
         
 
              The claimant's injury was to his shoulder girdle, including 
 
         the scapula and trapezius musculature.  The anatomical problem 
 
         was corroborated by a snapping sound upon motion, although other 
 
         diagnostic tests had failed to identify any abnormality.  The 
 
         physicians generally recommended that claimant avoid heavy 
 
         employment of the type he had performed with the employer.
 
         
 
              It was held that, where the physical abnormalities and 
 
         derangement were not located in claimant's arm, the disability 
 
         should be evaluated industrially, even though most of the actual 
 
         loss of function manifested itself in claimant's restricted use 
 
         of his right arm.
 
         
 
              Claimant was awarded 25% permanent partial disability based 
 
         upon a 6% impairment rating and the requirement that he change 
 
         occupations.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. BURTON,
 
         
 
              Claimant,                          File No. 782537
 
         
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         VARIED ENTERPRISES, INC.,
 
         d/b/a PRIVATE CARRIER                   D E C I S I 0 N
 
         PERSONNEL,
 
         
 
               Employer,
 
         and
 
         
 
         SAFECO INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by William 
 
         Burton, claimant, against Varied Enterprises, Inc., d/b/a Private 
 
         Carrier Personnel, employer, and Safeco Insurance Company, 
 
         insurance carrier, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a resuit of an injury which arose out of and 
 
         in the course of claimant's employment on October 23, 1984.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner February 15, 1988.  The record was 
 
         considered fully submitted upon the receipt of the deposition of 
 
         William John Robb, M.D.  The record in this case consists of the 
 
         testimony of claimant, Patricia Burton, his wife, Roger 
 
         Marquardt, and Cecelia Biaskovich; joint exhibits 1 through 7, 
 
         inclusive, and 9 through 14, inclusive; and claimantOs exhibit A 
 
         to which defendants' objection is overruled and claimant's 
 
         exhibit A is admitted into evidence for its probative value.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved February 15, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
         partial disability benefits;
 
         
 
              2.  The applicability of the odd-lot doctrine; and,
 
         
 
              3.  The applicability of penalty benefits pursuant to Iowa 
 
         Code section 86.13.
 
         
 
              Also disputed is claimant's entitlement to certain medical 
 
         benefits under Iowa Code section 85.27.  This issue, however, was 
 
         not listed as an issue on the hearing assignment order and, 
 
         accordingly, the undersigned is without jurisdiction to consider 
 
         it.  See Joseph Presswood v. Iowa Beef Processors, (Appeal 
 

 
         Decision filed November 14, 1986) holding an issue not noted on 
 
         the hearing assignment order is an issue that is waived.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on October 23, 1984, when, while 
 
         unloading a truck by hand, he felt something "pop" in his lower 
 
         back.  Claimant testified he continued working and when the 
 
         unloading was finished he called defendants' dispatcher 
 
         requesting to be sent home.  Claimant stated that when no return 
 
         load was available he was sent on to other places and returned to 
 
         Cedar Rapids approximately two days later.  Upon that return, 
 
         claimant went to ' a chiropractor with whom he treated until 
 
         January 1985 when defendants directed him to begin treating with 
 
         W. John Robb, M.D.
 
         
 
              Claimant testified that he has never gotten rid of the 
 
         pain he has felt since the day of his injury.  Claimant 
 
         described an occasional tingling sensation in his back, legs, 
 
         feet and toes, that his back pain, which he stated was a 
 
         constant "dull ache" or "sharp" pain with too much activity, 
 
         becomes worse with bending, lifting, sitting, and standing.  
 
         Claimant testified he continues to do exercises for his back, 
 
         uses medication as needed for pain and that some nights he does 
 
         not sleep at ail.  Claimant estimated his ability to drive is 
 
         limited to two hours (without stretching), his ability to 
 
         stand/sit is one and one-half to two hours and that although at 
 
         one time he was able to walk as much as four and one-half 
 
         miles, he can currently walk one-half mile "if at all." 
 
         Claimant stated he cannot bend or twist and described his life 
 
         as very inactive.
 
         
 
              Claimant recalled Dr. Robb telling him he could not return 
 
         to work as a truck driver and that at around that time he went 
 
         to the State of Iowa Vocational Rehabilitation Center and to 
 
         the Kirkwood Skill Center to see what "they had to offer."  
 
         Claimant described taking a series of interest tests in 
 
         bookkeeping (in which he stated he did not do well), 
 
         calculators and typewriters (which he stated he could not 
 
         operate because of the limited dexterity in his hands) and in 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   3
 
         
 
         shipping clerk (in which he stated he did well). Claimant 
 
         testified that he had also explored small appliance repair and, 
 
         while working in this field at the skill center he hurt his 
 
         back again which resulted in a a "couple of weeks of bed rest."  
 
         Claimant recalled going through a course on job seeking skills 
 
         and being told "they did not think they could do anything" for 
 
         him so he did not return.  Claimant testified he secured 
 
         temporary employment for three weekends in May 1985 as a 
 
         lottery information clerk but, after experiencing back pain the 
 
         first two weekends, explained that he could not get through the 
 
         third weekend and left before the job was complete.  Claimant 
 
         also secured work with the Two Star Detective Agency as a 
 
         security guard for approximately six weeks.  Claimant 
 
         testified, however, that he quit this employment because he 
 
         "physically could not take it anymore."  This work had required 
 
         claimant to walk around buildings and grounds including walking 
 
         up and down stairs.  Claimant, although he stated he planned on 
 
         working until he was 65, testified he elected to retire on 
 
         pension from the Teamsters Union maintaining that if he had not 
 
         taken the pension, he would have lost all his benefits.  
 
         Claimant acknowledged he is also receiving social security 
 
         benefits which he sought after failing to maintain any 
 
         employment.  On cross-examination, claimant stated he was last 
 
         examined by Dr. Robb in late 1987, that his condition has 
 
         improved but he still has pain, that he last looked for work in 
 
         1985, and that he wants to be active and wants to work if the 
 
         pay is at least as much as his social security benefits.  
 
         Claimant currently receives approximately $764 per month in 
 
         social security benefits, $623 per month in Teamsters 
 
         retirement (not disability) benefits, and $400 per month in 
 
         income protection benefits.
 
         
 
              Patricia Burton testified claimant's disposition has 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   4
 
         
 
         changed since he is "not able to do anything," that he is 
 
         moody, stays up late, cannot sleep, cannot wrestle with his 
 
         grandchildren, and that where he used to do all of the yard 
 
         work, he now "does what he can but not all at once."  Mrs. 
 
         Burton described her husband's pastimes as fishing, visiting, 
 
         reading and watching television.
 
         
 
              Roger Marquardt, who described himself as a vocational 
 
         rehabilitation specialist, testified he became involved in 
 
         claimant's case at the request of claimant's counsel in the 
 
         fall of 1986 to assess claimant's "present and future 
 
         vocational rehabilitation capacity."  Mr. Marquardt recalled 
 
         visiting with claimant on January 28, 1988 concerning his past 
 
         work, his functional capacity, his goals and the situation as 
 
         claimant perceived it.  After this interview and a review of 
 
         the medical and social security records, Mr. Marquardt 
 
         concluded claimant is employable in unskilled sedentary work 
 
         described as "monitoring jobs" and that there is a wide range 
 
         of unskilled or lower level semi-skilled work within the state 
 
         of Iowa that claimant would be able to perform.  However, Mr. 
 
         Marquardt stated that although there are jobs claimant can do, 
 
         jobs may not exist in significant numbers that would allow 
 
         cross-examination, Mr. Marquardt acknowledged he did no 
 
         independent testing, made no actual employer contacts in the 
 
         Cedar Rapids area, and that if claimant returned to work he 
 
         would most probably be earning a wage less than his workersO 
 
         compensation benefits.
 
         
 
              Marguerite Cecelia Blaskovich, R.N., CIRS, testified she 
 
         found 38 actual job openings from January 1988 through February 
 
         8, 1988 which were within claimant's medical restrictions and 
 
         which she felt claimant was able to perform and that, pursuant 
 
         to information provided by Career Information System of Iowa, 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   5
 
         
 
         the wage ranged from $7.52 per hour to $10.05 per hour for 
 
         those positions.
 
         
 
              William John Robb, M.D., orthopedic surgeon, testified he 
 
         first saw claimant January 14, 1985 with a history consistent 
 
         with that given by claimant at the time of hearing.  Dr. Robb 
 
         stated that the physical and neurological examination conducted 
 
         that day were normal, that x-rays did not show any abnormality 
 
         of the bone or joint, and that his diagnosis was that claimant 
 
         had sustained a moderately severe strain of the lumbosacral 
 
         spine.  Dr. Robb prescribed conservative management treatment 
 
         consisting of rest and physical therapy.  Dr. Robb testified 
 
         that a CT scan was recommended because of the persistence of 
 
         claimant's low back pain with occasional pain down into the 
 
         legs which had implied that claimant might have some nerve root 
 
         irritation.  A CT scan done on June 22, 1985 showed a livery 
 
         minimal bulging" of the disc at L4-5 which Dr. Robb described 
 
         as "slightly abnormal" but "not a herniated disc."  Claimant's 
 
         treatment regimen was not changed following the CT scan.  Dr. 
 
         Robb opined claimant has a permanent partial impairment of 10 
 
         percent to the whole person and stated that:
 
         
 
                 I felt he would not be able to return to his 
 
              previous occupation or the physical requirements -- the 
 
              bending and the lifting -- would not be feasible and as 
 
              a result I felt that he would have to seek some other 
 
              type of occupation, less stressful.  I felt this 
 
              limitation was permanent and the context of amount he 
 
              would not be able to lift I did not feel more than 35 
 
              pounds on an occasional basis.  This is assuming 
 
              maximum healing or probably 20 pounds on a repetitive 
 
              basis ....
 
         
 
         (Robb Deposition; Joint Exhibit 1V, pages 15-16)
 
         
 
              Dr. Robb defined nonstressful as an occupation which did not 
 
         require bending, stooping, lifting or sitting "for long periods 
 
         of time."  Dr. Robb concluded:
 
         
 
              Q.  Now, what physical activities in your opinion can 
 
              he perform that could be translated into gainful 
 
              employment?
 
         
 
              A.  I think that he could work -- I just estimated this 
 
     
 
         
 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   6
 
         
 
              from talking to him.  I think he could work at a job 
 
              which would not require sitting probably for more than 
 
              an hour at a time, that would allow him to get up and 
 
              walk around and I would not place any limitation on his 
 
              walking because he did well.  Then in terms of like 
 
              using the mechanics of his back, say, at a machine or 
 
              something, if he's standing, can move around a little 
 
              bit, he could work or stand probably for an hour at a 
 
              time.  He would have a problem though if he had to bend 
 
              over to the floor to pick up equipment, so a machine 
 
              job in which he is relatively straight and his material 
 
              is in front of him would be feasible with the 
 
              opportunity at intervals -- an hour or two hours -- to 
 
              change positions, walk away and come back to it.  
 
              Moderate lifting on an occasional basis and around the 
 
              area of 20 pounds; 20, 30 pounds would be I think 
 
              feasible.
 
         
 
         (Robb-Dep.; Jt. Ex. 1V, pp. 23-24)
 
         
 
              Dr. Robb opined that the subjective and objective findings 
 
         did not provide adequate indication for surgical intervention.
 
         
 
              Thomas A. Carlstrom, M.D., neurosurgeon, testified he 
 
         examined claimant on May 12, 1987 at the request of defendants 
 
         and explained he took a history, conducted his own examination 
 
         and reviewed all the records and reports from claimant's doctors 
 
         and hospitals up to the time of the examination.  Dr. Carlstrom 
 
         found claimant to be "probably" experiencing symptoms of a 
 
         myofascial disorder in his back and estimated claimant had an 
 
         impairment related to the injury of October 1984 "of about 5 to 7 
 
         percent" of the body as a whole based upon the "AMA criteria."  
 
         Dr. Carlstrom testified:
 
         
 
              I think he could probably drive a motor vehicle.  He 
 
              should be able to, I think, do activities which do not 
 
              require lifting; and I would place a lifting 
 
              restriction of about 35 to 40 pounds on him for 
 
              absolute lifting.  I think he should avoid repetitive 
 
              lifting of, say, 15 to 20 pounds.  He probably should 
 
              avoid sitting greater than about an hour and a half at 
 
              a time.  And with those restrictions I would think he 
 
              could, for instance, drive a motor vehicle.
 
         
 
         (Carlstrom Deposition; Joint Exhibit 7F, pp. 8-9)
 
         
 
              Dr. Carlstrom agreed with Dr. Robb that surgical 
 
         intervention was not warranted and stated he did not feel 
 
         claimant could return to work in his previous occupation with 
 
         defendants and that vocational retraining or placement would be 
 
         appropriate.
 
         
 
              Claimant was seen for diagnosis, evaluation and "possible 
 
         treatment" by John R. Walker, M.D., in approximately late 1985.  
 
         Dr. Walker reported taking "AP and lateral, right, left, oblique 
 
         views and spot views of the lumbar spine" noting an "extremely 
 
         good spinal throughout" with little, if any, arthritic change and 
 
         well preserved disc spaces.  Dr. Walker rendered diagnoses of 
 
         severe lumbosacral sprain with marked instability, sprain of L4, 
 
         L5, and sciatica on the basis of a space occupying lesion, 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   7
 
         
 
         probably a small protruded, herniated disc in the lumbar region, 
 
         probably at L4, involving the right L-5 nerve root.  On December 
 
         4, 1985, Dr. Walker reported:
 
         
 
                 Actually, this is a man that I would not hesitate to 
 
              do surgery on.  I don't think the chymopapase injection 
 
              would be enough.  I would opt for a decompression, with 
 
              exploration and laminotomy at the L-4 space and perhaps 
 
              the L-5 space with a bilateral, lateral fusion of Mc 
 
              Elroy ....
 
         
 
                 Needless to say, this man at this point, without 
 
              treatment will never go back to semi-trailer truck 
 
              driving and it is very possible that even with the 
 
              surgery which I have proposed and the treatment that I 
 
              have proposed, he will still not be able to handle this 
 
              job ....
 
         
 
                 At this point his temporary, partial impairment I 
 
              would rate at approximately 30% of the body as a whole.  
 
              With proper treatment and especially if he did have 
 
              open surgery and fusion, etcetera, I would indicate 
 
              that this would then land at exactly 20% impairment of 
 
              the body as a whole.
 
         
 
                 If, by some miracle the traction and conservative 
 
              therapy would get him over most of this, very, very 
 
              possibly this might be reduced even more, say to the 14 
 
              or 15 percent range.
 
         
 
         (Joint Exhibit 6)
 
         
 
              Records submitted into evidence reveal claimant was referred 
 
         to the State of Iowa Vocational Rehabilitation by the director of 
 
         the displaced workers program at Kirkwood Community College in 
 
         October 1985 where claimant underwent a battery of tests and 
 
         evaluations.  A student progress report dated December 13, 1985 
 
         states:
 
         
 
                 Based upon..-.observations, Bill's disability has 
 
              not affected his work abilities to perform simple 
 
              recordkeeping/clerical tasks.  This evaluator 
 
              understands that Bill has riot functioned under similar 
 
              pressure doing job training or on a previous job 
 
              performing clerical activities.  This evaluator feels 
 
              that Bill would benefit from placement on a work 
 
              experience job site which would allow him to perform 
 
              clerical duties related to the shipping clerk/receiving 
 
              clerk, stock clerk, or traffic clerk job occupations.  
 
              The work site would offer Bill an opportunity to 
 
              monitor his work tolerance and physical capabilities 
 
              for the work.
 
         
 
         (Jt. Ex. 9)
 
         
 
              In a report dated February 24, 1986, it is written:
 
         
 
                 Bill has the capabilities of learning and retaining 
 
              information.  He shows some mechanical aptitudes and 
 
              has expressed interest in office machine repair.  Bill 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   8
 
         
 
              checked on qualifications for a person pursuing this 
 
              type of work.  He found that usually they hire from Job 
 
              Services of Iowa and there is not much turn-over in 
 
              this area.  While Bill was at the Skill Center, he 
 
              completed an application for Job Services of Iowa in 
 
              this particular area.
 
         
 
                 This counselor worked closely with his International 
 
              Rehabilitation Counselor who is Candace Kaelber, who 
 
              was hired by Workman's [sic] Compensation to help find 
 
              Bill a job.  Bill is very hesitant to take a job which 
 
              pays less than $450. per week, which is what he 
 
              receives from Workman's [sic] Compensation, and this is 
 
              understandable.  We are not sure how long this is going 
 
              to last and Bill realizes this.  We talked with Bill 
 
              about several things he thought he could do and was 
 
              verified by his evaluation here.  He talked about 
 
              working in the area of security and vacuum cleaner 
 
              repairman.  Candace would be willing to help Bill look 
 
              for work in these areas.
 
         
 
                 Bill also went through the Job Seeking Skills area 
 
              and learned interviewing techniques, how to put 
 
              together a resume, etc.  He ended his program on 
 
              February 21, with the idea that he is supposed to 
 
              contact the Job Seeking Skills instructor on a 
 
              once-per-day basis to see if there are any job leads.  
 
              Also, he will keep in contact with Candace who will 
 
              help him with his Job Seeking.
 
         
 
         (Jt. Ex. 9)
 
         
 
              By July 1986, the counselor, while reporting a contact with 
 
         the claimant, wrote claimant "went on to say it just doesn't look 
 
         like he'll be able to work, and the way things are working out, 
 
         I'm tending to agree."  The case file was closed on February 13, 
 
         1987, when it was made known that claimant:
 
         
 
              ... has retired, and is not planning on moving into the 
 
              competitive labor market.  He has received his Social 
 
              Security Disability Insurance, receiving around the 
 
              first of the a [sic] $6,500 settlement check and on 
 
              1/l/87, started receiving $703 a month.  He is also 
 
              receiving his Teamster's retirement check of $800.  
 
              With respect to his activities, he does a little bit of 
 
              walking and builds model airplanes.
 
         
 
                 Since he is not really interested in Rehabilitation 
 
              services and has retired, we talked about 
 
              Rehabilitation casefile closure.
 
         
 
         (Jt. Ex. 9)
 
         
 
              The case maintained by Candace Kaelber, rehabilitation 
 
         specialist with Intracorp, had been closed May 20, 1986 based on 
 
         her understanding that claimant no longer wanted vocational 
 
         assistance with his job search and claimant's refusal to meet 
 
         with her in the future.
 
         
 
               Defendants' answers to interrogatories revealed that a 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE   9
 
         
 
         surveillance investigation was commenced on September 5, 1985.  
 
         The report notes no activity was observed at claimant's home from 
 
         9:52 a.m. through 2:28 p.m. although it had been established that 
 
         claimant was at home.  The investigator conducted interviews with 
 
         the claimant's neighbors from which it was learned: Claimant's 
 
         wife and daughter tended to most of the yard work, and although 
 
         claimant had fished with his neighbor in the past they had not 
 
         done so during the summer of 1985 because claimant complained 
 
         about his back disorder; claimant had a tendency to stay at home 
 
         a lot, spending the majority of his time inside; and that 
 
         claimant was not seen doing much of anything during the past 
 
         summer.
 
         
 
                                  APPLICABLE LAW
 
         
 
               An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 23, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or impart, 
 
         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).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial 'disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  10
 
         
 
         
 
              Iowa Code subsection 85.34(2)(u) provides:
 
         
 
                 In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
              paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
                 If it is determined that an injury has produced a 
 
              disability less than that specifically described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              Iowa Code section 86.13 provides, in part:
 
         
 
                 If a delay in commencement or termination of 
 
              benefits occurs without reasonable or probable cause or 
 
              excuse, the industrial commissioner shall award 
 
              benefits in addition to those benefits payable under 
 
              this chapter, or chapter 85, 85A, 85B, up to fifty 
 
              percent of the amount of benefits they were 
 
              unreasonably delayed or denied.
 
         
 
         
 
         ANALYSIS
 
         
 
              The parties do not dispute that claimant sustained an injury 
 
         which arose out of and in the course of his employment or that 
 
         the injury is the cause of both temporary and permanent 
 
         disability.  Defendants contend that claimant's injury was the 
 
         cause of permanent disability only to the extent that claimant 
 
         has received benefits.  Notwithstanding defendants' position, 
 
         claimant has met his burden of proof that the work injury is the 
 
         cause of permanent disability.  Furthermore, the greater weight 
 
         of evidence establishes that all of claimant's disability is 
 
         causally connected to the work injury of October 23, 1984.  It is 
 
         necessary, then, to consider only the issue of the extent of 
 
         claimant's permanent disability which includes the related issue 
 
         of whether or not claimant is an odd-lot employee as contemplated 
 
         by Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 1985).
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  11
 
         
 
         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 file injury, after the 
 
         injury and potential for rehabilitation; file employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  12
 
         
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.  T15, 320, 41 N.W.2d 433, 436 (1950). 
 
          The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
              The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining 
 
              industrial disability.  Industrial disability means 
 
              reduced earning capacity.  Bodily impairment is merely 
 
              one factor in a gauging industrial disability. other 
 
              factors include the worker's age, intelligence, 
 
              education, qualifications, experience, and the effect 
 
              of the injury on the worker's ability to obtain 
 
              suitable work.  See Doerfer Division of CCA v. Nicol, 
 
              359 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
              of factors precludes the worker from obtaining regular 
 
              employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  
 
              See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 
 
              (Iowa 1980).
 
         
 
              Of first concern is whether or not claimant has established 
 
         he is an "odd-lot employee" under Guyton, meaning has claimant 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  13
 
         
 
         made a prima facie case of total disability by producing 
 
         substantial evidence that he is not employable in the competitive 
 
         labor market.  It cannot go without comment that claimant has 
 
         been employed since the date of his injury.  Further, claimant's 
 
         own vocational expert who testified at the hearing stated that 
 
         many thousands of jobs exist for which claimant is qualified and 
 
         which would fall within his medical restrictions.  Mr. Marquardt 
 
         found that claimant had the potential to attain a wage level of 
 
         approximately $8.00 per hour considering the type of work he 
 
         could perform.  Cecelia Blaskovich found what she described as 
 
         actual job openings which were within claimant's restrictions.  
 
         Claimant continually pointed out that he could no longer perform 
 
         the job of a truck driver which he had held for the majority of 
 
         his working years.  However, simply because claimant can no 
 
         longer drive a truck does not directly lead to the conclusion 
 
         that claimant is not employable.  No physician who either treated 
 
         or evaluated claimant prohibited him from working.  Claimant 
 
         appears to argue that because the Cedar Rapids job market may be 
 
         tight, his chances of securing employment are more limited.  
 
         However, a disability which may result from the state of the 
 
         economy is not compensable under the Iowa Workers' Compensation 
 
         laws.  Webb v. Lovejoy Construction Company, 2 Iowa Industrial 
 
         Commissioner Report 430 (Appeal Decision 1981).  Claimant has not 
 
         looked for nor attempted to work since 1985.  A review of the 
 
         rehabilitation records submitted leads the undersigned to the 
 
         conclusion that claimant, the closer he got to the age he had 
 
         anticipated retiring before he was injured, lost his desire to 
 
         try to work any further.  Not wanting to work or not feeling up 
 
         to work do not constitute substantial evidence that the worker is 
 
         not employable in the competitive labor market.  The undersigned 
 
         does not doubt that claimant feels pain. However, a careful 
 
         review of the evidence shows clearly that claimant can perform 
 
         services which are not so limited in quality, dependability, or 
 
         quantity that a reasonably stable labor market for them does not 
 
         exist.  Therefore, claimant has failed to establish that the 
 
         odd-lot doctrine is applicable in this case.
 
         
 
              Accordingly, the question becomes the extent of claimant's 
 
         industrial disability.  Dr. Robb opined claimant has a permanent 
 
         partial impairment of 10 percent of the-whole person and places 
 
         restrictions on claimant's employability which would clearly 
 
         prohibit him from engaging in any employment as a truck driver.  
 
         Although Dr. Carlstrom places claimant's impairment at five to 
 
         seven percent of the body as a whole, he, too, restricts claimant 
 
         from engaging in employment as a truck driver.  Functional 
 
         disability is an element to be considered in determining 
 
         industrial disability which is the reduction of earning capacity, 
 
         but consideration must also be given to the insured 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).
 
         
 
              Claimant was 61 years old at the time of hearing, a high 
 
         school graduate, who began truck driving in 1948.  Claimant 
 
         planned to work until he was 65 years old.  He accepted 
 
         retirement benefits from the Teamsters in approximately 1987, 
 
         which, perhaps coincidentally and perhaps not, appears to be the 
 
         same time claimant lost his desire for rehabilitation/retraining.  
 
         See e.g., Joint Exhibit 9, page 103.  Prior to this, it would 
 
         seem claimant had some motivation although even this is 
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  14
 
         
 
         questionable in light of his later actions.  Testimony at the 
 
         hearing revealed that claimant previously had a problem with his 
 
         back that resolved itself in a relatively short period of time 
 
         and that claimant had sustained injuries with his right and left 
 
         hands.  Part of claimant's index finger had been severed and 
 
         reattached with a loss of.sensation and strength and claimant had 
 
         a military related injury involving the median nerve which also 
 
         caused a loss of sensation, strength and grip to his left hand.  
 
         However, prior to the work injury of October 23, 1984, claimant 
 
         appeared to have been able to perform his employment without any 
 
         difficulties.  The undersigned does not doubt claimant's 
 
         perceptions of pain and symptomatology.  It cannot be the subject 
 
         of great debate that this injury has hampered both claimant's 
 
         actual earnings and his capacity to earn.  However, claimant's 
 
         loss of future earnings from employment due to his disability is 
 
         not as severe as would be the case with a younger individual.  
 
         See Becke v. Turner-Busch, Inc., 34 Biennial Report of the Iowa 
 
         Industrial Commissioner 34 (1979).  Yet, his age could prove to 
 
         be a problem in securing employment in alternative vocations.
 
         
 
              Considering then all of the elements of industrial 
 
         disability, it is found that claimant has sustained a permanent 
 
         partial disability of 40 percent for industrial purposes 
 
         entitling him to 200 weeks of permanent partial disability 
 
         benefits.
 
         
 
              The final issue for resolution is claimantOs request for 
 
         penalty benefits.  Claimant submits that defendants should not 
 
         escape liability for penalty benefits by only paying benefits to 
 
         the extent of permanent physical impairment and that public 
 
         policy dictates that benefits are being unreasonably withheld 
 
         "when, under the circumstances as presented in this claim, the 
 
         permanent physical impairment in no way represents the extent of 
 
         industrial disability." As response, the first question which 
 
         comes to the mind of the undersigned is: In whose opinion?
 
         
 
              While it is true that claimant has been found to have 
 
         sustained an industrial disability which exceeds the 10 percent 
 
         paid by defendants, industrial disability can be less than, 
 
         greater than or equal to functional impairment.  Birmingham v. 
 
         Firestone Tire & Rubber Company, II Iowa Industrial Commissioner 
 
         Report 39 (Appeal Decision 1981).  Iowa Code section 86.13 refers 
 
         to a delay in the commencement of or termination of benefits 
 
         without reasonable or probable cause or excuse.  It does not 
 
         allow penalty benefits when one party is dissatisfied with the 
 
         amount of money that was voluntarily paid.  This is particularly 
 
         true when, under the Iowa Workers' Compensation laws, defendants 
 
         are not entitled to recoup any amount of overpayment from 
 
         claimant.  It cannot be concluded, based on the evidence 
 
         presented, that defendants delayed the commencement of or 
 
         terminated claimant's benefits without reasonable or probable 
 
         cause or excuse.  The undersigned is not vested with equitable 
 
         powers.  Accordingly, no penalty benefits will be awarded in this 
 
         case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made.
 
         
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  15
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on October 23, 1984, when, while 
 
         loading a truck by hand he injured his back.
 
         
 
              2.  Claimant treated, without success, with a chiropractor 
 
         from the time of his injury until January 1985 when he began 
 
         treating with William John Robb, M.D.
 
         
 
              3.  When first examined by Dr. Robb, the physical and 
 
         neurological examinations given that day were normal, x-rays did 
 
         not show any abnormality of the bone or joint, and Dr. Robb 
 
         rendered a diagnosis that claimant had sustained a moderately 
 
         severe strain of the lumbosacral spine.
 
         
 
              4.  When conservative treatment consisting of rest and 
 
         physical therapy did not appear to alleviate claimant's symptoms, 
 
         Dr. Robb ordered a CT scan which showed a very minimal bulging of 
 
         the disc at L4-5 which was described-as slightly abnormal but not 
 
         a herniated disc.
 
         
 
              5.  Surgical intervention does not appear to be warranted at 
 
         this time.
 
         
 
              6.  Claimant has a permanent physical impairment as a result 
 
         of the work injury of October 23, 1984.
 
         
 
              7.  Claimant has permanent restrictions on his employability 
 
         which would prohibit him from engaging in employment as a truck 
 
         driver.
 
         
 
              8.  Claimant, age 61 at the time of hearing, began working 
 
         as a truck driver in 1948.
 
         
 
              9.  Claimant has been employed since his injury.
 
         
 
             10.  Claimant accepted retirement benefits from the 
 
         Teamsters
 
         Union which appears to coincide with the time claimant lost his 
 
         desire and motivation for rehabilitation or retraining.
 
         
 
             11.. Because claimant can no longer drive a truck does not 
 
         indicate claimant is not employable.
 
         
 
             12.  Claimant's own vocational expert found that there are 
 
         positions in which claimant could work even considering his 
 
         medical restrictions.
 
         
 
             13.  A disability resulting from the state of the economy is 
 
         not compensable.
 
         
 
             14.  Claimant's employability is not so limited in quality, 
 
         dependability or quantity that a reasonable stable labor market 
 
         for them does.not exist.
 
         
 
             15.  Claimant planned on retiring at age 65.
 
         
 
             17.  Claimant's capacity to earn and actual earnings have 
 
         been hampered as a result of the work injury of October 23, 
 
         1984.
 
         
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  16
 
         
 
             18.  As a result of the work injury of October 23, 1984, 
 
         claimant sustained a permanent partial disability of 40 percent 
 
         for industrial purposes.
 
         
 
             19.  Defendants did not delay the commencement of nor 
 
         terminate benefits without reasonable or probable cause or 
 
         excuse.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made.
 
         
 
              1.  Claimant failed to establish a prima facie case he is an 
 
         odd-lot employee.
 
         
 
              2.  Claimant has established that as a result of the work 
 
         injury of October 23, 1984, he sustained a permanent partial 
 
         disability of 40 percent for industrial purposes entitling him to 
 
         200 weeks of permanent partial disability benefits.
 
         
 
              3.  Claimant failed to establish entitlement to penalty 
 
         benefits under Iowa Code section 86.13.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of four hundred fifty-two and 98/100 dollars ($452.98) per week 
 
         commencing August 7, 1985.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              Payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                      DEBORAH A. DUBIK
 
                                      DEPUTY INDUSTRIAL  COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave SW, Ste 114
 
         Cedar Rapids, IA 52404
 
         
 

 
         
 
         
 
         
 
         BURTON V. VARIED ENTERPRISES, INC.
 
         PAGE  17
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St, Ste 16
 
         Des Moines, IA 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                 1803; 4100; 4000
 
                                                 Filed October 24, 1988
 
                                                 Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM J. BURTON,
 
         
 
              Claimant,                           File No. 782537
 
         
 
         vs.                                  A R B I T R A T I 0 N
 
         
 
         VARIED ENTERPRISES, INC.,
 
         d/b/a PRIVATE CARRIER PERSONNEL,        D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         SAFECO INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant, age 61 and a truck driver since 1948, injured his 
 
         back and was precluded from engaging in his regular occupation as 
 
         a result of the work restrictions imposed by his physicians.  
 
         Claimant's motivation to return to the competitive labor market 
 
         appeared to wane after he accepted retirement benefits.  Claimant 
 
         found to have an industrial disability of 40%.
 
         
 
         4100
 
         
 
              Claimant made two attempts to return to work and stopped 
 
         searching for work after the receipt of pension and social 
 
         security benefits.  Claimant found not to have met his burden of 
 
         proof that he was an odd-lot employee particularly where his own 
 
         vocational expert testified there were many thousands of jobs 
 
         available for which he was qualified.
 
         
 
         4000
 
         
 
              Penalty benefits were found to be inappropriate merely 
 
         because claimant was dissatisfied with the amount defendants 
 
         voluntarily paid even if the decision awarded more than that 
 
         which was paid.  Deputy was not vested with equitable powers.
 
         
 
 
 
                                                
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LARRY M. JOHNSON,
 
        
 
            Claimant,
 
        
 
        vs.                              File Nos. 782796,792733
 
        
 
        GEORGE A. HORMEL & CO.,               O R D E R
 
        
 
            Employer,                        N U N C
 
        
 
        and                                   P R O
 
        
 
        LIBERTY MUTUAL INS. COMPANY,          T U N C
 
        
 
            Insurance Carrier,
 
        
 
        and
 
        
 
        SECOND INJURY FUND OF IOWA,
 
        
 
            Defendants.
 
        
 
        
 
        Both parties have requested an order nunc pro tunc to settle a 
 
        question of whether defendants should receive credit against the 
 
        award of permanent partial disability benefits for 32.429 weeks 
 
        of healing period benefits previously paid.
 
        
 
        A review of the file indicates that prior to the arbitration 
 
        hearing, the parties entered into a pre-hearing report that 
 
        stated "Last day worked in any capacity on 8/26/85. Absent from 
 
        work continuously since 8/27/85. Claimant is not claiming add'l 
 
        (sic) ttd or hp benefits prior to 8/26/85." These notes were 
 
        made under section 4 of the Pre-Hearing Report form, which deals 
 
        with temporary total disability or healing period benefit 
 
        entitlement. The designation "hp" is read to refer to healing 
 
        period benefits.
 
        
 
        The deputy's arbitration decision stated that claimant had 
 
        stipulated that he had been paid his entitlement to healing 
 
        period benefits up until August 26, 1985, and that the evidence 
 
        showed that claimant had returned to work and reached maximum 
 
        healing by August 27, 1985. Claimant failed to show entitlement 
 
        to healing period benefits subsequent to August 27, 1985. 
 
        Neither claimant nor defendants raised as an issue on appeal to 
 
        the commissioner the question of healing period benefits. 
 
        Claimant states in the application for an order nunc pro tunc:
 
        
 
        Claimant did not appeal the original decision because he believed 
 
        he would receive 125 weeks of
 
        
 
        JOHNSON V. GEORGE A. HORMEL & CO.
 
        Page 2
 
        
 
        benefits under that decision, and he did not appeal the 
 
        Industrial Commissioner's decision because he would obtain 105 
 
        weeks of benefits under that decision. He assumed that his claim 
 
        for healing period benefits had been refused.
 
        
 
        The deputy's decision awarded 105 weeks of permanent partial 
 

 
        
 
 
 
 
 
        disability benefits, commencing August 27, 1985. Claimant had 
 
        previously been paid his healing period benefits for the period 
 
        up until August 27, 1985. Defendants are entitled to a credit for 
 
        healing period benefits previously paid against any healing 
 
        period benefits ordered in the arbitration decision. However, as 
 
        entitlement to healing period benefits was not established at the 
 
        arbitration hearing, no healing period benefits were ordered. 
 
        Permanent partial disability benefits were ordered, and 
 
        defendants are entitled to receive credit for any permanent 
 
        partial disability benefits previously paid. Defendants would 
 
        also be entitled to a credit against permanent partial disability 
 
        benefits for any overpaid healing period benefits. There is no 
 
        claim by the parties nor evidence in the record to indicate that 
 
        claimant was overpaid healing period benefits. To hold that 
 
        defendants are entitled to a credit for healing period benefits 
 
        paid against permanent partial disability benefits due would, in 
 
        effect, reduce the permanent partial disability award by 32.429 
 
        weeks.
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants George A. Hormel & Co., and Liberty Mutual 
 
        Insurance Company shall pay unto claimant thirty-two point four 
 
        two nine (32.429) weeks of healing period benefits at the rate of 
 
        two hundred seventy-seven and 64/100 dollars ($277.64) per week.
 
        
 
        That defendants George A. Hormel & Co., and Liberty Mutual 
 
        Insurance Company are to be given credit for healing period 
 
        benefits previously paid.
 
        
 
        That defendants George A. Hormel & Co., and Liberty Mutual 
 
        Insurance Company shall pay unto claimant one hundred five (105) 
 
        weeks of permanent partial disability benefits at a rate of two 
 
        hundred seventy-seven and 64/100 dollars ($277.64) per week from 
 
        August 27, 1985.
 
        
 
        That defendants George A. Hormel & Co., and Liberty Mutual 
 
        Insurance Company are to be given credit for permanent partial 
 
        disability benefits previously paid, if any.
 
        
 
        JOHNSON V. GEORGE A. HORMEL & CO.
 
        Page 3
 
        
 
        
 
        
 
        Signed and filed this 20th day of January, 1989.
 
        
 
        
 
        
 
                                        DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY M. JOHNSON,
 
         
 
              Claimant,                       File Nos. 782796, 792733
 
         
 
         vs.                                         O R D E R
 
         
 
         GEORGE A. HORMEL & CO.,                      N U N C
 
         
 
              Employer,                                P R O
 
         
 
         and                                          T U N C
 
         
 
         LIBERTY MUTUAL INS. COMPANY,
 
                                                     F I L E D
 
              Insurance Carrier,
 
                                                    JAN 20 1989
 
         and
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
              Both parties have requested an order nunc pro tunc to settle 
 
         a question of whether defendants should receive credit against 
 
         the award of permanent partial disability benefits for 32.429 
 
         weeks of healing period benefits previously paid.
 
         
 
              A review of the file indicates that prior to the arbitration 
 
         hearing, the parties entered into a pre-hearing report that 
 
         stated "Last day worked in any capacity on 8/26/85.  Absent from 
 
         work continuously since 8/27/85.  Claimant is not claiming add'l 
 
         (sic) ttd or hp benefits prior to 8/26/85."  These notes were 
 
         made under section 4 of the Pre-Hearing Report form, which deals 
 
         with temporary total disability or healing period benefit 
 
         entitlement. The designation "hp" is read to refer to healing 
 
         period benefits.
 
         
 
              The deputy's arbitration decision stated that claimant had 
 
         stipulated that he had been paid his entitlement to healing 
 
         period benefits up until August 26, 1985, and that the evidence 
 
         showed that claimant had returned to work, and reached maximum 
 
         healing by August 27, 1985.  Claimant failed to show entitlement 
 
         to healing period benefits subsequent to August 27, 1985.  
 
         Neither claimant nor defendants raised as an issue on appeal to 
 
         the commissioner the question of healing period benefits.  
 
         Claimant states in the application for an order nunc pro tunc:
 
         
 
                 Claimant did not appeal the original decision because he 
 
              believed he would receive 125 weeks of benefits under that 
 
              decision, and he did not appeal the Industrial 
 
              Commissioner's decision because he would obtain 105 weeks of 
 
                                                
 
                                                         
 
                   benefits under that decision.  He assumed that his claim for 
 
              healing period benefits had been refused.
 
         
 
              The deputy's decision awarded 105 weeks of permanent partial 
 
         disability benefits, commencing August 27, 1985.  Claimant had 
 
         previously been paid his healing period benefits for the period 
 
         up until August 27, 1985.  Defendants are entitled to a credit 
 
         for healing period benefits previously paid against any healing 
 
         period benefits ordered in the arbitration decision.  However, as 
 
         entitlement to healing period benefits was not established at the 
 
         arbitration hearing, no healing period benefits were ordered. 
 
         Permanent partial disability benefits were ordered, and 
 
         defendants are entitled to receive credit for any permanent 
 
         partial disability benefits previously paid.  Defendants would 
 
         also be entitled to a credit against permanent partial disability 
 
         benefits for any overpaid healing period benefits.  There is no 
 
         claim by the parties nor evidence in the record to indicate that 
 
         claimant was overpaid healing period benefits.  To hold that 
 
         defendants are entitled to a credit for healing period benefits 
 
         paid against permanent partial disability benefits due would, in 
 
         effect, reduce the permanent partial disability award by 32.429 
 
         weeks.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants George A. Hormel & Co., and Liberty Mutual 
 
         Insurance Company shall pay unto claimant thirty-two point four 
 
         two nine (32.429) weeks of healing period benefits at the rate of 
 
         two hundred seventy-seven and 64/100 dollars ($277.64) per week.
 
         
 
              That defendants George A. Hormel & Co., and Liberty Mutual 
 
         Insurance Company are to be given credit for healing period 
 
         benefits previously paid.
 
         
 
              That defendants George A. Hormel & Co., and Liberty Mutual 
 
         Insurance Company shall pay unto claimant one hundred five (105) 
 
         weeks of permanent partial disability benefits at a rate of two 
 
         hundred seventy-seven and 64/100 dollars ($277.64) per week from 
 
         August 27, 1985.
 
         
 
              That defendants George A. Hormel & Co., and Liberty Mutual 
 
         Insurance Company are to be given credit for permanent partial 
 
         disability benefits previously paid, if any.
 
         
 
              Signed and filed this 20th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
                                                
 
                                                         
 
         Mr. E. W. Wilke
 
         Attorney at Law
 
         826 1/2 Lake St.
 
         P.O. Box 455
 
         Spirit Lake, Iowa  51360
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319